2005 Article Published in Gotham Gazette Says Surrogate 's Court Must Go

Manhattan Surrogate's Court, 31 Chambers Street

So, what's happening today? The Court is more corrupt than ever, and the stories are being posted. I have spent 11 years being pesecuted by Manhattan Surrogate Court Judge Renee Roth, and now Judge Troy Webber, and their crew: Mary Santamarina and Barbara Levitan, Surrogate's Court Law Department Attorneys, and Dorothy Henderson, former Law Clerk to Judge Roth and now the law clerk to New York State Supreme Court Judge HON. NICHOLAS FIGUEROA:
Chambers: 60 Centre Street, Room 655
New York, New York 10007
Phone: (646) 386-3187
Law Secretary: Dorothy Henderson, Esq.

My story of woe will be told in a few days.

The public should know that the Surrogate's Court has long been places of intrigue and back-door scams. If you live in New York City, please contact your nearest estate planner immediately, even if you are young and healthy, because to die in this State and have your property get into the hands of the lawyers, clerks and judges of the Surrogate's Court is a crime waiting to happen.

Feinberg Disbarred, Rosenthal Suspended
N.Y. LAW JOURNAL, By Daniel Wise, December 05, 2008
LINK

Former Brooklyn Surrogate Michael H. Feinberg, who was removed from the bench three years ago, was disbarred yesterday by the Appellate Division, Third Department.

In two disciplinary proceedings factually linked to Mr. Feinberg's, the Third Department also suspended Louis R. Rosenthal, the former counsel to the Brooklyn public administrator, for two years, and censured Stephen H. Chepiga, the chief clerk of the Surrogate's Court in Brooklyn since 1998.

Mr. Feinberg was disbarred upon the strength of the Court of Appeals decision in 2005 removing him from the bench for awarding Mr. Rosenthal $8.6 million in fees without requiring affidavits detailing the services he provided as required by law (Matter of Feinberg, D-69-08).

The Third Department found that Mr. Rosenthal had charged and collected "excessive fees" without following proper procedures (Matter of Rosenthal, D-68-08). In recommending Mr. Feinberg's removal, the state Commission on Judicial Conduct had found that Mr. Rosenthal consistently billed 2 percent more for his work than permitted, resulting in more than $2 million in excessive fees (Matter of Chepiga, D-70-08).

The Third Department decision appear on page 7 of the print edition of today's Law Journal.

Fabian G. Palomino, who represented both Mr. Feinberg and Mr. Rosenthal, did not return a request for comment. Mr. Rosenthal also did not return a request for comment, and Mr. Feinberg could not be located.

Mr. Chepiga's lawyer, Peter V. Coffey of Englert, Coffey, McHugh & Fantuzzi in Schenectady, said, "If you talk to anyone in the court system they will tell you that Mr. Chepiga is diligent, hardworking and a man of great integrity and truthfulness.

"He has unhesitatingly been retained in his position" as chief clerk, Mr. Coffey added.

All three decisions were issued per curiam by the same panel: Justices Thomas E. Mercure, Edward O. Spain, Robert S. Rose, Anthony T. Kane and Leslie E. Stein.

"The taint of favoritism is strong" in the relationship between Mr. Feinberg and Mr. Rosenthal, the Court of Appeals found in its removal opinion, Matter of Feinberg, 5 NY3d 206. The Court described Mr. Rosenthal as "a close personal friend and political supporter" of Mr. Feinberg whom the former surrogate appointed as counsel to the public administrator without considering any other candidates.

The counsel to the public administrator is responsible for handling Surrogate Court proceedings relating to people who died without wills and do not have close relatives to handle their affairs.

In disbarring Mr. Feinberg, who was Brooklyn's surrogate for eight years, the panel noted that an attorney may be charged with professional misconduct for the same acts for which he was disciplined as a judge.

Disbarment is necessary, the panel concluded, "to protect the public and preserve the reputation of the bar."

The principal Court of Appeals finding relied on by the Third Department that Mr. Feinberg had failed to familiarize himself with a 1993 amendment to the Surrogate Court's Procedure Act (SCPA), which requires the counsel to the public administrator to support his fee requests with affidavits detailing the services rendered, the time spent, and the method or basis upon which the compensation is computed.

Over five years and 475 proceedings, both the Court of Appeals and the Third Department had found that Mr. Feinberg had remained unaware of the 1993 amendment to SPCA §1108. That amendment had been enacted, the Third Department panel noted, after an investigation by the attorney general and comptroller had found abuses in the award of fees to public administrators' counsel.

The Court of Appeals had described Mr. Feinberg's "consistent disregard for fundamental statutory requirements of office" as demonstrating "an unacceptable incompetence in the law."

