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Surrogate's Court And Why It Should Go

by Gary Tilzer, Jul 04, 2005

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.


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.


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.


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."


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 Â 

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