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1
NEW YORK STATE SENATE
STANDTNG COMMITTEE ON JUDICIARY
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3
PUBLIC HEARTNG IN THE MATTER
OF
AN EXAMINATION OF THE .]UDICIAL DISCIPLINARY
PROCESS
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Senate Hearing
250 Broadway
19th Floor
New York, N.Y.
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6
7
Room
September 24, 2009
Thursday
l-0 a.m.
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10
1l_
BEFORE:
Senator .lohn Sampson
Chair
'Judi ciary Committee
13
Senator Bill Perkins
Chair
Corporations, Authorities
L4
Senator George D. l{aziarz
15
Senator Eric
L6
Senator Ruben Diaz
I2
L7
18
OTHER STAFF MEMBERS:
She11y Mayer
j orit.y Counsel
L9
Ma
20
Lisa Lashley
Counse I
2t
22
23
24
Adams
& Commissions
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INDEX OF SPEAKERS
1
2
RICHARD KUSE
3
CATHERINE WILSON
2L
4
VICTOR
90
5
DOUGLAS HIGBEE
1-47
6
.TUDITH HERSKOWITZ
52
7
ANDREA WILKINSON
67
I
MARIA GKANIOS
9B
9
REGINA FEI,TON
1-2 6
10
KATHRYN MAI,ARKEY
15s
1_1
NORA RENZULI
158
t2
STEPHANIE KLEIN
155
13
IKE ARUTI
l_80
l4
TERRENCE FINNAN
a94
l_5
GICELLA WEISSHAUS
L98
t5
ELIOT BERNSTEIN
205
1-7
SUSAN MCCORMICK
234
18
PATRICK HANDLEY
237
t9
20
2L
22
23
24
KOVNER
7
L26
1-
Thank you very much.
z
MS. GKANIOS :
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SENATOR
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SAMPSON: Regina Felton.
MS. FELTON:
6
SENATOR
Yes, I am here, right.
SAMPSON: Ms. Felton, you
have ten minutes.
The clock is running.
8
Mr. Hi-gbee, are you ready?
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MR. HfcBEE:
Yes
.
10
SENATOR SAMPSON:
11
MS. FELTON:
I2
Is
she around?
5
7
Senators, thank you.
Okay.
Thank you, Senator
Sampson.
My name is Regina Felton,
13
I have been
I4
practicing
15
Bedford-Stuyvesant area since A990.
in Brooklyn. New York in the
Prior to that f was
L5
f worked in the
t7
Manhattan D.A.'s office,
18
counsel to the American Stock Exchange,
1_9
Senior Special Counsel to the New York Stock
20
Exchange, Assistant
2L
securities
22
of market surveillance
23
firm.
24
f was senior
General Counsel to
a
firm on WaI1 Street and also head
When I left
for that particular
and went to
L27
2
Bedford-Stuyvesant I did so with the express
desire to bring a kind of service to
3
indigent
4
who were underrepresented,
5
my ski11s.
t_
people who lived in the area and
since I had honed
So you can imagine when I encountered
6
8
judge whose name is Arthur M. Schack who
sits in. Kings County and who I had three
9
cases before and wound uP as a solo
7
in Bedford-Stuyvesant on the
l-0
pracLitioner
1l_
f
I2
successive occasions.
t_3
T4
15
l-5
L7
a
ront page of the Law Journal on three
And I point out to you that in the 'JuIy
8th, 20O8 Law .Iournal, lawyer ordered to pay
fees after pursuing frivolous suit.
In the August L2, 2008 New York Law
ilournal , j ai 1 f ines. given to solo who
20
withheld downpaymenL.
In the August l-4th section of The New
York Times, court sanct j-ons aLtorney $10, 000
2L
over $4O,OOO in costs for failing
22
downpayment.
18
1-9
23
24
to return
SAMPSON: So the million
do1lar question is did that occur?
SENATOR
1-2
1
What the j udge i s indicat. ing that, you
4
a
did, did you withhold the downpayments, or
3
what did you do to warrant,
4
act ions that. the j udge took?
