Brooklyn Surrogate's Court 2005

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Thursday, June 30, 2005

Feinberg Loses Fight to Remain on Bench

New York Law Journal - June 30, 2005
FEINBERG LOSES FIGHT TO REMAIN ON BENCH
by John Caher

ALBANY - In a harshly worded opinion, the Court of Appeals yesterday ended Brooklyn Surrogate Michael H. Feinberg's judicial career. It held that his awarding of millions of dollars in attorney's fees to a friend without demanding the affidavits required by law constituted removable misconduct.

The Court said in a unanimous per curiam opinion that in rubber-stamping - with no oversight - some $8.5 million in estate commissions, to attorney Louis R. Rosenthal, Surrogate Feinberg "demonstrate[d] a shocking disregard for the very law that imbued him with judicial authority." It rejected with apparent disdain Surrogate Feinberg's defense that he had neglected to read the Surrogate's Court Procedure Act (SCPA) and was simply ignorant of his judicial responsibilities.

"Petitioner disregarded the clear statutory mandates of his office repeatedly over the course of more than five years and 475 proceedings, educating himself on the SCPA requirements only in response to a newspaper's investigatory series," the Court said. "Petitioner's consistent disregard for fundamental statutory requirements of office demonstrates an unacceptable incompetence in the law."

Yesterday's ruling was a major victory for the state Commission on Judicial Conduct, which has increasingly invoked its power to punish judges for legal error and professional incompetence. There was never an allegation that Surrogate Feinberg in any way personally benefited from his conduct, only that he had chronically ignored legal requirements in approving millions of dollars in commission for a close personal and political friend.

A key question was whether the commission overstepped its bounds in pursuing a judge for legal errors. Yesterday, the Court said it did not with a key finding that legal error and misconduct are "not necessarily mutually exclusive." The decision seemingly gives the commission license to continue its pursuit of judges whose incompetence or legal neglect crosses the line into judicial misconduct.

Matter of Feinberg v. New York State Commission on Judicial Conduct
, 125, is rooted in a newspaper expose.

The commission launched its inquiry, after the New York Daily News reported on Surrogate Feinberg's awarding of millions of dollars in commissions to Mr. Rosenthal, a law school friend and political contributor whom the judge had appointed counsel to the public administrator.

The commission found that Surrogate Feinberg appointed a marginally qualified friend to a lucrative post, signing off on about $8.5 million in commissions without ever requesting the mandatory affidavit of legal services and virtually always awarding 8 percent of the estate. That is 2 percent more than the norm in New York City's other four boroughs, and 2 percent more than the amount agreed to by the state attorney general and the predecessors of Surrogate Feinberg and Mr. Rosenthal. That extra 2 percent garnered Mr. Rosenthal about $2 million in excessive fees, according to the commission's calculations.

Typically, Mr. Rosenthal requested the extra 2 percent with nothing more than a Post-It note stuck to the final decree, court records show. In every case, the commission alleged, Surrogate Feinberg awarded the excess fee, insinuating that he directed a windfall profit to a chum while ignoring his judicial oversight responsibilities.

Surrogate's Law Skirted

Surrogate Feinberg admitted he had failed to require affidavits as mandated under the Surrogate's Court Procedure Act and, once his neglect was discovered, apologized profusely.

The surrogate claimed he was oblivious of the provision and noted that he ordered affidavits - prospectively and retroactively - as soon as the Daily News probe made him aware of the law. Additionally, Surrogate Feinberg pointed out that his manner of awarding fees was consistent with longtime Brooklyn practice.

Court records show that the firm that preceded Mr. Rosenthal as counsel to the public administrator, Hesterberg & Keller of Brooklyn, also requested the excess fee via Post-It notes and also had that request routinely honored by then-Surrogate Bernard M. Bloom. However, Surrogate Bloom required affidavits of legal service, abiding by the Surrogate's Act and making the transactions with Hesterberg & Keller more transparent.

At the Court of Appeals, the case distilled to whether Surrogate Feinberg committed misconduct and, if so, the gravity of the offense. The Court found grave misconduct, rejecting every defense advanced by the surrogate.

It criticized Surrogate Feinberg for neglecting to read the law, for funneling lucrative commissions to a friend and for neglecting to give individualized attention to the intestate matters over which, as the elected Kings County surrogate, he had assumed responsibility by looking out for the interests of potential heirs and, where there were no heirs, the state.

Strong 'Taint of Favoritism'

The Court also rejected Surrogate Feinberg's argument that the Commission on Judicial Conduct had grossly inflated the total of the alleged overpayments, observing in a footnote that the commission's calculation of an 8 percent award in most cases was on target. By that calculation, Mr. Rosenthal was overpaid by roughly $2 million.

"Petitioner's failure was made all the more egregious by his appointment, without considering other candidates, of a close personal friend and political supporter," the Court said. "While appointment of a friend does not itself convey an appearance of impropriety, when, as here, that appointment is coupled with the unsubstantiated award of several million dollars in fees from estates that, by definition, lack adversarial parties to challenge the practice, the taint of favoritism is strong."

This case, the Court said, "reflects not mere lapses or errors in judgment but a wholesale failure of petitioner's duty, reflecting an indifference if not cynicism toward his judicial office."

It added that Surrogate Feinberg's "failure to abide by the legal requirements of his office, in a manner that conveyed the appearance of impropriety and favoritism, debased his office and eroded public confidence in the integrity of the judiciary."

Attorney General Eliot Spitzer's office has offered to settle any dispute with Mr. Rosenthal for $729,800, an amount the office has described as a "subset" of the overpayment.

The state Surrogate's Association supported Surrogate Feinberg as amicus curiae. It insisted the commission has no business second-guessing the discretionary actions of a judge. But in yesterday's opinion, the Court said a judge does not have discretion to ignore the law.

Commission Administrator and Counsel Robert H. Tembeckjian prosecuted the case. Henry M. Greenberg of Greenberg Traurig in Albany argued for Surrogate Feinberg.

Mr. Tembeckjian said that while "it is never pleasant or easy to remove a judge," it is occasionally necessary.

"I am gratified the Court forcefully affirmed a fundamental principle in this case - that public confidence in the integrity and competence of the judiciary is essential to the rule of law," Mr. Tembeckjian said. "One who routinely violates that principle is unworthy of being a judge."

Mr. Greenberg declined comment.

Choosing a Successor

By deciding the case yesterday, the Court ensured that Surrogate Feinberg's successor will be chosen through a Sept. 13 primary. A ruling after July 7 would have permitted Brooklyn Democratic leaders to choose the successor.

Three candidates had their hats in the ring yesterday for the Democratic nomination to fill the vacancy: Brooklyn Supreme Court Justices Diana A. Johnson and Lawrence S. Knipel, and Civil Court Judge Margarita Lopez Torres.

Aides to all three judges confirmed that they will begin the process of gathering the 4,000 petition signatures needed to qualify for the primary. The trio face a truncated petitioning period because primary candidates for other offices were legally permitted to begin circulating petitions on June 7.

Meanwhile, Brooklyn voters for the first time this November will choose two surrogates. Last week, the state Legislature created a second surrogate's position in the borough as a part of a package of 21 new judgeships enacted in the closing hours of its session (NYLJ, June 28).

The new law, if signed as expected by Governor George E. Pataki, will become effective Aug. 1, which is too late in the political calendar for a primary. Instead, the leadership of the Brooklyn Democratic Party will select the candidate.

The party is expected to select Brooklyn Assemblyman Joseph R. Lentol, who heads the Assembly's Codes Committee, according to sources.

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