Counsel Suspended

With regard to Mr. Rosenthal, the Third Department found that he had collected "excessive fees" for his work by "regularly" requesting fees that reflected the same percentage amount of the total value of the estate he was handling.

In the conduct commissions ruling recommending Mr. Feinberg's removal, it had found that Mr. Rosenthal routinely requested fees pegged at 8 percent of the value of an estate.

The commission noted that surrogates in the city's other boroughs generally pegged compensation for counsel to the public administrator at 6 percent of the value of an estate.

In addition, the commission relied on agreement between the attorney general and Mr. Feinberg's predecessor, Surrogate Bernard Bloom, to limit compensation to 6 percent. The agreement was initially worked out in 1988 and renewed in 1994 (NYLJ, Feb. 15, 2005).

The Third Department also found that rather than submitting the required affidavits of service, Mr. Rosenthal had submitted his fee requests on Post-It notes affixed to formal decrees.

The practice did not change, the panel noted, until the Daily News in May 2002 published an exposé of Mr. Rosenthal's fees and the way they had been approved by the surrogate.

Even then, the panel wrote, Mr. Feinberg re-approved all of Mr. Rosenthal's fees after he retroactively submitted the required affidavits of service.

Clerk Censured

In censuring Mr. Chepiga, the Third Department found that, though he was aware of the agreement limiting fee awards in Brooklyn to 6 percent, he was "actively involved" in the process of approving awards set at 8 percent of estate value.

The panel described Mr. Chepiga's statement that he was unaware of the 1993 amendments requiring the filing of affidavits to support fee requests as being "somewhat disconcertin[g]."

But in deciding that a censure was the appropriate sanction, the panel cited his "unblemished disciplinary record" and letters attesting to his integrity submitted to the court by Kings County surrogates. Mr. Chepiga's lawyer, Mr. Coffey, identified the authors of the two letters as Surrogate Margarita López Torres and Justice Albert Tomei, a former interim surrogate who was appointed to fill in after Mr. Feinberg was removed.

Though jurisdiction over disciplinary matters normally lies in the department where an attorney has his principal business office, the Second Department issued an order transferring the three cases to the Third Department, said the court's clerk, Michael Novak.

Surrogate's Court And Why It Should Go
by Gary Tilzer, Gotham Gazette, 04 Jul 2005
LINK



Last week, Brooklyn Surrogate's Court Judge Michael Feinberg (pictured at right) was removed from the bench because he committed misconduct by improperly awarding nearly $9 million in fees to attorney Louis R. Rosenthal, his long-time friend. The fees in question were taken from the estates of Brooklyn's dead, their widows and orphans.

In a unanimous decision, the state's highest court upheld Feinberg's ouster by the Commission on Judicial Conduct and ruled that his actions "debased his office and eroded public confidence in the integrity of the judiciary."

Feinberg never denied he gave the money to his friend -- in fact he freely admits he did -- but said the payments were justified and in keeping with long-time practice in Brooklyn Surrogate's Court.

Surrogate Feinberg was among a small group of judges, lawyers and politicians who make their living from a court that for over 100 years has been at the center of judicial, legal and political corruption in New York City. Yet it has survived many attempts to eliminate it.

If anything, today's politicians are more shameless than ever. On June 24, the entire New York State government acted to ensure that the Brooklyn Surrogate's Court will continue to benefit politicians and politically connected lawyers. In the middle of the night, both houses of the legislature passed a bill to create 21 new judgeships throughout the state -- including a second Surrogate's Court judge in Brooklyn. The bill was submitted by Governor George Pataki and passed later the same day -- without any hearings or public discussion. Since the law will take effect August 1, after the filing date for the September primary, Brooklyn's political leaders -- the very same people who selected Feinberg -- will get to choose another judge.

This latest episode and the disclosure of Feinberg's abuses should serve as an impetus finally to eliminate the court that Senator Robert Kennedy called "a political toll booth exacting tribute from widows and orphans." Once informally known as "the widows and orphans court," the Surrogate's Court handles estates from people who die without a proper will. In doing this, it funnels millions of dollars a year to lawyers who serve as guardians.

The prospect of appointing lucrative guardianships has motivated generation after generation of machine politicians and establishment lawyers to capture a Surrogate spot for one of their trusted judges, who then spreads the largesse among the party faithful. Often the fees they charge eat up substantial assets. For example, reclusive tobacco heiress Doris Duke, who died in 1993, wanted her estate of $1.2 billion to go toward the improvement of humanity. But a dispute over the estate in Manhattan Surrogate's Court became what one lawyer called the "world series of litigation," with big name law firms vying for a piece of the pie.

Play Gotham Gazette's Judges Game!!

