Democrats battle for Westchester surrogate judge

• Governor's appointment, ballot line benefit Sall.
• Sall's campaign has raised $265,000; Streng's $163,000.
• Post that doles out potentially lucrative appointments to lawyers.
• Primary winner will be odds-on favorite.

The notice in Frank Streng’s mailbox on Aug. 7 let him know the drawing for ballot lines in the Democratic primary for Westchester County surrogate would be held at 11 a.m. — the previous day.

Not that there was ever much chance he could be there — a party official dropped the notice in a mailbox that wasn't emptied until less than 24 hours before the drawing.

That’s how the race has gone for Streng, who will face off against Brandon Sall in the Sept. 10 primary. Sall, a politically connected Harrison attorney, scored the coveted top line on the ballot after an even bigger gift three months earlier — an interim appointment from Gov. Andrew Cuomo.

“It was not supposed to be fair to me," Streng said of Sall's appointment. "It was supposed to control the outcome and prevent the voters from having a choice. It’s all part of a technique of bullying candidates who are not favored by the party bosses. It substituted a political insider’s preference for a public choice on the merits of the candidates. The Democratic primary can correct that.”

Brandon Sall campaign finance reports: July, 32-day, 11-day

Frank Streng campaign finance reports: July, 32-day, 11-day

Team Sall calls that sour grapes and contends that Streng angled just as hard for Cuomo's blessing and the party endorsement.

"Frank went through the process. He never challenged the process," said Sall's campaign adviser, Arnold Linhardt. "He just didn't like the results."

The primary will determine the presumptive favorite for a 10-year term to succeed Anthony Scarpino Jr. as surrogate, an obscure but immensely prestigious and powerful judicial post that determines where millions of dollars in estate and trust settlements end up. The surrogate not only hand picks attorneys to represent parties in estate cases but also must approve their legal fees.

Streng, a 58-year-old lawyer from Cortlandt, and Sall, 55, both have experience in Surrogate's Court and want to make the court more efficient. And both have been active Democrats.

Sall, though, holds the political advantage.

On May 12, when the state Senate confirmed Sall's interim appointment, he stood in the gallery flanked by Reginald Lafayette, the Westchester Democratic chairman who also serves as Democratic commissioner of the Board of Elections; and Mark Weingarten, a real estate lawyer who is a force in county and state Democratic politics.

Weingarten, a childhood friend of Sall's, is the son of a former Democratic county chairman and has long been an influential and generous campaign contributor.

His law firm, DelBello, Donnellan, Weingarten, Wise & Wiederkehr, hired Scarpino when he stepped down in January and expanded its trusts and estates practice with three additional lawyers. But they will not be able to appear before Sall for at least two years because of his past professional relationship with the firm — he worked for the firm and also rented office space there for his own law practice.

One week after the Senate confirmation, the executive committee of the Westchester Democratic party endorsed Sall. Streng chose to challenge the committee's choice.

Hundreds of thousands raised

Surrogate races draw far more campaign contributions than most state and county court contests. One reason may be that nearly every county in the state has only one surrogate. Others suggest there is a pay-to-play component — that lawyers ante up in the hope they’ll be rewarded with appointments that can net them thousands of dollars, sometimes more in complex cases involving wealthy estates.

Sall, with the party’s backing, has raised over $285,000 for the race and had spent $182,000 as of last week, according to campaign finance reports filed with the state Board of Elections. Streng has brought in $163,000, although $103,000 of that is his own money and another $10,500 came from his brother. He has less than $39,000 remaining.

Scarpino suggested that patronage did not drive the finance numbers. He said he expanded the list of available lawyers to several hundred and that, generally, the fees lawyers collected were not significant. He thought the successful fundraising was more likely because there is a primary, like when he first ran for surrogate in 2000. He won a Democratic primary against a fellow state Supreme Court judge and then defeated incumbent Republican Albert Emanuelli. That was the first time a Democrat had ever won a surrogate’s race in Westchester.