MS
5
. FEi,TON:
I guess, the
To give you the short
6
answer, and I wrote a letter
7
Journal,
B
restraining
9
particular
Lo the
Law
Judge Schack actual ly was under
notice not to adjudicate
a
the
case.
I have had three cases before him and
L0
encounter with him was in 2003 and
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my first
L2
while I thought it was somewhat strange
t4
I guess, at. that t j-me more
we1l,
Lhan 20 years, r just believed that
l_5
if
L5
were over the age of 80, two of them were
L7
closer to 90.
t3
. having practiced,
this was a foreclosure,
hy three clients
were located in
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The houses all
t9
Bedford-Stuyvesant,
20
Clinton hi11, and the seniors were under
2t
educated and also indigent,
with one exception in
thaL's two.
22
One of them I represented pro bono and
23
incurred the ire of the judge when I
resisted a foreclosure, that's how I got on
24
B
L29
1
his radar.
f went to the Appellate Division
2
when
3
for this foreclosure
4
called a Writ of Assistance which is
5
inappropriate
6
title,
7
Writ of Assistance had been issued to remove
8
that person so that the new owner could take
9
possession, the writ
10
11_
he had issued something
for a person who is stil1
in'
if there had been a f orecl-osure and
of Assistance would
have been appropriate.
But there were some other anomalies as
13
well and those anomalies were that the same
person was appointed by this judge as both
l4
the referee and the receiver.
t2
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I obj ected
t6
SENATOR SAMPSON: When
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t_8
MS. FELTON:
individual",
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re f eree
The judge appointed an
both as the receiver
and as the
.
2t
SENATOR SAMPSON:
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MS. FELTON:
24
you say the
same person appointed.
L9
23
a
That's
fs that
odd?
a conflict
of
interest.
And so when I asked him
we1I, when r
130
1
pointed this out
SENATOR SAMPSON:
2
3
MS. FELTON:
SENATOR
the rent.
SAMPSON: And the referee is
Ehe one who se1ls the property.
MS. FELTON:
I
9
Receiver, the receiver
is the person who collects
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7
Exactly.
In effect
he had done is he had given title
to this one individual
property
11
given him the right
t2
then had directed that my client,
13
st111 in title
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judgment of forecfosure
15
and he had d.irected that she pay rent.
to collect
and had
the rents and
who was
and the foreclosure,
a
had not been issued,
Now, she's in title,
l6
she's the owner of
t7
the property and so I was d.oing this pro
18
bono and had an obligation
19
forth
to run back and
to the Appellate Division.
SENATOR
20
what
to this
10
2L
and
the
4
5
As the referee
SAMPSON: ThiS iS
ThC
O'Therry case.
22
MS. FELTON:
This is the 2003 and
is how r first
became acquainted with
23
this
24
.fudge Arthur M. Schack.
13
He wrote some pretty
l_
2
in that part.icular
3
was going back and forth
4
Division
bizarre
case, but in any event I
with the Appellate
and I was successful.
At some point when I couldn't
5
any more because I was doing it
7
handle it
pro bono
1ega1 services took over.
My next case with,Judge Schack had to
I
9
opinions
do with a senior citizen
who was close to
L0
years old and whose deed had twice been
l_ l_
forged.
The first
L2
13
'1,4
time the deed was forged
another attorney handled the case and got
and had gotten a judgment cancelling
15
title
1-6
deed.
interests
that that company had,
equitable
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the company was United Equities,
20
cancell-ed,
22
The company nevertheless
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24
title
all
to
18
21,
a
in the company who had forged the
The company was directed
T7
90
was
transferred
again under a second forged deed.
They removed
who then had title,
the person, the person
forged titIe,
removed
32
personal possessions from
l_
aI1 of my client's
2
the house, changed the locks and brought
3
eviction
4
5
5
actions against him.
Now, this company was served by the
Secretary of State.
