* * "Legal Error and Misconduct are Not Necessarily Mutually Exclusive" * *
- J.A.I.L. News Journal
Los Angeles, California July 5, 2005
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______________________________________________________"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 LawNew York state's high court finds actionsconstituted removable misconduct
New York Law Journal
07-01-2005In a harshly worded opinion, New York's Court of Appeals Wednesdayended Brooklyn Surrogate Michael H. Feinberg's judicial career. It heldthat his awarding of millions of dollars in attorney fees to a friend without demanding the affidavits required by law constituted removablemisconduct.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 officerepeatedly over the course of more than five years and 475 proceedings, educating himself on the SCPA requirements only in response to anewspaper's investigatory series," the court said. "Petitioner's consistent disregard for fundamental statutory requirements of office demonstratesan unacceptable incompetence in the law."Wednesday's ruling was a major victory for the New York Commissionon Judicial Conduct, which has increasingly invoked its power to punishjudges 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 inpursuing a judge for legal errors. Wednesday, the court said it did not,with a key finding that legal error and misconduct are "not necessarilymutually exclusive." The decision seemingly gives the commissionlicense to continue its pursuit of judges whose incompetence or legalneglect 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 Newsreported on Feinberg's awarding of millions of dollars in commissions to Rosenthal, a law school friend and political contributor whom the judgehad appointed counsel to the public administrator.The commission found that Feinberg appointed a marginally qualifiedfriend to a lucrative post, signing off on about $8.5 million incommissions without ever requesting the mandatory affidavit of legalservices and virtually always awarding 8 percent of the estate. That is2 percent more than the norm in New York City's other four boroughsand 2 percent more than the amount agreed to by the state attorneygeneral and the predecessors of Feinberg and Rosenthal. That extra2 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 hisjudicial oversight responsibilities.
SURROGATE LAWS SKIRTED
Feinberg admitted he had failed to require affidavits as mandated underthe Surrogate's Court Procedure Act and, once his neglect wasdiscovered, apologized profusely.The surrogate claimed he was oblivious of the provision and noted thathe ordered affidavits, prospectively and retroactively, as soon as theDaily News probe made him aware of the law. Additionally, Feinbergpointed out that his manner of awarding fees was consistent withlongtime Brooklyn practice.Court records show that the firm that preceded Rosenthal as counsel tothe public administrator, Hesterberg & Keller of Brooklyn, alsorequested the excess fee via Post-It notes and also had that requestroutinely honored by then-Surrogate Bernard M. Bloom. However,Bloom required affidavits of legal service, abiding by the Surrogate'sAct and making the transactions with Hesterberg & Keller moretransparent.At the Court of Appeals, the case distilled to whether Feinbergcommitted misconduct and, if so, the gravity of the offense. The courtfound grave misconduct, rejecting every defense advanced by thesurrogate.It criticized Feinberg for neglecting to read the law, for funnelinglucrative 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 onJudicial Conduct had grossly inflated the total of the allegedoverpayments, observing in a footnote that the commission'scalculation 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 andpolitical supporter," the court said. "While appointment of a friend doesnot itself convey an appearance of impropriety, when, as here, thatappointment is coupled with the unsubstantiated award of several milliondollars 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 judgmentbut 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 hisoffice, in a manner that conveyed the appearance of impropriety andfavoritism, debased his office and eroded public confidence in theintegrity of the judiciary."Attorney General Eliot Spitzer's office has offered to settle any disputewith 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 thediscretionary actions of a judge. But in Wednesday's opinion, the courtsaid a judge does not have discretion to ignore the law.Commission Administrator and Counsel Robert H. Tembeckjianprosecuted the case. Henry M. Greenberg of Greenberg Traurig inAlbany, N.Y., argued for Feinberg.Tembeckjian said that while "it is never pleasant or easy to remove ajudge," 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 thejudiciary is essential to the rule of law," Tembeckjian said. "One whoroutinely 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'ssuccessor will be chosen through a Sept. 13 primary. A ruling afterJuly 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 ofgathering the 4,000 petition signatures needed to qualify for the primary.The trio faces a truncated petitioning period because primary candidatesfor other offices were legally permitted to begin circulating petitions onJune 7.Meanwhile, Brooklyn voters for the first time this November will choosetwo surrogates. Last week, the New York Legislature created a second surrogate's position in the borough as a part of a package of 21 newjudgeships enacted in the closing hours of its session.The new law, if signed as expected by Gov. George E. Pataki, willbecome effective Aug. 1, which is too late in the political calendar fora primary. Instead, the leadership of the Brooklyn Democratic Partywill 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.J.A.I.L.- Judicial Accountability Initiative Law - www.jail4judges.org
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