Manhattan Surrogate's Courthouse, across from Tweed.
Last week, Brooklyn Surrogate's Court Judge Michael Feinberg was removed
from the bench
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
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
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
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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
Between 1997 and 2001, according to Newfield, the law firm of Queens
Democratic Party leader Tom Manton received more than $400,000 in court
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
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
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 â€“
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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