Lead Opinion
OPINION OF THE COURT
While inherent power resides in the courts of record in this State to impose financial sanctions upon parties or their attorneys who engage in abusive litigation practices, based upon the circumstances of the case before us we conclude that Special Term’s exercise of its inherent power constituted an improvident exercise of discretion and, therefore, the order, insofar as it imposed such a sanction, must be reversed.
For purposes of this appeal, the pertinent facts may be simply stated. Plaintiff wife was granted a judgment of divorce in 1975
Our determination of the propriety of this fine begins with a brief review of the various sources of authority permitting a court to direct a party or its attorney to pay a sum of money.
Pursuant to CPLR articles 81 and 82 a court may, in its discretion, award costs in an action, on a motion or on an appeal. Costs generally are defined as financial allowances authorized by statute to reimburse the successful party for expenses incurred in litigation (see generally, 24 Carmody-Wait 2d, NY Prac § 148:2, at 519-520). However, the amount of costs which may be awarded are strictly limited by statute to fixed amounts bearing no relationship to the amount actually expended by the party in successfully asserting its rights in court. For example, in the instant case, involving a motion to punish for contempt, the Supreme Court, Suffolk County, could have awarded costs only in an amount not exceeding $20 (CPLR 8202), plus disbursements representing the reasonable and necessary expenses of the motion (CPLR 8301 [b]). Because the power to award costs is derived solely from statute (see generally, 24 Carmody-Wait 2d, NY Prac § 148:4, at 521-524), it is clear that the imposition of a $500 fine in this case by Special Term did not constitute an award of costs and disbursements within the meaning of the pertinent provisions of the CPLR.
A second source of authority for the imposition of financial sanctions is the contempt power. The power to punish for crimi
We further conclude that the fine imposed herein cannot be justified as a valid award of attorney’s fees. It is generally recognized that counsel fees are merely incidents of litigation which are not compensable or recoverable in the absence of specific statutory authority or some contractual obligation (City of Buffalo v Clement Co.,
Under CPLR 5015 a court may grant relief from a judgment or order “upon such terms as may be just” (CPLR 5015 [a]). Also, under CPLR 2004, a court may extend the time fixed by statute for doing any action “upon such terms as may be just”. Although these statutes do not expressly provide for the imposition of money sanctions, it is now well settled that such sanctions may be imposed, for example, as a condition for relieving a party of a default (CPLR 5015 [a] [1]; Piazza v Hastings Assoc.,
In addition, it is now well settled that monetary sanctions may be imposed pursuant to CPLR 3126 as a penalty for refusal to comply with an order of discovery or a refusal to disclose (see, e.g., Renford v Lizardo,
However, none of the foregoing statutes constitute authority for the fine imposed by Special Term in this case. In fact, there appears to be no statute, short of contempt, which even colorably empowers a court to impose a financial assessment upon a party or its attorney for general abuse of the judicial process, such as repeated filings of frivolous motions. Nevertheless, we conclude that such power is derived from the so-called “inherent powers doctrine”.
It is our view that courts of record (Judiciary Law § 2) are vested with inherent powers, which are neither derived from nor dependent upon express statutory authority, and which permit such courts to do all things reasonably necessary for the administration of justice within the scope of their jurisdiction (Langan v First Trust & Deposit Co.,
Despite the broad language employed in those cases to describe the “inherent powers doctrine”, the doctrine has not been widely applied. It has, however, been utilized as a basis for calendar control, e.g., the dismissal of actions for nonprosecution and the granting of preferences. In Plachte v Bancroft Inc. (
A closely related aspect of the inherent power is that which vests the court with the authority to assign individual cases or classes of cases to a particular justice or part thereof (see, e.g., People v Granatelli,
Further, courts have the inherent power to formulate and promulgate rules of practice (Hanna v Mitchell,
In addition, a court has the inherent power to take necessary steps to permit it to exercise its jurisdiction and to protect it from unreasonable restraint. For example, a court has the inherent power to make an ex parte order requiring the legislative branch of government to secure suitable facilities for the transaction of court business (In re Courtroom & Off. of Fifth Branch Circuit Ct., 148 Wis 109,
The power to correct mistakes or errors in judicial records is also said to be among the powers that are inherently possessed by courts (People v Minaya,
Finally, although the contempt power has now been codified in this State {see, Judiciary Law art 19), it has long been recognized that courts have the inherent power to enforce respect for and compliance with their judgments and mandates by punishment for contempt, which power is not dependent upon any statute (Roadway Express v Piper,
The foregoing examples are merely illustrative, and are not meant to define the exact perimeters of the power inherent in the courts of record of this State. Indeed, the inherent power, is, by its very nature, not susceptible to precise definition (De Lancey v Piepgras,
In Gottlieb v Edelstein (
Finally, in Aslanic v Southwest Sewer Dist. (
