New York State Court of Claims

New York State Court of Claims

BOTTORFF v. STATE OF NEW YORK, #2008-039-076, Claim No. 112407, Motion Nos. M-71985, M-72139


Synopsis


Defendant’s motion to dismiss the claim is granted. The gravamen of the claim is that claimant has been denied his right of access to the courts for reasons that discriminate against him because of is religious beliefs. Inasmuch as the claim does not assert a cause of action over which the Court has jurisdiction, defendant’s motion is granted

Case Information

UID:
2008-039-076
Claimant(s):
CHET ALLEN BOTTORFF
Claimant short name:
BOTTORFF
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK1 1.The Court has, sua sponte, amended the caption to reflect the State of New York as the only proper Defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112407
Motion number(s):
M-71985, M-72139
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Chet Allen Bottorff, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Joel MarmelsteinAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 5, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Claimant asserts that he is a “religious objector to the possession and/or use of photo identification based upon personal privately held religious convictions required by Torah Law” (Claim, ¶ 15). On a number of occasions in 2005 and 2006, he went to the New York State Office Building in Utica, New York to attend proceedings held in connection with a Supreme Court matter, Torres v Scaramella (Index No. CA2004-002316).[2] On a number of occasions in 2005 (March 17, April 14, September 2, and December 22), claimant was allowed to enter the building despite his lack of photo identification (Claim ¶¶ 18-20). He was also allowed to wear a head covering after informing the guard that it was being worn for religious reasons (Claim, ¶¶ 18-20). On the last-noted date, December 22, 2005, claimant was informed by the trial judge that he would have to obtain photo identification or he would not be allowed into the building in the future (Claim ¶ 39).

On March 8, 2006, claimant attempted to enter the New York State Office Building for the purpose of speaking with the trial judge’s law clerk or secretary, but he was denied admittance because he did not have proper identification (Claim ¶¶ 51-52). On March 16, 2006, he was allowed to enter in order to argue a motion, although he had to be escorted to the courtroom by a security officer (Claim ¶ 69). On May 25, 2006, when claimant again appeared for the purpose of arguing a motion, he was denied entrance (Claim ¶¶ 74-80).

The claim asserts eleven separate causes of action arising from these events: two causes of action for denial of access and obstruction; civil conspiracy; prima facie tort; political class discrimination; two causes of action for political genocide, oppression and persecution; religious discrimination; failure to train; failure to supervise; and negligent retention. As damages, claimant seeks several amounts (63,316; 100,398; and 163,714) of troy ounces of .999 fine silver, to be paid in single units of precisely one troy ounce.

In lieu of answering, defendant moves the Court for an order dismissing the claim on the grounds that the causes of action alleging denial of access to the courts is based on a right protected by the United States Constitution, which cannot give rise to a cause of action in this Court (Will v Michigan Dept. of State Police, 491 US 58 [1989]; Matter of Thomas v New York State Temporary State Comm. on Regulation of Lobbying, 83 AD2d 723 [3d Dept 1981], affd 56 NY2d 656 [1982]) and that all other causes of action must fail because there has been no actual damage.

Shortly after the motion to dismiss was commenced, and possibly in response to the motion, claimant served on defendant an amended claim (annexed as an exhibit to Defendant’s second Notice of Motion [Document No. 3]). The amended claim was not filed with the Court, however, and thus defendant’s motion to dismiss the amended claim (Motion No. M-72139) is denied as unnecessary. Substantively, the amended claim appears to change little except to add another date (June 22, 2006) on which claimant was allegedly refused entrance to the State Office Building and to substitute causes of action based on alleged violations of the New York State Constitution in place of those based on the United States Constitution.

The gravamen of the instant claim is that claimant has been denied his right of access to the courts for reasons that discriminate against him because of his religious beliefs. All of the causes of action asserted in the claim are based, either directly or indirectly, on the proposition that it is unlawful for the State to bar claimant from the courthouse on the ground that he lacks proper photographic identification when it is a tenet of his religion to refuse to have such identification.

