Brooklyn Surrogate's Court 2005

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Thursday, June 30, 2005

Judge Ousted. Voters Excluded.


New York Civic (
By Henry J. Stern
June 30, 2005

Two major events have occurred in the last week relating to one of the city's most disturbing centers of official and unofficial misconduct -- the Brooklyn judiciary.

On Friday, June 24, in the waning hours of the session, the Governor and Legislature rushed through a bill creating a second surrogate for Brooklyn. They timed the effective date of the law to guarantee that the new judge will be chosen by the Brooklyn Democratic machine. Assemblyman Joseph Lentol is presumed to be the designee, which will create a vacant assembly seat. Nature abhors a vacuum.

On Monday, June 27 the Court of Appeals unanimously affirmed the decision of the State Commission on Judicial Conduct to remove Judge Michael Feinberg from the position of Kings County Surrogate (the judge who oversees estates of the dead). The Court of Appeals decided the case twenty days after the oral argument, and may have acted promptly in order to allow an open primary to select a successor to Judge Feinberg.



It is not yet widely known, but the New York State Legislature, as it rushed to adjourn, passed a bill drafted in concert with Governor Pataki, creating twenty-one additional judgeships in New York State, including a second Surrogate for Kings County. Of the 62 counties in the State of New York, only one (New York County) has two surrogates. All the others have one surrogate. Unless there has been a sudden increase in morbidity in Brooklyn, we see no justification for a new surrogate, except greed.

The new and superfluous position of second Surrogate, will pay $136,700 for the judge (likely to rise next year), with clerks, support staff, etc., It will cost taxpayers between $500,000 and a million dollars. Sweeter still, there will be an additional source of patronage for Brooklyn politicians and their favorites. This will provide more opportunities for jobholders to express their gratitude to those who have been helpful to them.

However, as if the waste of tax funds were not sufficiently egregious, the new law was precisely drafted to take effect August 1, 2005, which will preclude a primary election to fill the position..

Al Baker, in an article on the legislature in the June 25 Times, wrote: "Indeed, with little discussion or chance for debate, a last-minute bill was passed to create several new judgeships, including adding a second surrogate's court in Brooklyn. Critics said that the timing of the measure meant that the political parties and their leaders, including Assemblyman Clarence Norman Jr., the Brooklyn Democratic leader, would have great sway in picking the nominees."

August 1 may be a busy day for Mr. Norman, because the Post reports today, in a short piece by Zach Haberman on p21, DEM BOSS READY FOR DAY IN COURT, that jury selection is supposed to begin that day in his trial for failing to report campaign expenses paid for by a political-action committee. But even people who believe that Norman is dishonest believe that District Attorney Charles J. Hynes' case against him is weak, and he may gain strength from an acquittal, or the dismissal of the charges against him by a grateful judge, who may even be right on the merits.

The August 1 effective date prevents lawyers who would like to run for surrogate in the September 13 primary from circulating petitions. Under the 2005 political calendar, petitions are due July 7, and on that day there will be no vacancy other than the one caused by the removal of Judge Friedman. The machine will most likely have its own candidate for that position as well. The winner will serve a 14-year term, unless he turns 70 sooner.

The Albany Times Union's James M. Odato wrote last Saturday that "Pataki will be able to fill 14 new Court of Claims posts, likely rewarding loyalists in his administration and other GOP benefactors... Four new state Supreme Court posts for the greater New York City region, three new family court posts in Orange County, and a new surrogate's court job in Kings County. Brooklyn Democrat Joseph Lentol, a veteran assemblyman, already said he'll run."

Lentol was first elected in 1972 to represent Flatbush, East Flatbush, and Canarsie, in central Brooklyn, and has represented Williamsburg, in north Brooklyn, since 1983. His father, Edward, was an assemblyman and later a state senator. His grandfather, Joseph, a barber, was an assemblyman from 1919 to 1920. In those days, legislators had other occupations which were not related to politics or public relations.

Today's Joe Lentol, now in his 33rd year, is a friendly, well-liked legislator, regarded as a faithful ally of Speaker Silver, who made him chair of the Codes Committee because he knew he could count on him. Since he was born in 1943, he will only be able to serve through 2013, which will mean an eight-year term. He will no longer be required to travel to Albany to shiver in the cold or swelter in the heat.. Driving to the Capitol is time-consuming and burdensome for many legislators, although it is a source of income for a few.



The second story was the unanimous affirmation by the Court of Appeals, the state's highest court, of the removal of Kings County Surrogate Michael Feinberg for awarding a close personal friend since their Brooklyn Law School days, Louis Rosenthal, nearly $9 million in fees as counsel for the public administrator, at the rate of 8% of the estate, not the customary 6%.
These awards were made without the supporting affidavits which are required to be submitted by the attorney to show how much work he did on the matter.

The Court of Appeals cited a Daily News exposé in its opinion, which led the News to headline its story on the decision, NEWS HELPS GET DIRTY B'KLYN JUDGE AXED. The article, written by Nancie L. Katz, appeared at the bottom of page 14, which is not the most visible spot in the paper. But The News was the best of the five dailies in its coverage.

