The Race for Surrogate Court Judge and Why It Matters
The only certain things in life, the saying goes, are death and taxes. Manhattan residents might add Surrogate’s Court to that list. The little-known but immensely important court is headed by two judges in New York County, and one of those seats will be vacated by retiring Judge Kristin Booth Glen next year.
Two candidates are vying for that seat—which comes with a 14-year term—in a Democratic primary Sept. 13. With low voter turnout expected, the candidates, Judge Rita Mella and Judge Barbara Jaffe, are campaigning not just for themselves, but for awareness of what the court actually does.
The Surrogate’s Court handles all matters of a person’s estate after they’re dead—probate of wills, appointing executors, handling litigation that arises—as well as adoption and guardianship cases. It’s the last place people expect to find themselves but the first recourse for loved ones when a person passes away and leaves anything—no matter how small in value—behind. The average person may not put too much thought into Surrogate’s Court, but its relevance is unavoidable.
“Everybody dies. It’s applicable to your life inevitably,” said Michael Oliva, an independent political consultant who advised current Judge Nora Anderson in her successful campaign in 2008. “People think of it as only for wealthy people, but it’s not necessarily that. Basically it’s a city agency to facilitate people’s proceedings when somebody dies.”
In this court, the judge’s job is to follow the letter of the law when it comes to wills and estates, while also remaining sensitive to the nuances of family dynamics, shifting financial situations and the fact that not everyone adequately prepares for the instance of their death, leaving much up to the court. When a person in Manhattan dies without an heir or a will, it’s up to the court to appoint an executor or guardian, a position that can bring in hefty fees.
“It’s a very powerful position because they’re one of two elected surrogates. They really control the flow of wealth from one generation to another and how quickly and expeditiously and easily it might be handled,” said Christine Shiebler, an attorney with Roe Taroff Taitz and Portman LLP who has represented estates in Suffolk County surrogate court for over 17 years.
“Every will, if it’s going to be utilized by a decedent’s family, it’s got to be probated,” Shiebler said. “Even if you have a very small estate with a very insular family structure, you still go through the same process that someone with billions of dollars does.”
The power of the position also presents the possibility of corruption. In 2004, Brooklyn surrogate judge Michael Feinberg was removed from the bench after it was found that he improperly awarded almost $9 million worth of guardianship fees to a close friend. Sitting Manhattan surrogate Judge Nora Anderson was delayed in being sworn in by a trial; she was accused of breaking campaign finance law by accepting a larger-than-legal contribution from attorney Seth Rubenstein. Anderson was acquitted of all charges and took her place on the bench. Bronx surrogate Judge Lee Holzman was found this summer to have committed official misconduct on the job when he failed to fire an attorney who charged excessive fees to estates to which he was appointed, because Holzman and the attorney were old friends; he may face removal as a result.
Judges Jaffe and Mella both pledge to bring more transparency to the court if elected and to shift the reputation of the court from secretive, shady institution for the rich to an accessible resource for the public. They’re also both faced with proving themselves to a voting public that doesn’t necessarily know what to look for in a surrogate judge, a fact that some say makes high-profile endorsements, like those from the New York Times and the New York City Bar Association, all the more important.
“The first thing you want is somebody who is smart. You got to have the academic goods,” said Lawrence Mandelker, an attorney with the law firm Kantor Davidoff Wolfe Mandelker Twomey & Gallanty who specializes in election law and has represented numerous judicial candidates. Temperament and patience are also paramount qualities.
“You shouldn’t be before a tyrant, you shouldn’t be before an idiot; you should be before a judge whoruns a courtroom in a professional and respectful manner,” Mandelker said. “You want common sense, because most cases get settled, they don’t get tried.”
In fact, a large part of the surrogate judge’s job is administrative, and they have a great deal of influence over the court’s staff and how the court is run, so things like management style and personality also come into play.
“Sensitivity itself is important, and the ability to relate to a wide array of people from different economic strata,” Oliva said of what voters should look for in a candidate. “But the most important thing is understanding the law.”
Judge Rita Mella is running a campaign for Surrogate’s Court based on love.
“People ask me all the time, ‘Why are you doing this?’ ” Mella said in a recent interview. “I tell them, because I fell in love with this court and I found it so interesting and intellectually challenging and I really enjoy the work.”
Mella got her feet wet in Brooklyn’s Surrogate Court as the principal law clerk for Judge Margarita Lopez Torres. She helped the then-new surrogate manage the court and also implemented measures to increase the efficiency and transparency of the court system there, something she hopes to do in Manhattan.
“I believe we can improve this court. I believe we can increase access to justice and make it less suspicious to people,” Mella said. She wants to dispel the vision of the Surrogate’s Court as the bastion for the wealthy or a place where only complex, high-profile cases are resolved. Achieving that goal will depend on how the court is managed and presented to the public, she said.
