Bozer v. Higgins

• Decision Date: 27 May 1994
• Citation: 613 N.Y.S.2d 312,204 A.D.2d 979
• Court: New York Supreme Court — Appellate Division
• Parties: Matter of Alan J. BOZER, Appellant, v. Thomas HIGGINS, Sheriff of the County of Erie, and Office of Court Administration, Respondents. Albrecht, Maguire, Heffern & Gregg, P.C., Appellant.

Page 312

613 N.Y.S.2d 312

204 A.D.2d 979

Matter of Alan J. BOZER, Appellant, v. Thomas HIGGINS, Sheriff of the County of Erie, and Office of

Court Administration, Respondents.

Albrecht, Maguire, Heffern & Gregg, P.C., Appellant.

Supreme Court, Appellate Division,

Fourth Department.

May 27, 1994.

David Gerald Jay, Buffalo, for appellant.

Patrick H. Nemoyer, Erie County Atty. by Julie Apter, Buffalo, for respondent, Thomas Higgins.

Michael Colodner by Raymond S. Hack, New York City, for respondent, Office of Court Admin.

Before GREEN, J.P., and PINE, BALIO, CALLAHAN and BOEHM, JJ.

MEMORANDUM:

Petitioner, an attorney, commenced this CPLR article 78 proceeding against the Sheriff of the County of Erie and the Office of Court Administration (OCA), seeking a judgment enjoining respondents from restricting free access to the Erie County Courthouse by means of physical and electronic searches of persons entering the courthouse. Petitioner also sought a declaration that those searches are unconstitutional. Supreme Court dismissed the petition and imposed sanctions against petitioner and his law firm on the ground that the proceeding "is completely without merit in law or fact and is a frivolous lawsuit" (Bozer v. Higgins, 157 Misc.2d 160, 167, 596 N.Y.S.2d 634).

Supreme Court properly determined that OCA has the authority to implement the searches as security measures to protect the courts and those persons using the courts (see, Legal Aid Socy. of Orange Co. v. Crosson, 784 F.Supp. 1127). Such limited courthouse searches to screen for weapons are reasonable under the Federal and State Constitutions (see, U.S. Const., 4th Amend; N.Y. Const., art. I, § 12; People v. Rincon, 177 A.D.2d 125, 581 N.Y.S.2d 293, lv denied 79 N.Y.2d 1053, 584 N.Y.S.2d 1021, 596 N.E.2d 419; Legal Aid Socy. of Orange Co. v. Crosson, supra; see also, McMorris v. Alioto, 567 F.2d 897; Downing v. Kunzig, 454 F.2d 1230; Justice v. Elrod, 649 F.Supp. 30, affd 832 F.2d 1048; Barrett v. Kunzig, 331 F.Supp. 266, cert denied 409 U.S. 914, 93 S.Ct. 232, 34 L.Ed.2d 175). Because petitioner sought declaratory relief, however, the court erred in failing to make a declaration in the judgment. Thus, we modify the judgment by granting judgment declaring that those searches are constitutional and not violative of the Judiciary Law.

We further modify by vacating those parts of the judgment imposing sanctions against petitioner and his law firm. In our view, the court abused its discretion in imposing sanctions under section 130-1.1(a) of the Rules of the Chief Administrator of the Courts (22 NYCRR). That section provides that financial sanctions may be imposed upon any party or attorney in a civil action or proceeding who engages in frivolous conduct. Conduct is frivolous within the meaning of the rule only if "it is completely without merit in law or fact and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law" (22 NYCRR 130-1.1[c][1].

This proceeding does not approach the type of groundless litigation envisioned by the rule (see, e.g., Matter of Minister, Elders & Deacons of Refm. Prot. Dutch Church of City of N.Y. v. 198 Broadway, 76 N.Y.2d 411, 413, 559 N.Y.S.2d 866, 559 N.E.2d 429 [postappeal motion "plainly untimely", "utterly without legal support" and evidently undertaken for purpose of delay]; Vicom, Inc. v. Silverwood Dev., 188 A.D.2d 1057, 1058, 591 N.Y.S.2d 919 [sanctions awarded for maintaining action after valid jurisdictional defense had been raised and "repeating groundless and misleading assertions" to oppose defense]. On the contrary, this proceeding raises serious constitutional challenges to respondents' warrantless searches of persons entering Erie County Hall. The fact that the weight of the authority favors respondents or that those challenges were unlikely to succeed does not render petitioner's conduct frivolous (see, Nolan & Co. v. Daly, 170 A.D.2d 320, 566 N.Y.S.2d 253; Matter of Schulz v. Washington County, 157 A.D.2d 948, 950, 550 N.Y.S.2d 446). Further, it is significant that there is only one New York court decision upholding the type of courthouse search at issue in this proceeding (see, People v. Rincon, supra ), and that decision did not address many of the arguments raised by petitioner. Given the paucity of controlling authority on the matters raised in the petition, we cannot conclude that this proceeding "is completely without merit in law or fact" (22 NYCRR 130-1.1[c][1].

Judgment modified on the law and as modified affirmed without costs and judgment granted.

All concur except BALIO and CALLAHAN, JJ., who dissent in part and vote to affirm in the following Memorandum:

BALIO and CALLAHAN, dissenting in part:

We would affirm the judgment of Supreme Court (Bozer v. Higgins, 157 Misc.2d 160, 596 N.Y.S.2d 634).

Petitioner, an attorney admitted to practice in this State, commenced this article 78 proceeding against the Sheriff of the County of Erie and the Office of Court Administration (OCA) seeking a declaration that the searches of persons entering the courthouse were unconstitutional. The magnetometer searches were instituted by OCA as a security measure to intercept weapons being brought into the courthouse. The Sheriff's Department conducted the searches pursuant to a contract with OCA. Petitioner alleged that, on August 20, 1992, he...