(2017/5777)

Kol Torah proudly presents highlights from an amicus curiae (friend of the court) brief submitted by Chaim Kagedan (’99) to the United States Supreme Court. In Chaim’s second involvement with the Supreme Court, he seeks to convince the Court to overturn a decision of the Michigan Supreme Court that limited the authority of Beit Din.

I. THE ORIGINS AND PROCEDURES OF THE BETH DIN

The Jewish institution known as “Beth Din,” or rabbinic court, dates back to the time of Moses, who established a system of courts to “judge the people” while leading them through the wilderness toward the Promised Land. Exodus 18:21. Since that time, the Beth Din has been a fixture of Jewish communities throughout history and around the world. The United States is no exception. Batei Din (the plural of Beth Din) are found in most of the country’s major metropolitan centers, as well as in many smaller towns and villages that boast substantial Orthodox Jewish populations.

A Beth Din applies Halakha, or Jewish law, to reach determinations on substantive matters. The procedural rules vary somewhat from panel to panel, much like the variation seen in the local rules of federal courts. However, in all instances parties who come before a Beth Din are afforded due process, as well as the opportunity to present argument and evidence to the panel.

As is true for any judicial system, the amount of time necessary for a Beth Din to adjudicate a matter to finality is dependent upon a variety of factors, including the complexity of the legal issues, logistical hurdles relating to the parties, witnesses, or other evidence, and whether the initial determination is appealed. While most matters are disposed of within a year or two, there are some disputes that require far more time to resolve. In addition to the Beth Din adjudication that gave rise to this case, which began in 1995 and did not conclude until 2009, another prominent example is the protracted succession dispute between the two heirs-apparent to the Bobover Hasidic dynasty. In that matter, Beth Din proceedings began in 2005 and did not conclude until 2014.[1]

II. THE MANDATORY NATURE OF BETH DIN PROCEEDINGS

It is hornbook Jewish law that all civil disputes between Jewish individuals and/or organizations must in the first instance be submitted to a Beth Din for adjudication. This principle is derived from Exodus 21, wherein the Torah introduces a series of civil laws with the prefatory phrase “[a]nd these are the laws that you shall place before them.” Exodus 21:1 (emphasis added). The Talmud interprets the word “them” in this verse as referring to rabbinic courts, and applies the canon of expressio unius est exclusio alterius to construe the verse as specifically excluding secular courts as an option for the resolution of intra-Jewish disputes. Babylonian Talmud, Gittin 88b. The obligation for Jews (and Jewish organizations) to seek adjudication from a Beth Din, and the concomitant prohibition against filing suit in secular court, has been thoroughly codified in the major codes of Jewish law. See Maimonides, Mishneh Torah, Sanhedrin 26:7; Shulchan Aruch, Choshen Mishpat 26.

The mandate that intra-Jewish disputes be heard by a Beth Din rather than a secular court remains in force even in instances where the law that would be applied by the secular court is substantively indistinguishable from the relevant Jewish law. This is so because the “legislative intent” behind the rule is not focused solely upon the results of the adjudication, but also upon the socio-religious implications of voluntarily opting to be bound by a legal system not derived from the Torah. Thus, Maimonides writes that “[w]hoever submits a suit for adjudication to [a secular court] . . . is a wicked man. It is as though he reviled, blasphemed, and rebelled against the Torah of Moses.” Maimonides, supra, at 26:7. Apropos of the communal nature of the obligation, the punishment for violating this rule is exclusion from the social and religious community – i.e., the same group that the violator implicitly shunned by engaging a judicial system outside of the faith.

If the parties to a dispute have fully exhausted the Beth Din process, and the prevailing party finds itself unable to collect its award due to the recalcitrance of the losing party, the prevailing party may at that juncture petition for rabbinic permission to file suit in secular court to vindicate its rights. Maimonides, supra, at 26:7. This is precisely what happened below. The dispute between Petitioner and Respondents was adjudicated by an escalating series of Beth Din panels, culminating with a determination in favor of Petitioner from the highest judicial body within the Chabad-Lubavitch Beth Din system. Following the conclusion of the appellate process and the issuance of a final judgment, Petitioner demanded satisfaction of the award and Respondents refused. At that point, having exhausted all available options within the Beth Din system, Petitioner was permitted under Jewish law to seek rabbinic permission to file suit in secular court. Petitioner did so, and permission was granted. This case followed.

III. THE BENEFITS OF A VIABLE BETH DIN SYSTEM IN THE UNITED STATES

The existence of a viable Beth Din system in the United States is beneficial not only to the country’s Orthodox Jewish population, but also to society as a whole.

First, from a pragmatic perspective, having a viable Beth Din system is of vital importance to Orthodox Jews because it provides a forum for the resolution of disputes that turn, in whole or in part, on issues of Judaic doctrine or faith. Whereas a state or federal court may well find itself unable to reach the merits of such a dispute due to constitutional entanglement concerns, a Beth Din panel composed of learned rabbis is perfectly suited to such a task. The availability of a viable Beth Din system is therefore crucial to ensure that parties are not denied access to justice simply because one element of an otherwise-justiciable dispute happens to implicate an issue of Jewish law or faith.

Second, the Beth Din system serves a function for the Orthodox Jewish community beyond pure adjudication. In reaching a determination on a disputed matter, a Beth Din not only applies Jewish law, but also takes into account Jewish values and ethics, compliance with which is viewed as of equal or greater importance than compliance with the letter of the Halakha. In this way, the Beth Din is “not simply serving a judicial function, but rather is also serving a religious function, leveraging the shared religious worldview of the parties,” to arrive at a resolution that is not only in accordance with the law, but is also in full harmony with all aspects of the parties’ faith.