But Scarpino’s primary theory wouldn’t explain how he collected $256,000 in his 2010 re-election bid, when he ran unopposed, appearing on five party lines.

Sall said the money he has raised was from friends and longtime colleagues who believe in his candidacy.

"I'm not for sale. My court's not for sale," he said. "My colleagues have supported me because they believe I will run that court properly."

Both Democrats are guaranteed ballot spots in the November general election, Sall on the Working Families Party line and Streng as the Green Party candidate. But the primary winner will be a huge favorite for the 10-year term in the general election, as Democrats hold a sizable advantage over Republicans in registered voters countywide.

The GOP candidate, veteran Westchester lawyer Guy Parisi, who has specialized in election law for decades, has yet to establish a campaign committee. Parisi could only hold the seat for a year; he reaches the mandatory retirement age of 70 in 2016.

Enter the governor

Scarpino's resignation midway through his second term set up the November election. Two judges were assigned to cover the caseload on a temporary basis as several potential Democratic candidates were making their pitches for the nomination to district leaders around the county.

Efforts were also underway for Cuomo to nominate an interim surrogate, even though he rarely filled vacancies on such mid-level courts. State court officials wanted a surrogate in place to handle a backlog of cases, the governor's office said.

Four people were interviewed by the governor’s judicial screening committee and three — Sall, Streng and state Supreme Court Justice Robert DiBella — were found highly qualified.

The state Senate Judiciary Committee interviewed Sall a few hours before his confirmation, but asked nothing of his qualifications, background or plans for the court, a video of the meeting on the Senate website showed. Sen. Diane Savino said it was enough for her that Sall was "a good Democrat." Sen. Bill Perkins questioned whether a $250 contribution had violated judicial ethics rules. It was a reference to Sall's sponsorship of the 2015 Westchester Young Democrats Honors Brunch in April. Sall answered simply: "I always operate within judicial rules."

He said this week that he never sought the sponsorship, that his name was added to the list of sponsors because his contribution for two tickets, which the rules allow, was the same amount other sponsors spent. He had no explanation for why Streng had given the same amount but wasn't listed as a sponsor.

Sall said he knows Cuomo but had not spoken with him at all during the appointment process.

Weingarten's firm has contributed more than $110,000 to Cuomo’s campaign coffers over the past decade. Sall has contributed more than $50,000 to Democratic candidates and committees over that time, including $7,250 to Cuomo. Then-Gov. Eliot Spitzer appointed Sall to the state Thruway Authority board of directors in 2008 and Cuomo tapped him to be chairman of the new Tappan Zee Bridge selection committee.

Weingarten said there was no tie between Scarpino's joining the firm and Sall's appointment. He called his longtime friend "eminently qualified" for the $174,000-a-year post and suggested that Cuomo was impressed by Sall's work with the Thruway Authority and the bridge project.

The party's pick

Scarpino has not publicly endorsed anyone in the race and declined to say how he would vote. He has ties to both candidates: Sall was Scarpino’s treasurer in his 2000 race; Streng served on his transition committee after his win that year.

But among the candidates who hoped to succeed him, Scarpino was arguably closest to DiBella, who worked for 15 years as his law clerk.

DiBella formed a campaign committee but dropped his bid when Sall got the party endorsement.

That’s what Lafayette, the party chairman, expected of Streng as well, claiming in a June 10 missive to party members that Streng and the others had agreed not to challenge the party decision.

“Sadly, only Mr. Streng has chosen to disregard his commitment and go back on his word,” Lafayette wrote.

Blair Horner, legislative director of the New York Public Interest Research Group, said it is a good thing when the governor fills vacancies and not surprising that a party chairman would "move heaven and earth" to support a governor's nominee.

"But we're troubled when we see the heavy hand of party leadership attempting to stifle the electoral process," Horner said. "Ultimately the voters have to decide."

Lafayette said Streng had every right to pursue a primary but should have said so from the outset. He said all the candidates were qualified and would have done a good job, but that he had an obligation to support Sall once the party endorsed him.