The political establishment and media seem to have lost past generations' moral outrage at the corruption there. Even the well-informed tend to see Surrogate Feinberg's misconduct and other similar incidents as isolated problems. This year three candidates are vying for a rare open seat on Manhattan Surrogate's Court, but the campaign has not featured any debate over the way the court works.

A CULTURE OF PATRONAGE AND SYSTEMIC CORRUPTION

Earlier this year, political consultant Norman Adler told the New York Observer that politicians cherish the court for "the same reason Willie Sutton robbed banks: That's where the money is."

And the well-connected ones get it. "The courts are so political that almost nothing is decided purely on the merits," wrote the late journalist Jack Newfield in 2001, one of the few consistently outraged critics of the court.

The examples establish a clear pattern.

The Commission on Judicial Conduct found that the attorney-friend appointed by Surrogate Feinberg was so entrenched that he prepared the Surrogate's decisions on fees awarded to attorneys in the form of Post-it notes.

Between 1997 and 2001, according to Newfield, the law firm of Queens Democratic Party leader Tom Manton received more than $400,000 in court patronage.

In 1987 a government investigation accused the Public Administrator for Manhattan Surrogate Renee Roth of using the court as a racketeering enterprise. The administrator resigned after he was accused of stealing $1 million from three clients. And a 1998 bar association report found that about two-thirds of Roth's guardianship appointments went to campaign contributors or to lawyers who worked for firms that contributed.

Some of the abuses have been even more blatant. In 1987, Surrogate's Court investigators were captured on videotape stealing valuables from the apartments of the deceased; they had been hired to inventory the property.

The state regulates all aspects of Surrogate's Court -- except the public administrator that every Surrogate's Court judge appoints, who is under the city's purview. This dual control has provided a convenient way out for auditors. In 2002, the Daily News reported that, during his eight-year tenure, State Comptroller Carl McCall never audited the Brooklyn Surrogate's Court's Public Administrator. McCall's office insisted he never took a look because then-city Comptroller Alan Hevesi was already auditing the Brooklyn court. Hevesi did -- but never discovered that Judge Michael Feinberg was awarding excessive fees without proper documentation to his friend Louis Rosenthal.

The problems with Surrogate's Court go beyond individual instances of corruption; they are systemic.

UNNECESSARY AND INVULNERABLE

There is absolutely no reason to maintain a separate Surrogate's Court. Under the New York State Constitution, the State Supreme Court already shares jurisdiction on anything the Surrogate's Court might handle -- estates, appointments of guardians and conservators, and adoptions. And so, abolishing the Surrogate would not leave a sudden void in our judicial system.

In Supreme Court and Family Court, cases are randomly assigned to a stable of judges. But there is only one Surrogate each for Queens, Staten Island, and the Bronx. Manhattan has two, and now so will Brooklyn. Putting the management of millions of dollars in assets under the purview of just one or two judges creates a recipe for patronage and corruption. Abolishing the court, and dispersing its functions and cases among the many Supreme Court and Family Court judges in each county would go a long way toward breaking up the patronage mill. But because of the big money involved and the powerful people who benefit from the court, every attempt to abolish or reform it in the past has ended in failure.

EFFORTS TO ELIMINATE THE COURT

In the 1930s, Mayor Fiorello La Guardia called Surrogate's Court "the most expensive undertaking establishment in the world." He believed it was control of the Surrogate's Court of New York County, more than any other factor, that kept the Tammany Hall political machine alive through the lean years when he deprived it of city jobs and President Franklin Roosevelt denied it federal jobs.

In 1938, the New York Bar Association called for the merger of the Surrogate's Court and the Supreme Court to eliminate corruption. In 1948, the Americans for Democratic Action called for a legislative campaign to reduce the patronage in the Surrogate Court. In the 1950s a commission put together to end the abuses of Tammany Hall urged the elimination of the Surrogate's Court by merging its functions with the Supreme Court. These recommendations came to naught.

The movement to abolish the court reached its peak in the 1960s. Citizens Union urged the system of appointing special guardians be abolished and replaced by a staff of salaried public officials who could act for minors, widows and incompetents. Robert Kennedy endorsed this idea, saying the salaried public guardians "would eliminate patronage from the Surrogate's Courts and dry up a major source of sustenance for the worst elements in our political parties." But, almost as soon as Kennedy made the proposal, representatives of the bar association and many of the city's Surrogate judges attacked it. And the senior Manhattan surrogate at the time, Samuel DiFalco, who had been elected with the help of the Manhattan Democratic machine, blocked reforms.