Third, the availability of a viable Beth Din system plays a role in alleviating the burden upon the nation’s state and federal courts. Although definitive statistics are not readily available due to the absence of a centralized administrative body, anecdotal evidence indicates that Batei Din in the United States adjudicate thousands of matters annually, and also shows a strong upward trend in that number over recent years, portending continued growth in the future. While not every dispute submitted to a Beth Din would have otherwise been filed in secular court, the proportion of matters that are diverted from secular court by virtue of the availability of a viable Beth Din system is undoubtedly significant enough to make a material difference to judicial caseloads – particularly in jurisdictions with high concentrations of Orthodox Jews.

IV. THE DECISION BY THE MICHIGAN SUPREME COURT BELOW REPRESENTS A GRAVE SYSTEMIC THREAT TO THE VIABILITY OF BATEI DIN IN THE UNITED STATES

In Deuteronomy 16:18, the Torah commands: “Judges and officers shall you appoint for yourself in all of your towns. . . .” This verse is understood as mandating the establishment of not only a rabbinic court system, but also a police force to uphold the law as articulated by the rabbinic courts. Indeed, the former cannot meaningfully exist without the latter because “a Jewish law judge (operating within the framework of a [Beth Din]) cannot be effective unless there are ‘police officers’ capable of enforcing his decisions.” For the Orthodox Jewish community in America, which lacks the authority to establish a police force of its own to compel compliance with Beth Din rulings, “the secular courts in the United States serve the police function of the [Beth Din] by being the enforcement arm of the [Beth Din]’s decisions.”

This is precisely why the decision of the Michigan Supreme Court below could have disastrous consequences for America’s Beth Din system. If that decision is permitted to stand, it will effectively rob the Beth Din system of its de facto enforcement mechanism. Any unscrupulous respondent in a Beth Din proceeding could simply engage in dilatory tactics to postpone the exhaustion of the adjudication process until after the relevant statute of limitations has run. Then, even if the petitioner ultimately prevails, the respondent can refuse to abide by the Beth Din’s decision and instead force the prevailing party to seek permission to proceed in secular court. By the time the prevailing party initiates suit in secular court, the statute of limitations will have long since run. Under the precedent established by the Michigan Supreme Court, the respondent could simply put forward an affirmative defense of untimeliness and have the lawsuit dismissed, thereby escaping the Beth Din’s judgment, and in the process undermining the entirety of the system.

Lest one dismiss this parade of horribles as improbable or unrealistic, it bears noting that an approximation of this very scenario played out in the Beth Din proceedings and litigation below. While there is no indication that Respondents in this case maliciously delayed the conclusion of the Beth Din proceedings, the fact is that Respondents – by willingly agreeing to engage in Beth Din adjudication, and then appealing the decision of the initial panel up through several intermediate panels and ultimately to the highest ecclesiastic-adjudicative body of that Beth Din – were directly responsible for extending the proceedings past the expiration of the relevant statute of limitations. This, in turn, put Respondents in a position to assert the untimeliness defense that resulted in a dismissal of the action, and left Petitioner without any means to enforce a judgment against Respondent that was issued by an adjudicative body to whose jurisdiction Respondent willingly submitted. Given that “proof of concept,” it is not a stretch to imagine a world in which respondents in American Beth Din proceedings routinely adopt a strategy of delay so as to proactively provide themselves with a means of evading a potentially unfavorable rabbinic judgment.

The negative ramifications of this scenario are significant. First, the defanging of the Beth Din system will inevitably have a deterrent effect, incentivizing parties involved in intra-Jewish disputes to ignore their religious obligation to seek rabbinic adjudication to instead file suit in state or federal court. Such a result is strongly in tension with First Amendment values that seek to promote, or at least protect – but in any event, not hinder – the free exercise of one’s faith.

In addition to having the unfortunate and un-American consequence of chilling the free exercise of religion, an impotent Beth Din system will result in a needless increase of the burden upon the nationwide judiciary, and force judges to struggle with cases that implicate complex and potentially unconstitutional entanglement issues. Even worse, Orthodox Jewish organizations such as Petitioner – whose by-laws require strict adherence to Jewish law – will have no choice but to seek justice in the Beth Din system, leaving them vulnerable to any respondent willing to take advantage of the loophole created by the Michigan Supreme Court’s decision below. The Amici do not mean to suggest that these concerns – serious and impactful though they are to both the country’s Orthodox Jewish population and, to a lesser extent, the nation as a whole – alone merit review by this Court. However, given the gravity of the issues enumerated herein, and the fact that, as set forth in the Petition, the Michigan Supreme Court’s opinion below appears to squarely conflict with the precedent of this Court and that of many state courts of last resort (including that of Michigan), the Amici respectfully submit that the scale tips decidedly in favor of granting the Petition.

[1] Editor’s Note: this length of time is not the norm at all Batei Din. The Beth Din of America’s rules and procedures (available at http://s589827416.onlinehome.us/wp-content/uploads/2015/07/Rules.pdf) state that “the Beth Din shall make its award promptly and shall strive to issue every award not later than three months after the date on which the proceedings are closed.” In a case adjudicated this past summer by the Beth Din of Elizabeth in which Rabbi Jachter served as one of the three Dayanim, a decision was reached within a week, to the satisfaction of the disputants.