J.A.I.L. News Journal
______________________________________________________
Los Angeles,
California
July 5, 2022
______________________________________________________
"Legal
error and misconduct are
'not
necessarily mutually exclusive.'"
JAIL is needed
for the countless judges who routinely get by with
it.
JAIL is needed
even if judges did meet their
responsibilities.
JAIL is needed as
the People's safeguard to prevent
tyranny.
JAIL IS NEEDED--
PERIOD!
Judge Loses Seat After
Showing
"Shocking Disregard"
for
Law
New York state's high court finds
actions
constituted
removable
misconduct
In a harshly worded opinion, New York's
Court of Appeals Wednesday
ended Brooklyn Surrogate Michael H.
Feinberg's judicial career. It held
that his awarding of millions of dollars
in attorney 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, Feinberg "demonstrate[d] a
shocking disregard for the very law that
imbued him with judicial authority." It rejected with apparent disdain 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."
Wednesday's ruling was a major victory
for the New York 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 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.
Wednesday, 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 Feinberg's awarding of
millions of dollars in commissions to Rosenthal, a law school friend and
political contributor whom the judge
had appointed counsel to the public
administrator.
The commission found that 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 Feinberg
and Rosenthal. That extra
2 percent garnered Rosenthal about $2
million in excessive fees,
according to the commission's
calculations.
Typically, 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, Feinberg awarded the
excess fee,
insinuating that he directed a windfall
profit to a chum while ignoring his
judicial oversight
responsibilities.
SURROGATE LAWS
SKIRTED
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, Feinberg
pointed out that his manner of awarding
fees was consistent with
longtime Brooklyn
practice.
Court records show that the firm that
preceded 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,
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 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 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 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, 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 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 Rosenthal for $729,800, an amount
the office has described as a
"subset" of the
overpayment.
The state Surrogate's Association
supported Feinberg as amicus curiae.
It insisted the commission has no
business second-guessing the
discretionary actions of a judge. But in
Wednesday'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, N.Y., argued for
Feinberg.
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," Tembeckjian said. "One who
routinely violates that principle is
unworthy of being a judge."
Greenberg declined
comment.
CHOOSING A
SUCCESSOR
By deciding the case Wednesday, the court
ensured that 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 Wednesday 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 faces 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 New York
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.
The new law, if signed as expected by
Gov. 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.
Daniel Wise contributed to this
report.
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