Bozer v. Higgins

• Decision Date: 05 November 1992
• Citation: 596 N.Y.S.2d 634,157 Misc.2d 160
• Parties: Alan J. BOZER, Petitioner, For a Judgment Pursuant to CPLR Article 78 v. Thomas HIGGINS, Sheriff of the County of Erie, and the Office of Court Administration, Respondents.
• Court: New York Supreme Court

Page 634

596 N.Y.S.2d 634

157 Misc.2d 160

Alan J. BOZER, Petitioner For a Judgment Pursuant to CPLR Article 78 v. Thomas HIGGINS, Sheriff of the County of Erie, and the Office of Court Administration, Respondents.

Supreme Court, Erie County.

Nov. 5, 1992.

Albrecht Maguire Heffern & Gregg, P.C., Buffalo, for petitioner.

Patrick H. NeMoyer, Buffalo, for respondent Thomas Higgins, Sheriff of the County of Erie.

Michael Colodner, New York City, for respondent Office of Court Administration.

ROBERT E. WHELAN, Justice.

Petitioner, ALAN J. BOZER, ESQ., an attorney admitted to practice in the courts of the State of New York, brings this Article 78 proceeding and seeks to (1) restrain and enjoin the respondents from limiting, restricting or prohibiting free attendance of the public sittings of the Court in Erie County Hall, Buffalo, New York, (2) determine that current magnetometer searches are unconstitutional and contrary to the Judiciary Law, (3) declare that the relevant policies of the respondent Office of The Court Administration ("OCA") are unconstitutional and violative of the state law and (4) for an award of costs, expenses and reasonable attorney's fees.

Respondents HIGGINS and OCA oppose said petition and seek an award of costs, expenses and reasonable attorney's fees.

BACKGROUND:

Erie County Hall in Buffalo, New York, houses Family, County, Surrogate's and Supreme Court's criminal, civil and matrimonial parts. In December 1988 walk-through metal detectors (magnetometers) were installed at the two building entrances at the request and direction of the Administrative Judge for the Eighth Judicial District. Magnetometers had previously been installed in various New York City Courts as early as 1985.

The decision to place magnetometers in Erie County Hall was based upon evidence that courtrooms, especially Family and Supreme Courts handling matrimonial and related actions have an increased potential for violence. Also, there existed a lack of security and increased threats made against Judges.

According to the OCA Rules and Procedures Manual, Subsection 2.60 Security Posts, the procedure for persons entering the building is as follows. All persons wishing to enter a Court facility are requested to remove all metal objects from their pockets and pass through the magnetometer. In addition, any package or bag is opened in view of the owner and searched for weapons. If the magnetometer gives a positive reading the individual is requested to further look for metal objects and passes through the magnetometer a second time. If a positive reading continues, then the individual is searched with a hand scanner until the metal objects are discovered. At any time during the entire process a person may terminate the search, collect his or her belongings and leave Erie County Hall. Since 1991 alone, over 12,000 weapons have been discovered including firearms, knives and razors using this procedure at Erie County Hall.

Building employees and those with official identification are permitted to bypass the metal detector security clerk. Attorneys licensed to practice in New York courts may obtain an official identification card, thereby permitting the attorney to bypass the magnetometers and briefcase security checks.

THE INCIDENT:

Petitioner's verified affidavit of August 24, 1992, states that on August 20, 1992 at 10:30 A.M. he went to Erie County Hall for the purpose of a sitting of the Erie County Court.

Upon his arrival at the building he proceeded through the metal detector. However, he objected to the opening of his briefcase by the Deputy Sheriff at the security station. The petitioner was informed that the procedures required the officer to inspect the inside of the briefcase. Petitioner refused to allow the inspection, as was his right, and voluntarily left the building.

Subsequently he returned without his briefcase and was granted entrance after passing through the metal detector as he previously had done.

Thereafter, petitioner brought this Article 78 proceeding.

Petitioner cites three (3) reasons why his petition should be granted. Each will be addressed below.

(1) Petitioner asserts that respondents have no grant of authority from the New York State Legislature to promulgate the security policy. He relies on Boreali v. Axelrod, 71 N.Y.2d 1, 523 N.Y.S.2d 464, 517 N.E.2d 1350 (1987) and Criminal Procedure Law Section 140.50 and the Judiciary Law Section 212(1).

In this assertion, petitioner entirely misapprehends the constitutional structure of the State of New York. Very clearly Article VI of the New York State Constitution details the judiciary as a separate independent branch of state government. Section 28 of that article empowers the administrative supervision of the Courts to the Administrative Board, comprised of the Chief Judge of the Court of Appeals, as Chairman, and the Presiding Justice of the Appellate Division of the Supreme Court of each Judicial department.