The judge wrote the decision
saying
7
that I had served the wrong company,
8
notwithstanding
9
the fact !.hat the company
had been served by the Secretary of State
the senior citizen
who again
10
and my client,
11-
was elderIy,
12
this house, and he was mortified
13
that he had been removed from the property
I4
and the police had been called
15
as a trespasser.
15
the only asset he owned was
by the fact
to remove him
And I, because Irm in the
L7
Bedford-stuyvesant
18
represent him.
community, attempted to
19
Now the issue here is,
as far as I
20
concerned, is an obLigation
2T
we have, if
22
and the indigent,
and it was based on the
23
decislons written
by ,rudge Schack, he
24
removing my right
to represent the senior
am
that I feel that
we can, to represent the elderly
was
133
1
cit.izer].
3
Now, the issues that I brought to the
Commission on,Judicial Conduct were as
4
fo1lows; first
2
I indicated
that this judge
6
had an underground of wricing decisions that
were never filed and therefore not
7
appealable.
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8
9
l_0
11
L2
13
I4
15
l_5
T7
l-8
Now what I do I mean bY that?
Where
judge issues an order, the order obviously
However if the judge does
must be followed.
not file the order, then you cannot appeal'
You cannot file a Notice of Appeal, you
If
cannot go to the Appellate Division'
he'sretainingthatfileinhischambers'
then you are either forced to do exactly
what the judge says, ot you can write to the
commission on Judicial conduct, which I did.
to when
Now I listened very carefully
2L
Robert Tabeckian spoke on June Bth' 2009 '
and he articutated the fact that the
commission's objective was not only to
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investigate
t9
20
23
24
a
complaints,
but also to
sure that the commissi-on maintains
independent. judiciarY.
make
an
134
I don't see how it. is that the
1
2
commission can take on two competing tasks,
3
because it is a conflict
The commission then becomes or aligns
4
with the judges and gives up it's
5
itself
5
duty Eo the public to investigate
7
the courts unbiased.
B
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10
t_
of interest.
1_
and keep
Some judges would
SENATOR SAMPSON:
disagree with that.
MS
.
FEIJTON
:
So A, in wri t ing t o the
Conduct where r
Commission on,Judicial
with this
judge,
1,2
explained my history
l_3
with respect to this one senior,
L4
judge completely misstated the facts,
B,
that. the
now
1,6
you're an attorney, Senator Sampson, and we
do know that the judge has a prerogat.ive to
1,7
inLerpret
18
prerogative
L9
get a certain
t_5
the factsi
but he has no judicial
to create new facts in order to
result.
20
In the cases that I had before
2t
SENATOR SAMPSON:
22
23
24
judicial
That's called
activism.
MS. FETTON:
cases that T had
be f
Well, aLl right.
ore
,f
fn the
ust i ce Schack, he
135
created new facts,
he created
1
actually
2
fact pattern that f was able to disprove/
3
and notwithstandirg,
4
page of the paper without the opportunity
5
respond and without the opportunity
6
continue representing
7
community without having them l-ook askance
I
at me because my pristine
9
been sullied.
l_0
a
I wind up on the front
clients
to
to
in that
reputation
had
Second1y, r had a second case with
l2
case with ,Judge Schack, again he
exercised. his judicial prerogative to create
13
and misstate the facLs, and at the time
l4
adjudicated
L5
t6
his family had brought a Petition
questioning his ment,al health and the judge
L7
sitting
18
restraining
1l-
t9
20
21,
the third
a case where my client
a
notice.
That restraining
notice forbade any
of that case
Notwithstanding
the fact
22
ca1led to his attention,
23
adjudicated
24
suffered
in the mental heal.th part issued
adjudication
he
that this
,fustice Schack
the case.
This was a case again involving
was
13
property of a person who
l_
lucrative
2
almost 90 years old, and now a person who's
3
mental capacity was being challenged by the
4
family and where there was a restraining
5
notice in effecL direcEing
5
happen untj-l the mental status of my client
7
was determined.
was
that nothing
f again found myself on the front page
I
10
of the paper with more than $40,000 in costs
and fees ascribed to fr€, noLwithstanding the
11
fact that there was a restraining
9
notice.
