5 N.Y.3d 206 (2005)
A judge’s systematic failure to comply with statutory requirements, coupled with conduct creating an appearance of impropriety, warrants removal from office.
Summary
This case concerns the removal of Kings County Surrogate Michael H. Feinberg for misconduct. The New York Court of Appeals upheld the State Commission on Judicial Conduct’s determination that Feinberg be removed for systematically failing to comply with Surrogate’s Court Procedure Act (SCPA) § 1108(2)(c) regarding the documentation and justification of legal fees awarded to counsel for the Public Administrator. The court found Feinberg’s repeated failure to require affidavits of legal services, consider statutory factors when setting fees, and his appointment of a close friend as counsel without a proper search, created an appearance of impropriety warranting removal.
Facts
Michael Feinberg was elected Surrogate of Kings County in 1996. Upon taking office in 1997, he appointed Louis Rosenthal, a long-time friend and political supporter, as counsel to the Public Administrator, without conducting a search or interview process. From January 1997 to May 2002, Feinberg approved legal fees for Rosenthal based on a percentage (typically 8%) of the estate’s value, without requiring affidavits of legal services or considering the factors outlined in SCPA 1108(2)(c). Feinberg claimed ignorance of the statutory requirements. Between 1997 and 2002, Feinberg awarded Rosenthal over $8.6 million in legal fees.
Procedural History
The State Commission on Judicial Conduct filed a disciplinary complaint against Feinberg, alleging violations of the Rules of Judicial Conduct. A referee found Feinberg violated the rules by awarding fees without affidavits and failing to consider statutory factors. The Commission adopted the referee’s findings and added a violation for creating an appearance of impropriety, determining removal was appropriate. Feinberg appealed to the New York Court of Appeals.
Issue(s)
Whether the Surrogate’s systematic failure to comply with SCPA 1108(2)(c) and his conduct created an appearance of impropriety, warranting removal from judicial office.
Holding
Yes, because Feinberg’s consistent disregard for fundamental statutory requirements, combined with the appearance of favoritism in awarding substantial fees to a close friend without proper documentation, constituted misconduct justifying removal.
Court’s Reasoning
The Court of Appeals emphasized that judges must maintain professional competence in the law, and Feinberg’s ignorance of SCPA 1108(2)(c) demonstrated a shocking disregard for the law governing his office. The court stated that the purpose of the affidavit and individualized consideration requirements is to ensure that estates are paying only for the actual cost of administration. Feinberg’s pro forma practice of awarding 8% of an estate’s value without attention to the work done violated the clear legal requirement and legislative intent. The court rejected Feinberg’s argument that “shall consider” did not mean “must consider,” holding that the statute directs a surrogate to review the statutory factors prior to compensating counsel. Further, the court found that Feinberg’s appointment of a close friend without a proper search, coupled with the unsubstantiated award of millions of dollars in fees, created a strong appearance of favoritism. The court concluded that these actions debased his office and eroded public confidence, justifying removal.