In New York, there is no per se constitutional right of access to the civil courts (see Matter of Colton v Riccobono, 67 NY2d 571, 576 [1986]). The State Constitution does, however, guarantee “free exercise and enjoyment of religious profession and worship, without discrimination or preference” (Article 1, §3) and equal protection of the laws, which includes freedom from discrimination “because of race, color, creed or religion” (Article 1, §11). Assuming, arguendo, that the events described above would constitute a violation of those provisions, in order to recover money damages for a “constitutional tort,” claimant would have to prove 1) that the provision is self-executing, 2) that an award of money damages would further the purpose of the provision, would be necessary to make it effective and to deter government conduct, and would make the claimant whole; 3) that the provisions impose a clearly-defined duty on the State officers and/or employees; and 4) that declaratory and injunctive relief are inadequate (Brown v State of New York, 89 NY2d 172 [1996]).

The requirement that an award of money damages be necessary to make the constitutional provision effective is generally interpreted to mean that the claimant must have no other alternative remedy, either in common law or under a statute. It must be a case of “damages or nothing,” where money damages must be available if the injured party is to be provided with any remedy and future violations of the constitutional guarantee are to be deterred (id. at 192; De La Rosa v State of New York, 173 Misc 2d 1007, 1010 [Ct Cl 1997]; see also Lyles v State of New York, [770 NYS2d 81, 82], 2 AD3d 694 [2d Dept 2003]; Thomas v State of New York, 10 Misc 3d 1072(A) [Ct Cl 2005]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]). Claims of religious discrimination may be pursued under New York’s Human Rights Law (Executive Law § 296).

In any event, the right to freedom of religion is not absolute, and the public’s interest in such a right must often be weighed against other legitimate goals, such as providing security in courthouses and other government buildings (see e.g. Matter of Rivera v Smith, 63 NY2d 501 [1984] [requiring such a balancing in correctional facilities, “where confinement and order are necessary”]; Matter of Cancel v Goord, 278 AD2d 321 [2d Dept 2000], lv denied 96 NY2d 707 [2001]). Legislative restrictions that limit the practice of religious beliefs can be appropriate where such actions pose a substantial threat to public safety, peace or order (Wisconsin v Yoder, 406 US 205, 230 [1972]; Catholic Charities of Diocese of Albany v Serio, 7 NY3d 510 [2006]). It has been held, in fact, that requiring a member of the Amish faith to produce a photo identification in order to obtain a pistol permit, pursuant to a neutral law of general applicability that is not specifically directed at a religious practice, and that serves a legitimate public safety function, does not violate the State Constitution’s guarantee of free exercise of religion (In re Matter of Miller (McMahon), 252 AD2d 156 [4th Dept 1998]; see also Valov v Dept. of Motor Vehicles, 132 Cal App 4th 1113 [Cal Ct. App 2005][requirement that a driver’s license contain a photograph outweighs religious belief with respect to requirement that a driver’s license must contain a photograph]).

However, inasmuch as the claim does not state a cause of action over which this Court has jurisdiction (see Brown v State of New York, 89 NY2d 172 [1996]; Lyles v State of New York, 2 AD3d 694 [2003]), defendant’s motion is granted.

Accordingly, Claim No. 112407 is hereby dismissed.


May 5, 2008
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:

  1. Notice of Motion (Motion No. M-71985) and Supporting Affirmation of Joel L. Marmelstein, AAG, with annexed Exhibits;
  1. Reply Affirmation of Joel L. Marmelstein, AAG, with annexed Exhibit;
  1. Notice of Motion (Motion No. M-72139) and Supporting Affirmation of Joel L. Marmelstein, AAG, with annexed Exhibit;
  1. Memorandum of Law and Points and Authorities (“Claimant’s First Argument”) of Chet Allen Bottorff, pro se;
  1. Memorandum of Law and Points and Authorities (“Claimant’s Second Argument”) of Chet Allen Bottorff, pro se;
  1. Reply Affirmation of Joel L. Marmelstein, AAG, with annexed Exhibit;
  1. Memorandum of Law and Points and Authorities (“Claimant’s Third Argument”) of Chet Allen Bottorff, pro se;
  1. Memorandum of Law and Points and Authorities (“Claimant’s Fourth Argument”) of Chet Allen Bottorff, pro se;
  1. Memorandum of Law and Points and Authorities (“Claimant’s Fifth Argument”) of Chet Allen Bottorff, pro se; and
  1. Memorandum of Law and Points and Authorities (“Claimant’s Sixth Argument”) of Chet Allen Bottorff, pro se.

[2]. According to counsel for defendant, claimant’s involvement in the Supreme Court action arises from an assignment of the rights of the plaintiff, Alexis Torres, to claimant. Since receiving the assignment, claimant has appeared pro se in the action against Scaramella.