The court issued orders in this case as
L2
and in this particular
case a motion
13
well,
l4
was made where the Plaintiff's
15
my client
16
Detendants, I was named because I was the
L."l
escrow agent holding the downpayment in
L8
escrow account, and my client,
L9
also was named.
20
2I
22
23
24
attorney and
and I were bot.h named as
my
obviously,
The attorney who represented Plaintiff
wanted to amend the complaint.
Somehow I was not served,
even though r did not
appear, a default judgment could have been
notwithstanding
5
137
t_
entered, though.fustice
2
order which never was filed
3
directed
4
take whatever action was necessary in order
5
to bring me to the court.
that the Sheriff
Now, in addition
6
Schack issued
i-n which
an
he
pick me up and
when I l-earned of the
7
order I attempted to file
I
Appeal, the order had never been fi1ed.
SENATOR SAMPSON:
9
file
a Notice
10
canrt
11
hasn' t been filed.
MS.
L2
FELTON:
a Notice of
That's
right,
of Appeal if
That's right,
lou
the order
I
L3
attempted to bring a Writ of
14
d.irecting
15
that I could. appeal and get a stay.
Mandamus
the j udge to f il-e the order so
Wel-l, whaE happened is I went to the
15
I notified
the State Attorney
L7
court,
18
General's office,
19
Attorney General appeared, the Appel-l-ate
20
Division
2L
Appeal, which is highly unusual, you do not
22
file
in the Appellate Division,
23
file
the Notice of Appeal in the Appellat,e
24
Division,
the assistant
on t.he spot filed
State
the Notice of
buE rather you file
you don't
it
in the
138
1
State Supreme Court, the Appell-ate Division
2
filed
3
the spot, revised my order by hand, which is
4
also something highly unusual, where the
5
Court Clerk is revising
6
papers, and I was told that f didn't
'1
stay but I should appear in the ,Judg'e's part
B
for a hearing.
the Notice of Appeal to two orders on
an attorney's
get. the
Now, the j udge had his 1aw secret.ary
9
me on approximately
we11, dctually
t0
call
L1-
four occasions, and r was so concerned about
13
th.e nature of the conversation that I
1aw
having with the Judge's principal
1,4
secretary,
15
speaker, turned on my dict.aphone and tape
16
recorded each of the four conversations
L7
which I then settled
1B
Court C1erk so that he could revise the
19
transcript
20
adversary, no one obj ected to the content or
2L
the accuracy of the conversat j-ons .
1-2
22
23
24
was
I placed the phone on the
on notice with the
and f sent a coPY to
mY
The 1aw clerk scheduled a conference in
each of those
f
our conve'rsations.
When I appeared and without
notice I
13
was subj ected to a contempt hearing.
2
Now mind you there was a restraining
3
notice in this
4
cont inuing to
5
notwithstanding
5
7
I
9
10
case, so the judge is
ad
j udicat.e the cas
e
the restraining
notice.
f show up unprepared for a contempt
heari-ng without notice under the New York
State judiciary law that is supposed to say
warning, 1rou could go to jail
that.
and aLl of
SAMPSON: CorrECt.
t-L
SENATOR
72
MS. FELTON:
And he finds me in
13
contempt, direct.s me to pay the money f rom
1,4
my escrow account and a certain
15
as a penalty for not having turned the money
16
over earlier,
I7
restraining
1_8
notwithst,anding
sum of money
the
notice.
When I appeared i-n court,
f had
check from my escrow account, but
19
certified
20
I did not have the check that he had
21,
ascribed as a penalty.
22
23
24
a
SENATOR
SAMPSON: How much was that?
$6,678. I indicated to
the judge that f had filed an appeal, the
MS. FEI,TON:
14
1
Appellate oivision
2
of Appeal.