The Federal courts have not always taken a consistent view on this question. Thus, in Gamble v Pope & Talbot (307 F2d 729, 731 [3d Cir], cert denied sub nom. United States Dist. Ct. v Mahoney,
The conclusion that we draw from the foregoing cases is that there is an inherent power vested in all courts of record in this
Applying the aforementioned principles to the case at hand, we conclude that the imposition of a $500 fine constituted an improvident exercise of discretion vested in Special Term under the “inherent power doctrine”. Although defendant had clearly engaged in an abuse of the judicial process, he had not violated any statute or rule, nor any order or direction of the court. Moreover, defendant was a pro se litigant and, therefore, his actions should not have been measured against the rules of conduct for attorneys proscribing the commencement and maintenance of frivolous or vexatious litigation (Code of Professional Responsibility, DR 7-102 [A] [1], [2]). Thus, we conclude that Special Term’s injunction, which prohibited defendant from commencing further proceedings against plaintiff until the fine and all other legal fees previously awarded to plaintiff had been paid, constituted, aside from the imposition of the fine, an appropriate and sufficient judicial response under the circumstances. Because we are reversing so much of the order as imposed the fine, defendant will be enjoined from instituting further litigation against plaintiff only until such time as all other legal fees previously awarded to her have been paid. Of course, should defendant bring additional proceedings while the order enjoining him from doing so remains in effect, Special Term could then consider additional remedies, including the contempt power or, in the sound exercise of its discretion, the inherent power to impose monetary sanctions.
Notes
. Historically, inherent powers have been said to reside only in courts of superior jurisdiction, and not in inferior courts, i.e., courts not of record (Matter of Burge [Oceanic Trading Co.],
. In his dissenting opinion, Chief Judge Biggs stated: “The power of a court to impose appropriate and reasonable sanctions upon those admitted to its bar is a familiar phenomenon and lies within the inherent power of any court of record” (Gamble v Pope & Talbot, 307 F2d 729, 735).
Concurrence Opinion
(concurring in the result). I agree that there should be a reversal, but I cannot agree that the judicial system possesses some amorphous inherent power that authorizes judges to impose fiscal sanctions upon those whose conduct is deemed to constitute an abuse of their right of access to the judicial system but which neither falls within the ambit of the various statutory vehicles for imposing sanctions nor fulfills the stringent requirements of a tort action for abuse of process or malicious prosecution. I find no basis for concluding that any inherent power to punish abuse of the judicial system not rising
The courts of this State have long jealously guarded “the strong public policy of open access to the courts for all parties without fear of reprisal” (Curiano v Suozzi,
Our system of justice provides a variety of carefully crafted remedies and sanctions for dealing with abusers of the system. The basic sanction, of course, is the contempt power as set forth and described in Judiciary Law article 19, discussed in more detail below. Additionally, in a proper case, a private party may seek to vindicate rights and obtain recompense through a malicious prosecution action (see, e.g., Burt v Smith,
Similar considerations underlie the reluctance of American jurisdictions to allow awards of attorney’s fees to prevailing parties. As the Court of Appeals declared in Mighty Midgets v Centennial Ins. Co. (
Despite this strong public policy of encouraging and ensuring open and unimpeded access to the courts, the majority of my colleagues have concluded that there exists an immense and undefined inherent judicial power, seemingly bounded only by constitutional restraints, to impose unspecified monetary sanctions upon attorneys or litigants who engage in conduct which is deemed by a particular judge to be abusive or negligent, such as filing a frivolous lawsuit or appeal or making a meritless motion. The determination of just what type of conduct warrants the imposition of a sanction, the amount of the sanction, whether it is to be imposed on the attorney or the litigant, and whether it is to be paid to the court or the opposing party must of necessity be left largely to the discretion of the individual judge. No limitation is placed upon the amount of the sanction, no clear guidelines are established for its exercise, and only the vaguest suggestions as to appropriate procedural safeguards are made. Thus, by a simple act of jurisprudential legerdemain, my col
No longer will a defendant who feels he has unjustly been sued be limited to recover damages for malicious prosecution or abuse of process, despite an unbroken line of precedent holding that these are his only remedies (see, e.g., Curiano v Suozzi, supra; Drago v Buonagurio, supra). Rather, he need merely persuade a judge that the case is frivolous and he may then request the imposition of sanctions to recompense him for his losses. Moreover, such damages may be assessed against an attorney who has acted negligently, despite the well-settled rule that “when baseless legal proceedings are instituted by a lawyer on behalf of a client, the courts have not recognized any liability of the lawyer to third parties therefor where the factual situations have not fallen within one of the acknowledged categories of tort or contract liability” (Drago v Buonagurio, supra, at pp 779-780).
