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.