3
had taken in the Notices
I perfected the appeal, I advised the
4
judge that f had perfected the appeal and he
5
said that f had an hour within
6
over this
7
which to turn
$5,700 and would I do that?
When I said rlo, that I would not,
I
placed me in handcuffs, I have the
9
transcript,
he
and f was taken to the court
lounge, I guess that's
what it
1-0
officer's
11
was, where f was handcuffed to a chair,
a
1,2
Sheri f f came and picked me uP , I spent
1l-
13
days on Riker's
l4
15
I6
fsland.
Remove that
THE AUDIENCE:
judge,
please.
MS. FELTON:
fsland,
T7
Riker's
l_8
my incarceration
I sPent 11 daYs on
of mine learned of
and went to the judge to
a friend
20
negotiate my release.
The judge indicated
2t
ret.ired police of f icer,
22
23
Island and get the $30,000 check that f had
in court on the day of my arrest and take
24
that check with his check to the home of
t9
that my friend,
a
had to go to Riker'
my
s
0
L4t
lawyer before he would issue
adversary's
z
3
order to release
me.
out to Long fsland to thi
driving
5
attorney's
5
from 9:00 that morning I
7
10:00 that evening.
9
to Riker's
So some 300 miles driving
4
I
an
s
house, going back out to Riker's,
I didn't
was
released at
know that the judge had, after
I had been removed from the courtroom, had
L0
found that f was in contempt and had also
11
given me another fine of $500
1,2
rn addition
sorry
$SOO.
to that about three months
13
af ter I had been released the j udge j-ssued
L4
an order to Show Cause sua sponte where
15
determined that I should pay a sanction of
he
1"7
$1o,o0o for having violated his order in the
f irst p1ace, notwit.hstanding the f act that
18
when he issued the order there was
L9
restraining
'J"5
20
a
notice.
The Order to Show Cause is supposed to
kind of way with the
2t
be served in a certain
22
warnings and personal service,
23
The order also indicated and the order
happened to have been published j-n the New
24
it was not,.
7_42
1
York Law .Journa1, something I have never
2
seen in all
And so again I wind up in the New York
3
4
of my years of pract.ice.
Law .Tourna1.
I was told
5
or the order,
5
to Show Cause indicated
7
under threat
8
that I either
appear
of arrest or make the $10,000
payment under the threat of arrest.
SENATOR
9
L0
the Order
SAMPSON: So what happened?
MS. FELTON:
I went to court,
I
11
submitted papers, T tendered a cashiers
T2
check for $1O,OOO to the lJawyers rund for
13
'Client
Protection.
1-4
Now, the Grievance Committee examined
15
my escrow account, there was nothing wrong
t5
with it.
t7
The only entries,
the only entries
18
the account were those of that accrued
L9
interest.
20
in
I haven't been found to have engaged in
22
any kind of wrongdoing whatsoever.
This judge, for whatever reason, has
23
targeted
21-
24
me.
Now, I understand that judges are
I43
1
supposed to be given some kind of leeway in
2
terms of the way that they run their
court.
But t.here is no question A, that this
3
4
judge lied
5
have been singled out for whatever reason,'
6
and C, that the Commission on Judicial
7
Conduct has done absolutely
8
Now I have not written
9
10
in his decisions,
and B, that r
nothing.
to the
Commission on ,JudiciaI Conduct one time, but
I beli-eve more than half a dozen times.
What bothers me is not only the fact.
L1
and the payment of
I2
that the order of arrest
13
the fines and the issuance of the Orders to
t4
Show Cause do not appear as entries
15
unified
L5
but this
1,'7
tried
18
indigent
L9
chosen to do so to protect
20
that they had, which was the house in which
2T
they 1ived.
court system and it's
supposed to,
judge seems to have deliberately
to prevent me from represent.ing
seniors in my community when I have
22
Now the
23
SENATOR
24
in the
the only asset
SAMPSON: The question is,
because we have to end in a minute because
L44
1
time has extended, you wrote to the judicial
2
conduct committ.ee?