Also troubling is the fact that frivolity, like beauty, is often in the eyes of the beholder. An action or motion which may appear frivolous to one judge may in fact be the beginning of a new development in the law. Many causes of action and procedures which are commonplace today would at one time have been deemed frivolous. For example, prior to the swift demise of the citadel of privity (see, Codling v Paglia,
Even aside from these fundamental concerns, however, I must take issue with the very foundations of the majority’s determination that the courts have an inherent power “to require an abusive or neglectful litigant or attorney to pay a sum of money to the opposing party, when such party has suffered by reason of the abusive conduct; alternatively, the Judge may direct that such payment be made directly to the court, when it appears that the efficient disposition of the business before it has been impaired by reason of the conduct in question”. If there ever was an inherent power to act against errant lawyers or litigants, it derived from the power to punish for contempt, at one time limited only by constitutional restraints and now preempted by the Legislature (see, Judiciary Law art 19; Sherwin v People,
Although the majority purports to distinguish this power from the contempt power, the latter has traditionally been used to effectuate the two purposes enunciated by the majority as the aim of this new-found power to impose sanctions. Thus, a civil or private contempt proceeding is designed to protect private parties from behavior which interferes with their rights as litigants (see, Matter of Watson v Nelson,
At common law, courts were deemed to have extremely broad contempt powers (see, Nye v United States,
Similarly broad contempt powers have also been exercised by the courts of our Nation. A comprehensive compilation of such cases is to be found in Stewart Rapalje’s Treatise on Contempt (NY 1890). Illustrative of the scope of the contempt power are cases in which a party was held in contempt for conduct such as commencing an action that did not present an actual case or controversy, commencing an action in replevin to regain property which had been attached or which was in the custody of a court officer, suing an incompetent without permission of the court, commencing an action in a county court upon a claim previously rejected in a suit in a Court of Chancery (Rapalje, Contempt §25 [1890]) and serving process in the actual or constructive presence of the court (Rapalje, op. cit. § 23, at 28). In light of the broad range of this traditional contempt power, I find it impossible not to conclude that the power to impose fiscal sanctions now recognized by the majority, if it exists at all, must be merely a part of the contempt power.
So viewed, the courts are not free to exercise that power in the manner envisioned by my colleagues, for it is now beyond
If, as I believe to be true, the power to impose sanctions for abusive practices is merely a variety of the contempt power, then the sanction power is aimed at conduct which would be punishable as contempt were it not for the limitations found in Judiciary Law article 19. Thus, the necessary implication of my colleagues’ conclusion is that the Legislature’s intrusion into the area of contempt is not preemptive and that some varieties of contempt still exist that have not been covered by article 19, that the sanctions that may be imposed also are not limited by article 19, and finally that the determination of the contempt and the imposition of the sanctions are not restricted by the procedural safeguards of article 19.
Although it may well be that there are certain inherent powers of a constitutionally established court which cannot be impaired by legislative action, the mere fact that a power was once deemed inherent does not preclude legislative limitation upon or negation of that power (see, People v Carter,
In short, the “inherent power” which supposedly supports the authority to impose sanctions is precisely that power that the contempt statutes limited. Those limitations having long been recognized as an effective restraint upon the power of the judiciary, the courts of this State no longer have the authority to impose sanctions that are not authorized by the contempt statutes or some other legislative enactment. This principle was succinctly expressed over a century ago in Rutherford v Holmes (
The absence of this power to impose fiscal sanctions will hardly leave the courts defenseless against abusive practices, for, as discussed above, there exist several remedies for such behavior. Thus, the civil contempt power, although limited by statute, is still an extensive one. In addition to listing several specific types of misconduct as contempt, Judiciary Law § 753 (A) (8) grants a court of record the power to penalize:
“a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in any of the following cases * * *
“8. In any other case, where an attachment or any other proceeding to punish for a contempt, has been usually adopted and practiced in a court of record, to enforce a civil remedy of a party to an action or special proceeding in that court, or to protect the right of a party.”
If the majority’s sudden invocation of an inherent power to punish represents a response to a judicial crisis, it is curious that those charged with management of the judicial system have not proposed any Draconian remedy that would inflict financial penalties upon the bringers of meritless actions or proceedings at either the civil or criminal level. It is notable that the courts of other States have concluded that there exists no power to impose sanctions for abusive litigation practices (see, e.g., Bauguess v Paine, 22 Cal 3d 626,
Rubin and Eiber, JJ., concur with Bracken, J.; Lazer, J. P., concurs with a separate opinion.
Order of the Supreme Court, Suffolk County, dated November 10, 1983, reversed insofar as appealed from, as a matter of discretion, without costs or disbursements, and the provision imposing a fine upon defendant in the sum of $500 is deleted.