Ironically, calls for the elimination of the Surrogate's Court disappeared as reformers assumed power in the city. In 1977, Edward Koch ran for mayor, attacking the Democratic machine. Soon after his election, though, Koch did what most reform politicians do after defeating a machine: make a deal with it. Though Koch set up panels to screen candidates for judgeships, presumably based on merit, as time went on, the erstwhile reformers became more and more dependent on contributions and support from the machine politicians and the law firms that benefit from Surrogate patronage. Since then, Koch himself – along with other prominent politicians, including former Governor Mario Cuomo -- has been the beneficiary of the Surrogate's Court. Koch, for example, received $77,000 for a guardianship in 2001 and 2002, according to the New York Observer. "I'm on the list of people who are qualified," Koch told the Observer. "They're very careful to prevent [the court] from being used as a trough."

Today, every candidate who runs for Surrogate pledges to make "reforms" and end the court's patronage. Once elected, they do nothing. This is so widespread that it hardly even counts as irony that a New York Times editorial in 1996 endorsed the now-fired Surrogate Feinberg with the words: "Justice Feinberg has promised reforms ranging from a panel to screen appointments and recommend changes in how the place is run, down to keeping the office open at lunchtime as a convenience to the public."

THE BROOKLYN COURT

With Feinberg's removal, people interested in running for his seat will have two weeks to try to collect the 4,000 signatures to get on the ballot. If two or more candidates qualify as Democratic candidates, there would be a primary contest for Feinberg's seat.

But this would not be the case for the second Surrogate's post the state government created last month. Even veteran political observers were astounded by the addition of a second Surrogate's Court in Brooklyn in the middle of the removal process for the current Surrogate -- without giving citizens the right to vote in a primary.

That's right, there will be no primary for the new position. Albany in effect gave Brooklyn Democratic leader Clarence Norman a big role in picking who will select the new Surrogate for that borough. Norman awaits trial for extorting money from past judicial candidates and supported Feinberg for Surrogate's Court in 1998. And whomever Norman and his cronies choose is virtually guaranteed to win the November general election, and serve 14 years before they have to run again.

The only chance of derailing this seems to lie in Washington. Because Brooklyn comes under the federal voting rights act, the plan for a second Surrogate's judge might need Justice Department approval.

Ten years before Feinberg's removal, the same State Commission on Judicial Conduct that removed him censured his predecessor, Bernard Bloom. Bloom's censure was one step short of removal. Then the political machine that picked Bloom selected Feinberg. Now that very same machine that chose the two discredited judges is likely to select at least one—and perhaps two - more Surrogates.

In setting the stage for this, Albany once again has provided evidence that, in a legislature where almost every incumbent gets re-elected, there are no consequences for taking the low road. The government's action also sends the message that politics still trumps justice in New York.

Gary Tilzer is a political consultant whose articles have appeared in the New York Sun, the Village Voice and other local publications.

Editor's Note 8/9/05: Gary Tilzer began work June 30th, 2005 on the campaign of Margarita Lopez Torres, a candidate to replace Feinberg as Brooklyn Surrogate's Court Judge

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POL BIGS BACK FEINBERG FOR COURT POST
By TARA GEORGE, Wednesday, August 21th 1996
LINK

Powerful Jewish leaders yesterday threw their political weight behind Supreme Court Justice Michael Feinberg's bid for the coveted Brooklyn Surrogate Court judge position.

In a press conference on the steps of City Hall, Assembly Speaker Sheldon Silver, Brooklyn Borough President Howard Golden, Assemblyman Dov Hikind (D-Borough Park) and Councilman Ken Fisher (D,L-Brooklyn Heights) endorsed Feinberg as the perfect "mensch" for the job.

Feinberg, a Supreme Court judge for nearly six years and a former Civil Court supervising judge, is the favorite of four candidates competing for the Democratic Party nomination in the Sept. 10 primary. He has the support of the Brooklyn Democratic chairman, Assemblyman Clarence Norman (D,L-Crown Heights.)

A dissident faction of the party, headed by Brooklyn Assemblyman Anthony Genovesi (D-Canarsie), is backing Civil Court Judge Lila Gold. She also has the support of former Mayor Ed Koch and former Deputy Mayor Herman Badillo.

The other two candidates in the closely watched race are Civil Court Judge Ferne Goldstein and City Councilman Howard Lasher (D-L Coney Island).

The Surrogate Court judgeship is a powerful $113,000-a-year post with a 14-year term. Judges process adoptions and wills, and appoint guardians and trustees.

Feinberg and Gold have been bending over backwards to court the Jewish vote. Both candidates ran advertisements in the Jewish Press this month citing their Jewish credentials.

Hikind yesterday criticized Gold's supporters for seeking to discredit Feinberg by playing the race card.

Hikind accused Gold's operatives of saying "behind the scenes" that Norman Feinberg's chief sponsor, who is black is unpopular with many Jews in Crown Heights following the race riots in the neighborhood five years ago.

A Gold spokeswoman denied the candidate or her backers had done so.

NYC Comptroller William Thompson Audits The Brooklyn Public Adminitrator