The Daily News had denounced Judge Feinberg in a June 8 editorial, with the colloquial but apt headline: BENCH THIS JUDGE PRONTO. Last year, the News ran a series on corrupt judges in Brooklyn. One went to jail, but kept his pension. Three others are embroiled with the law in one way or another outside of the fact that they hear cases.

Newsday covered the story on p18, in an article by Anthony M. DeStefano, HIGH COURT OUSTS B'KLYN JURIST OVER STATUTORY FEES. "One Brooklyn attorney ...said he believed the Court of Appeals acted quickly on the Feinberg matter -- just 20 days after oral arguments -- to make sure that primary election petitions can be filed in time. Otherwise, embattled Brooklyn Democratic party boss Clarence Norman would be able to pick the nominee..."

The Post gave the matter three long sentences at the bottom of p11, headlined B'KLYN JUDGE AXED IN $CHEME. Kenneth Lovett quoted the Court of Appeals: "The record reflects not mere lapses or errors in judgment but a wholesale failure of [Feinberg's] duty, reflecting an indifference if not cynicism toward his judicial office."

The Sun ran an Associated Press dispatch, COURT UPHOLDS BROOKLYN JUDGE'S REMOVAL FROM BENCH, under Albany in its New York Desk column on p4. "From January 1997 to May 2002, Mr. Rosenthal received more than $2 million in excessive fees despite never filing any affidavit of legal services that would have supported the fee requests, the Commission [on Judicial Conduct] said."

The Times ran the story as the fifth Metro Brief on pB6. The one-paragraph story, under Michael Cooper's byline, is headed: ALBANY: APPEALS COURT UPHOLDS JUDGE'S REMOVAL. Cooper quoted a powerful line in the court's opinion that Judge Feinberg had "debased his office and eroded public confidence" in the judiciary.

For the full story, read the opinion of the Court of Appeals.

One aspect of this case is that Judge Feinberg was not accused of taking money personally. He may or may not have received some financial reward from Rosenthal, the beneficiary of his largesse at the expense of the estates of people who had the misfortune to die in Brooklyn without leaving a will.

Judge Feinberg had been on the bench since 1982, and was elected Surrogate Judge in 1996. At the time, Rosenthal was regarded as a potential candidate for Surrogate. In the end, he actively supported Feinberg's nomination by the Democratic Party. Feinberg's chief backer was County Leader Clarence Norman, and Feinberg's victory in a sharply contested primary solidified Norman's hold on the Brooklyn Democracy (as the party organization was quaintly described years ago).

Before he was enrobed, Feinberg was a Democratic district leader in central Brooklyn. His predecessor as Surrogate, Bernard Bloom, had been district leader of the same club. Dynastic issues arise occasionally in the succession to political jobs and offices in Brooklyn.

The Democratic nomination is tantamount to election in Brooklyn, just as sixty years ago it was tantamount to election in Mississippi. That is no longer the case in Mississippi, where state offices are now largely held by Republicans. After Feinberg took office in Brooklyn, he appointed his buddy Rosenthal as Counsel to the Public Administrator, a position whose fees far exceed a judge's salary, although not necessarily his entire income.

The removal of a sitting judge is a milestone in the pursuit of judicial corruption. It is widely known that the Brooklyn judiciary, largely chosen with the concurrence of Clarence Norman, does not consist of pillars of rectitude.

Some are reported to have paid large sums to assure their nomination, ostensibly for the expenses of their campaign. They may well seek opportunities to recoup their investment in the robe. The situation clearly requires further investigation. It was the United States Attorney for the Eastern District whose office caught Councilman Angel Rodriguez as a bribe taker. He was convicted of a felony, removed from office and sent to federal prison. Our first articles, written on March 30 and April 5, 2002 were written about this case. See how the columns have evolved since then.

Rodriguez, BTW, was Clarence Norman's candidate for City Council Speaker against Gifford Miller, the Bronx-Queens leaders' candidate. Fortunately, Miller won, and the city was spared the spectacle of its Council Speaker being arrested and convicted of bribery.

The Augean stables of Brooklyn have not yet been cleaned. Will it require a Hercules to perform the labors necessary to secure equal justice and fair treatment for litigants, free and open primaries, judges chosen on merit and competence rather than clubhouse connections? Manhattan has benefited from the reform activities of the last thirty years. In Brooklyn, although reform judges have been elected, e.g., the late Ted Diamond and the late Bernard Fuchs, the battered and disreputable county organization is still a major, often controlling influence in the selection of judges.

The struggle for honest government has gone on for hundreds of years, and will continue longer than we will be here. There have been victories and defeats, and there will be many more.
This is not a conflict between the left and the right, or capitalism against socialism. It is the effort to secure integrity and transparency in public affairs, and to promote the public welfare as opposed to the personal benefit of office holders, their relatives and their bosom buddies.

Entrenched power, however, is strong and highly organized, that is how it became entrenched. There is a disciplined cadre of those who live off the system and await preferment from those whose orders they follow, cheerfully or grudgingly. Reform movements wax and wane, because when reformers get power and jobs, they often morph into regulars, although they retain a greater degree of righteousness and indignation at the sins of others. When the sinners overreach, the public will replace them. No matter what schemes are employed to perpetuate political power (gerrymandering, the complex election law, arbitrary disqualification), we maintain a possibly primitive faith in the voters' desire to do the right thing, if they only knew.


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