The Chief Judge upon the advice and consent of the administrative board appoints a Chief Administrator who serves at the pleasure of the Chief Judge. Nowhere in Article VI are any powers granted to the Executive or Legislature over the administration of the Unified Court System.

Indeed Judiciary Law Section 212 relied upon by petitioner reinforces this constitutional scheme. Therein, the Chief Administrator "on behalf of the Chief Judge, shall supervise the administration and operation of the Unified Court System." Those duties and powers are exercised by the Chief Administrator in accordance with "such standards and administrative policies as may be promulgated pursuant to section twenty-eight of article six of the constitution".

Further, this broad constitutional authority can not be overturned or undermined by a narrow interpretation of the Criminal Procedure Law statute on warrantless arrests. CPL Section 140.50 relied upon by the petitioner extends to police officers the authority "to make a limited intrusion upon the liberty of persons in public places for investigative purposes, when the attendant circumstances provide an articulable basis to suspect involvement in criminal activity, even though there is insufficient basis for reasonable cause to arrest." CPL Section 140.50, McKinney's, Volume 11A Practice Commentaries, by Peter Preiser, p. 571.

Petitioner's interpretation that this statutory subsection is the entire legal universe on the question blatantly ignores Article XIX of the Constitution. The Legislature did not amend the Constitution as petitioner's argument presupposes.

Finally, Boreali v. Axelrod, 71 N.Y.2d 1, 523 N.Y.S.2d 464, 517 N.E.2d 1350 (1987) cited by the petitioner concerns the Public Health Council. This is an administrative agency, created by the Legislature with a specifically defined function and narrow grant of authority. The holding in that case is irrelevant to petitioner's request in the issue before this Court.

(2) Petitioner's second reason relied upon is that Judiciary Law Section 4 calls for sittings of Courts to be public and that case law provides for Courts to be held in public buildings.

That statute does provide for certain limitations to the public sittings of Courts. While none is applicable here, petitioner's Memorandum of Law to the Court would have one believe "that NO limitation or restraint be placed on attendance" (Memorandum of Law on Return of Petition, September 23, 1992, p. 4, original emphasis).

Beyond this, petitioner's own affidavit recites the fact that he attended a public sitting of Erie County Court on the day in question. Nowhere does he allege that court proceedings were closed to the public or held in secret. His reliance on Herald Co., Inc. v. Weisenberg, 89 A.D.2d 224, 455 N.Y.S.2d 413 (4th Dept.1982), is misplaced. That case concerns an Administrative Law Judge's holding an unemployment claim hearing in a closed proceeding without a compelling reason.

Petitioner also relies on cases that factually are too dissimilar to the case at bar to be of any use. In People v. Schoonmaker, 65 Misc.2d 393, 317 N.Y.S.2d 696 (Greene Co. 1971), the Court found that a town justice holding an impromptu sitting of the Court in a police barracks at 6:30 A.M. in a different and non-contiguous County was a violation of Judiciary Law Section 4. In People v. Rose, 82 Misc.2d 429, 368 N.Y.S.2d 387, the Rockland County Court found that holding an arraignment and trial in a classroom of a religious school for girls did not comport with the requirement that Court sessions be held in a public building.

In Bowles v. State, 186 Misc. 295, 59 N.Y.S.2d 839, the Court of Claims held that a public building had to be kept reasonably safe for public use, and that the State could be sued in a slip and fall case occurring in a Court building.

(3) Petitioner's third reason is that the practice violates Article I of the New York State Constitution, and the First, Fourth and Fourteenth Amendments of the United States Constitution.

Under Federal case law, magnetometer searches at federal buildings have been found to be constitutionally permissible for twenty (20) years. (See Barrett v. Kunzig, 331 F.Supp. 266 (M.D.Tenn.1971), cert. denied, 409 U.S. 914, 93 S.Ct. 232, 34 L.Ed.2d 175 (1972) and Downing v. Kunzig, 454 F.2d 1230 (6th Cir.1972)). These cases rely upon the premise that the government's substantial interest in maintaining the safety of federal buildings for those persons enjoying their use, outweighs the personal inconvenience to individuals undergoing the minimally intrusive magnetometer search.

Similarly, the federal Courts have upheld magnetometer searches at state and local courthouses for almost fifteen (15) years. McMorris v. Alioto, 567 F.2d 897 (9th Cir.1978) presents a similar fact pattern confronting this Court.

There an attorney was required to pass through a magnetometer prior to gaining entry to the Hall of Justice in San Francisco, California. He...