"I remain neutral until I get the pulse of what the committee wants," Lafayette said. "Nothing out of the ordinary is being done now that wasn't done in the past and won't be done in the future."

Two Streng supporters, former Westchester Legislator John Nonna and former New Castle town Supervisor Clinton Smith, defended his decision to force a primary in a letter last month to district leaders. While they were not faulting Cuomo for exercising his prerogative to fill the seat on an interim basis, they said the selection process had been “up-ended by the Governor’s eleventh hour appointment” prior to the executive committee’s endorsement vote.

“Frank’s decision to engage in a primary….keeps the right to choose our Surrogate in our hands,” Nonna and Smith wrote.

A leg up

The interim appointment gave Sall a leg up in the race — he could put “Keep” on his election signs instead of just “Elect” and pose for pictures in his judicial robe. But as both are relative unknowns around the county the top spot on the ballot could make a difference.

The notice of the drawing had to be mailed at least two days before. The party secretary, who is also Lafayette's top aide at the Board of Elections, put it in a mailbox outside the Fisher Avenue post office in White Plains on the evening of Aug. 4, even though a branch on Martine Avenue is closer to the Board of Elections and stays open an hour later. The sign inside the box indicated its contents would not be picked up until the next afternoon, leaving little chance Streng would get the notice in time. Election officials were not required to alert Streng’s campaign by phone or email, and they didn’t.

At the drawing, elections officials said, two balls numbered 1 and 2 were placed in a drum. Whichever ball came out first would signify Sall’s ballot line, as he was the first to file nominating petitions in early July. Number 1 emerged, according to election officials.

Streng and his lawyer, Alan Goldston, unsuccessfully challenged the drawing in court, arguing the two-day requirement had been violated. They said they had no way to know whether the drawing was legitimate: They weren't there.

Lafayette said their innuendo in court papers that the drawing had been fixed was insulting. He said the drawing covered all races around the county and suggested that, if he were fixing anything, why did his preferred candidate in the Mount Vernon mayoral primary, incumbent Ernie Davis, end up on the last ballot line.

The late notices could not be avoided, Lafayette said, because election officials were tied up in court fights over several contentious races. The drawing had to be scheduled when it was because ballots had to be mailed in time to reach military personnel.

NYPIRG's Horner said there's no question that ballot lines matter.

"There's a general belief that if voters don't know candidates then, more likely, they'll vote for the first name they see," Horner said.

But Sall and Linhardt disputed that this week, saying primary voters are more politically astute and generally go to the polls knowing for whom they will vote.

"Having said that, I'd rather be first than second," Sall said.

Following the money

Underscoring Sall’s close ties to the Democratic apparatus are his campaign expenditures. He has paid more than $67,000 to Campaign-on-Line, a company run by Gary Stracuzzi, a high-ranking official at the county Board of Elections who is treasurer of the Westchester Democratic Committee.

Also, Raymond Sculky, chairman of Port Chester and Rye Town Democrats and a voting-machine technician at the Board of Elections, has received $2,100 so far as Sall’s campaign treasurer.

Sall’s biggest donors have been the law firm Greenfield, Stein and Senior, which gave $10,000, and its senior partner, Kenneth Stein, who contributed $5,000. The firm and one of its partners, Gary Friedman, also split the $7,500 cost of a fundraiser for Sall last month. The firm was also among several that gave $1,000 to Streng’s campaign at a White Plains fundraiser.

Stein called Sall an “old friend and colleague” whose candidacy he was happy to support.

“If Brandon asked me to run around the courthouse 10 times I probably would,” Stein said.

He discounted suggestions that pay-to-play drove campaign dollars so high in surrogate races, calling that a cynical view of the process.

“If someone thinks that (contributing) gives them special entrée (in Surrogate Court) then they’re smoking something,” Stein said. “(In court) they’re probably facing someone on the other side who did the same thing.”

Twitter: @jonbandler