Judge’s Ruling Seen as Imperiling Rabbinical Courts’ Role

By Anthony Weiss

Published January 15, 2009, issue of January 23, 2009.
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A New York State court decision has called into question the arbitration powers of rabbinical courts, long used by observant Jews to settle civil disputes.

In a decision issued December 18, Judge Bruce Balter of the New York State Supreme Court threw out an arbitration ruling by the Beth Din of America, one of the country’s largest and most respected networks of batei din, or rabbinical courts. In a sharply worded decision, Balter dismissed the Beth Din’s ruling, which involved a labor dispute between a Jewish day school and a teacher, as “totally irrational” and “violative of strong public policy.”

Some legal experts are warning that if Balter’s decision is not overturned on appeal, it could set a precedent with drastic consequences for the rabbinical court system. Such courts are a key venue for settling commercial and personal disputes among observant Jews, particularly in the Orthodox community, which is heavily concentrated in New York State.

“This, in effect, puts the batei din out of the business of deciding cases under Jewish law,” said Marc Stern, acting co-executive director and general counsel of the American Jewish Congress.

The intersection between religious and secular law has been a controversial topic of late in Western countries. In February 2008, Archbishop of Canterbury Rowan Williams triggered an outcry when he argued that the British legal system should accommodate a role for Islamic Shariah courts similar to that played by British batei din. In 2004 and 2005, a proposal by the Canadian province of Ontario to create a set of officially recognized Shariah courts to arbitrate matters such as divorces and settling of estates spawned protests and was ultimately quashed. While in each of these proposals submission to the authority of the Shariah courts would be strictly voluntary, critics charged that such courts would be at odds with Western values such as equal rights for women.

In the United States, however, batei din have a long-standing and uncontroversial role as venues for settling disputes according to traditional Jewish law through voluntary binding arbitration. Parties can agree to go before batei din on matters ranging from divorces to business deals, and the decisions are regularly enforced in secular courts.

In the past few weeks, batei din have taken center stage in a Manhattan real estate dispute over a prominent and valuable apartment building. The warring partners in the deal — who include billionaire Israeli diamond magnate Lev Leviev — had agreed to settle any disputes through a beit din but have been unable to agree on whether to use an Orthodox or a Conservative beit din.

Legal scholars say that in general, federal and state courts have given a wide berth to arbitrators and only alter or overturn arbitration decisions in the event of severe problems, such as corruption, bias or rank incompetence. Intervention by state and federal courts is a particularly delicate matter when the arbitrator bases the decision on religious law, which raises potential church-state issues.

The case in question involves a dispute between a Long Island Jewish day school, the Hebrew Academy of the Five Towns and Rockaway, and one of its teachers, Rabbi Nachum Brisman. Brisman had been teaching at the school for more than a decade when, in 2006, the school fired him on the grounds that his religious philosophy was at odds with that of the school. Brisman argued that the school had granted him tenure and thus couldn’t fire him without substantial compensation. The two sides agreed to settle their case in a beit din.

The beit din ruled that the school had, in fact, granted Brisman tenure and ordered the school to reinstate him with a salary of $100,000 — slightly less, according to Brisman’s lawyer, than what he had been earning before the firing, including regular overtime.

A lawyer for the Hebrew Academy declined to comment for this story on the grounds that the case was still pending resolution.

Brisman then took the case to secular court to have the ruling confirmed, a common step to make arbitration rulings enforceable. The court, however, overturned the beit din’s ruling, saying that the salary was far in excess of the school’s base salary of $54,000, and that it violated the public policy of allowing private schools to hire and fire employees at will.

“The Beth Din’s award was totally irrational; the Beth Din exceeded a specifically enumerated limitation on its authority; and the award is violative of a strong public policy,” Balter wrote in his opinion.

If that ruling stands, it could have broader consequences as a published legal precedent that could be applied by other judges in New York State, say experts, specifically noting its reference to “strong public policy” as the basis for overturning the religious court’s ruling.

The notion of citing “strong public policy” as the rationale for overturning a civil arbitration ruling between two voluntary parties is a misapplication of the term, critics of the ruling say. The term typically applies to things that the parties have no legal right to do, they say — for example, contract themselves into slavery — rather than something like granting lifetime tenure, which is both legal and common.

“Public policy is a common ground to overturn arbitration awards — frequently invoked, although almost  never successfully.  It usually means that the arbitrator did something that the parties themselves had no right to do,” said Alan Rau, a law professor at the University of Texas who specializes in arbitration law. “There’s nothing going on here like that.”

Stern said that by lowering the bar overturning an arbitration ruling on “public policy” grounds, the court ruling could potentially invalidate any beit din decision where Jewish law diverges from secular law.

The decision, however, may not stand.

“I wouldn’t be surprised if it was reversed because it’s so obviously counter to everything we know about arbitration law,” said Rau. “I think it’s a horrible decision.”

Brisman’s lawyer said that his client was likely to appeal the decision.






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