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Surrogate's Court And Why It Should Go


Manhattan Surrogate's Courthouse, across from Tweed.

Last week, Brooklyn Surrogate's Court Judge Michael Feinberg 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.


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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 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  

 

City Council Stated Meeting - June 30, 2005


Every two weeks the New York City Council meets for its Stated Meeting to introduce and pass legislation. As a regular feature, Gotham Gazette covers these meetings and posts a summary of the bills passed.

QUOTES OF THE DAY:
"There is so much pork you can almost hear it oink." - Bronx Councilmember Madeline Provenzano on the new $50 billion city budget.

"One person's pork is another person’s meal that saves them from hunger." - Bronx Councilmember Oliver Koppell in response.

MEETING SUMMARY:
The New York City Council unanimously approved a $50.2 billion budget, the largest in city history.

Mayor Michael Bloomberg and the City Council, who face reelection this fall, chose to use a $3.5 billion surplus to cut taxes and increase funding for education, cultural institutions, and social service programs. It is clearly meant to make many New Yorkers happy.

The fiscal plan includes a $400 rebate to those who own a home, co-op, or condo. It cuts the sales tax on clothing and shoes under $110 from 8 to 4 percent.

It includes additional money to cover a 10 percent increase in police salaries ordered by a state panel.

And the budget - which was approved on the last day possible and applies to the fiscal year beginning July 1 - includes dozens of new initiatives, like:

  • Funding to reduce class size for kindergarten through third grade
  • New after-school programs
  • Hiring 327 new school safety officers
  • $27 million more for senior services
  • $21 million more for summer youth jobs
  • 1,500 new day care slots
  • More frequent Staten Island ferry service
  • A $20 million program to help unemployed New Yorkers
  • Funding for six-day library service
  • Hiring 500 seasonal workers for parks
  • Money for additional trash pick-ups
  • $3 million to expand HIV testing
  • $12 million in tax credits for film production companies
  • Scholarships for City University students
  • And a program to recruit minorities to the fire department.
  •  

    "I'm crying tears of joy," said Bronx Councilmember Larry Seabrook.

    The budget agreement was the last for City Council Speaker Gifford Miller, who is forced out of office at the end of the year because of term limits. Miller reminded the members of the budget four years ago, when the city faced a $6 billion deficit.

    "I want to thank my colleagues who understand that unity is how this council has been able to make changes in the lives of people in this city," said Miller.

    However, not all of the members agreed that there was "unity" in the room.

    Several of the 19 members who voted against the speaker on the recent the waste management plan complained that their pet projects had been cut.

    "It is absolutely disgraceful that members who vote their conscience... get punished in the budget," said Queens Councilmember Tony Avella.

    "We've been called trash traitors," said Bronx Councilmember Maria Baez.

    And in a council where 48 of the 51 members are Democrats and open debate is rare, members took personal swipes at one another.

    "Every year there is bound to be a few cry babies," responded Queens Councilmember John Liu, who offered lollipops to those who were unhappy.

    Some council members also complained that the mayor and the council should have used more of the surplus to pay off debt or to deal with future deficits, which experts say will be $4.5 billion by next year and $4.2 billion the year after that.

    "There is so much pork you can almost hear it oink," said Bronx Councilmember Madeline Provenzano.

    But others said the city's economic future is difficult to predict and that when the government has the money, it should spend it on those who need it most.

    "One person's pork is another person’s meal that saves them from hunger," said Bronx Councilmember Oliver Koppell.

    Teachers, firefighters, and other city workers who have been without a contract for several years were also left out of the budget. The mayor has refused to negotiate new contracts without concessions.

    Despite the open disagreements, the budget passed by a vote of 50 to 0, with the exception of a measure that fixes the tax rates for this fiscal year; the three Republican members – James Oddo, Dennis Gallagher, and Andrew Lanza – voted "no" on that measure. (Councilmember Charles Barron was absent.)

    The Republicans, who said spending should have been cut, warned that by next January, the mayor and the council will face some difficult decisions.

    "There are tax increases looming," warned Councilmember James Oddo.

    PILOT FINACING PROGRAM
    As part of the budget, the council also passed a measure (Intro 665-A) that will prevent the financing of development projects with revenue called "payment in lieu of taxes" or PILOTs without the approval of the City Council.

    Mayor Bloomberg had proposed this kind of financing to pay for the city’s $300 million share of the West Side stadium.

    PILOTs are money from developers who build properties on city-owned land, but do not pay property taxes on it. Instead, they pay money into a specific fund. Last year, over 260 PILOT programs across the city generated about $47 million in annual revenue. None of the PILOT money goes through the city’s usual budget, which must be approved by the City Council.

    In May, the council passed a bill that would send all such payments to the legislature, and Mayor Bloomberg vetoed it. After the defeat of the West Side stadium, the two sides reached an agreement.

    The bill requires that all new and past projects that use PILOT financing be approved by both the mayor and the council.

    "From now on, all public money must go through a public process," said Speaker Miller. "There won't be slush funds that this mayor and previous mayors have used to divert money without public review."

    HANDICAP ACCESS TO WATER FERRIES
    In addition to the budget, the council also passed several new bills. One addressed the issue of handicap accessible water ferries.

    The majority of the city's commuter water ferries comply with the Americans with Disabilities Act and are wheelchair-accessible. However, many of the city-owned docks do not have accessible ramps, which make it impossible for New Yorkers with handicaps to use the boats.

    To address the issue, the council passed a bill (Intro 398) which requires ramps and door ways for wheelchairs and mandates adequate space, restrooms, and personnel trained to evacuate people with disabilities on all water ferries.

    The legislation is a result of activists like Frieda Zames, who sued the MTA over 20 years ago to make buses wheel-chair accessible. Zames, who was in her 70s, died shortly before the council passed the legislation out of committee.

    "She did not live to see the result of her work," said Councilmember Margarita Lopez, who authored the bill. "But we will continue the fight."

    HYBRID TAXIS
    In an effort to move the city's taxi fleet toward the use of alternative fuel, the council approved a measure ( Intro 664) that would allow taxi owners to purchase hybrid cars - which run on a combination of gas and electricity - beginning later this summer. The taxi commission will now decide which brands of hybrid cars will be allowed.

    PROTECTION FOR JAMAICA BAY
    In 1972, the United States Congress established the Gateway National Recreation Area in Queens to protect the harbor and its wildlife. However, some scientist predict that the Jamaica Bay marshlands in the recreation area, which are still polluted by sewer and storm runoff, will vanish if they are not more actively preserved.

    The council passed a bill (Intro 565-A) to require the New York City Department of Environmental Protection to create a watershed protection plan for Jamaica Bay by September 2006. The goal of the plan is to restore and maintain the water quality. The agency will be required to submit regular reports on its efforts to the mayor and the council.

    FINES FOR FIREWORKS
    To mark the July 4th holiday, the council approved steep new fines (Intro 431) for New Yorkers who possess or set off illegal fireworks in the city. Violators can be fined up to $750.

    SUMMER RECESS
    The meeting was the last before the City Council takes its summer recess. There are generally no committee hearings during the months of July and August, though the council does meet once a month to pass urgent land-use measures.

    The next Stated Meeting is scheduled for July 27. The council resumes its regular schedule of hearings and meetings in September.

     

     

     



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