3
MS. FELTON:
4
SENATOR
5
the incident
SAMPSON: Specifically
MS. FELTON:
7
SENATOR
9
10
1-L
L2
l-3
about
that occurred, correct?
6
8
Many times.
Yes
-
SAMPSON: Have you got.ten any
response?
Oh, /€s, I did.
SENATOR SAMPSON: What has the
MS. FELTON:
response been?
MS. FELTON:
There was no indication
of wrongdoing.
L4
SENATOR SAMPSON:
Senator Perkins.
15
SENATOR PERKINS:
You said you sent
to the commission, can we get copies
L6
letters
L7
of those?
18
1_9
MS. FELTON:
f gave you a package
with ref erence t,o one of those Ietters,
and
2l
f understand from Mr. Spotts that he scanned
I guess your computer, I
it into your
22
have additional
23
would like
20
24
hard copies here, if you
to have one.
This is only one of the cases and this
145
1
was the most egregious, because I wound up
2
in Riker's
Island.
But I have all of the
3
I have all
4
t.he complaints which I have written,
5
all
6
that there was no wrongdoing.
7
of their
SENATOR
I have
responses in which they said
PERKINS:
Did they indicate
B
the basis upon which they came to their
9
conc lusion?
10
of
MS. FELTON:
We11, I wrote,
in fact I
1l_
was so dumbfounded by the fact that there
t2
was no investigation
13
no one called me back, I actuall-y caIled the
I4
author of the letter
15
the basis for closing the case, and r
16
totd they had
t7
writing,
l-8
that it was confidential
19
entitled
20
that I knew of , because
and asked her what
was
was
that I had to do it, in
I then wroLe and t.hen I was told
and f wasn't
to know.
SENATOR
SAMPSON: So, Ms. Felton,
one
21,
thing you can rest assured r will
22
Senator Maziarz, do ybu have any questions?
23
SENATOR MAZIARZ:
No.
24
SENATOR SAMPSON:
One thing,
t.alk
|ou can
L46
1
rest assured that I will
2
respect. to this and f guess have
3
conversation with the Commi-ssion onJudicial
4
Conduct, especially
5
magnitude seems to be very important that
6
you canrt j ust receive a lett.er,
and f can
7
understand it being confidential,
because
I
it's
9
confidential.
t-1
issues and procedures are
true, c€rtain
this
hearings like
a
when something of this
But I will
10
foll-ow-up with
is why we are having
this.
13
We11, thank You very
much, I appreciate that, but I also would
74
like
15
reputation
l_5
that I don't ever think that I can recover
L7
ir.
1,2
18
MS. FELTON:
you to weigh t.he fact that
has been tarnished
to a degree
I have never heard of a solo
is on the corner of
19
practitioner,
20
Fulton and Marcy in the heart of
2t
Bedford- Stuyvesant
22
my
my office
When is it
.
that a solo practitioner
page of the
23
wj-nds up repeatedly on the front
24
New York Law .Tournal in such disparaging
L47
1
2
terms
?
I have never heard of it.
And the
4
attorney Mark Dwyer, the one who went to
Canada and forged all those papers, he got
5
less press than I did.
3
6
7
SAMPSON: Thank You very
much, Ms. Felton, thank you- Mr. Higbee.
SENATOR
8
MR. HIGBEE:
9
SENATOR
t_0
Yes.
SAMPSON: Mr- Higbee, ten
minutes.
l4
Senator SamPSon, thank
My name is
y": for holding these hearings.
Dougtas Higbee, I have been embroiled in a
matrimonial and then some si-nce 1"944 '
15
I am going to fast forward up to where
11
L2
13
MR. HfGBEE:
15
my wif e's sister,
t7
practicing
an att.orneY here
I9
in New York and Connecticut using
her power beyond that was employed by the
Office of Attorney General right up the
20
street.
2l
And at which time thought that she
and being part of a fraud sexual
didn't
18
22
23
24
abuse allegatlon of me in .Tanuary L997,
subsequentfy leading to my arrest, March
20