“The management of the court is important because the surrogate judge will decide the substantive matters, and is the administrative judge of the courts,” Mella said. “This is a court where most matters are decided administratively. Last year in the Manhattan Surrogate’s Court there were 10,100 proceedings filed. There were only 12 hearings or trials. That’s why it is so important to have a judge in there that has had the experience working in this court.”
She also cited the fact that with a huge caseload and only two judges, the new judge will be expected to learn the job quickly.
“Unlike other courts where there are 20 judges or 25 judges or even 15 judges … in this court, the first day of the new judge is another day in the life of the court, and you have to hit the ground running,” she said.
Mella is hoping to implement some new practices at the court if she is elected. Though the Manhattan court has avoided corruption scandals like those that have tarnished other counties, she says that “does not mean that the court could not use some new ideas.”
Some of those ideas include creating a website for the Public Administrator’s Office, the agency that the court appoints to administer estates when a person dies without a will, so that the public can be kept abreast of how the office functions and the fees it receives. She would also post more public information about the court online, like case dockets and other court business.
She would also look to increase the diversity of the court’s staff and the people who work with the court by reaching out to educate populations who might be intimidated by the court’s reputation.
“One of the biggest challenges of this court is the way people perceive it,” Mella said. “Everybody thinks of the Surrogate’s Court as a very exclusive club, as a very elitist institution, as a secret place to which not many people have access. I believe that this perception discourages members of the public as well as attorneys—it discourages participation by a broader range of the population and the bar.”
Mella was elected to civil court in 2006 and serves as a criminal court judge in Manhattan. She also teaches administrative law at CUNY Law School, where she got her degree in 1991. She was born in the Dominican Republic and immigrated to the United States when she was 22. Mella is a member of numerous professional and bar associations, including the National Association of Women Judges, the Association of Judges of Hispanic Heritage and the Judicial Friends.
Judge Barbara Jaffe didn’t always envision herself in black robes sitting on the bench. She began her career as an administrator for a wholesale arts and antiques company for almost eight years.
But even though she found her true passion in the law, she still cites her business background and arts expertise as unique qualities that would be a great boon to a Surrogate’s Court judge.
“I sat in the auctions, I bought and sold goods, I took care of the paperwork, I paid the bills, I invoiced customers, I paid employees,” she said of her time in the arts world. “I didn’t really like it, so I went to law school and I never looked back, but I know how to manage. Those management skills and entrepreneurial skills that I obtained in the business will help me in looking at the issues in the Surrogate’s Court.”
She also has seen her fair share of art appraisals and knows her way around an expensive painting, something that could come in handy for a court that is often tasked with placing a value on pricey collections.
Jaffe has been a judge for the past 10 years, after serving as an attorney and law clerk, and she’s currently on the state Supreme Court hearing matrimonial cases. She often hears extremely emotional cases, dealing with divorce, division of assets and child custody, experience that she hopes will translate well to dealing with surrogate cases where there is often the fraught element of a deceased family member to contend with in addition to legal issues.
“It’s a terrible thing to divorce; it’s a terrible thing to lose a loved one, and so being in court is not optimal emotionally,” said Jaffe. “In Surrogate’s Court, you have siblings, cousins, whatever, who fight, and it really does break my heart. I really want to see to it that those cases are resolved as quickly as possible so that people can put these problems behind them.”
Compassion and openness are important elements of what makes the Surrogate’s Court successful, Jaffe said.
“It’s got to be made comfortable for everybody, including nontraditional families who have not always received a welcome embrace. You never stop educating staff about sensitivity to all kinds of people—from nontraditional families, from non-English-speaking communities,” she said. “Surrogate’s Court is now more than ever dealing with self-represented litigants who don’t know about the system, and it’s a fairly complex procedure in the Surrogate’s Court.”
Jaffe produced a legal handbook for the criminal court that has been translated into Spanish, Chinese, Korean, Russian and French and distributed around the state, and she plans to do the same for Surrogate’s Court.
Jaffe also prides herself on being highly productive.
“Motions don’t languish with me,” she said. “I have decided thousands of motions in serious civil matters, in hotly contested civil cases involving a lot of money, and I’ve been reversed only once. That bears out that I’m not only swift, but I am careful.”
While she hasn’t worked in the Surrogate’s Court, Jaffe said that her experience as a judge in similar situations—dealing with emotionally charged cases or high-value assets—gives her the right qualifications.
“I already have judicial experience taking care of these matters. Not just experience as an attorney or a court employee, but real judicial experience, which I don’t think you can substitute anything for,” Jaffe said.
Jaffe is currently the co-chair of the Committee on Professional Ethics and Discipline for the New York Women’s Bar Association. She also serves on the Committee on the Supreme Court, the Pro Bono Committee and the Committee on LGBT Issues for the New York County Lawyers’ Association.
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