Jewish Law

Recent Developments

Sieger v. Union
of Orthodox Rabbis of the United States
& Canada

New York Supreme Court refuses to dismiss claims against Rabbis participating
in a Rabbinical Court

The text of the
decision follows -

IA PART 28

Justice Schoenfeld SIEGER v. UNION OF ORTHODOX RABBIS OF THE
UNITED STATES AND CANADA, INC. - In this action plaintiff Helen Chayie Sieger asserts fourteen
causes of action against defendants the Union of Orthodox Rabbis of the
United States and Canada, Inc. a/k/a Agudas Horabonim ("UOR"); Hersh
Meir Ginsberg a/k/a Zvi Meir ("Ginsberg
"); Aryeh Ralbag
("Ralbag"); Haim
Kraus ("Kraus"); Elimelech Zalman Lebowitz ("Lebowitz"); Solomon B. Herbst
("Herbst"); and Beth Din Zedek of America - Ein Moshe
("Beth Din").

Plaintiff asserts
the following numbered causes of action against the following defendants:

Intentional Infliction
of Emotional Distress: Ginsberg, Ralbag, Kraus and Lebowitz;

"Absolute"
Negligence : Ginsberg;

Negligent Infliction of
Emotional Distress: Ginsberg, Ralbag, Kraus and Lebowitz
; 4. Same;

Negligent Infliction of
Emotional Distress: UOR;

Fraud : UOR, Ginsberg, Ralbag, Kraus,
and Lebowitz;

Tortious Interference with
Contract: Ginsberg , Ralbag,
Kraus, and Lebowitz;

Defamation: Ginsberg, Ralbag, Kraus, Lebowitz, and Herbst ;

Injurious Falsehoods:
UOR, Ginsberg, Ralbag,
Kraus, and Lebowitz;

Defamation : UOR, Ginsberg, Ralbag, Kraus,
and Lebowitz;

Clergy Malpractice: Herbst;

Breach of Fiduciary
Duties: Herbst and Beth Din;

Breach of Contract: Herbst and Beth Din
;

Aiding and Abetting
Causes of Action 1-10: Herbst and Beth Din.

UOR, Ginsberg, Ralbag, Kraus and Lebowitz (collectively, "the UOR defendants")
now move, pursuant to CPLR 3211(a)(7), to dismiss
the complaint. As indicated above, the eleventh through fourteenth causes of
action are not asserted against movants. For the
reasons set forth herein, the motion is granted as to the causes of action
for negligence (#2), fraud (#6), and injurious falsehood (#9) and is denied
as to the remaining causes of action.

Complaint
Allegations

The complaint
alleges as follows: Plaintiff, an Orthodox Jew, is a member of the Hasidic
community in Brooklyn , NY where
she operates a health care business. A civil divorce action is pending
between plaintiff and her husband, non-party Chaim Sieger, in Supreme Court, Kings County.

To be divorced
under Jewish law, a couple must obtain a Get, which resolves certain terms of
the divorce. On September
2, 1997 plaintiff received a letter from Ginsberg
stating that Chaim Sieger
had requested that plaintiff participate in a "Beth Din"
arbitration, to be conducted by the UOR, to resolve certain issues in the
couple's divorce. Plaintiff refused to submit to the Beth Din
arbitration because, she believed , the UOR
defendants had a reputation for corrupt conduct. Instead, the parties agreed
to a Zabla, another type of arbitration procedure
permitted by Jewish law, in which plaintiff and Chaim
Sieger would both name one arbitrator (a
"borer "), and those two arbitrators would then select a third
arbitrator. The parties would also each select one advocate (a "toein") to represent them in the arbitration. The Zabla would, thus, have been more independent of the UOR.
Plaintiff consented to have the UOR defendants act in an administrative
capacity only in order to organize the Zabla, and
that she did not consent to their participation in an ordinary Beth Din
arbitration. Cplt. ¶36.

Plaintiff named
Rabbi Moshe Tendler (later replaced by Rabbi Ayreh N. Rabinowitz)
to be her arbitrator (borer) in the Zabla, and she
named Rabbi Mendel
Epstein to be her advocate (toein). Tendler and Epstein informed Ginsberg that
plaintiff had consented to accept a Get from Chaim Sieger and resolve the terms of the divorce through the Zabla arbitration. The UOR confirmed plaintiff's election
of the Zabla arbitration in a letter dated October 5, 1997.
Cplt. ¶40.

Chaim Sieger then paid the UOR defendants a $50,00 0 bribe to have them issue a Heter Meah Rabonim (a "Heter") against plaintiff. Cplt
¶¶4, 55. A Heter "is a license
designed exclusively to permit a husband to enter into a polygamous marriage
as a consequence of his wife's mental incapacity or misconduct and upon which
a special get [sometimes termed a "Heter
Get"] is based. Cplt. ¶4. The UOR
defendants were preparing the Heter, dated November 30, 1997,
while still discussing the Zabla arbitration with
plaintiff. On December
26, 1997, Chaim Sieger's
civil divorce attorney notified plaintiff that the UOR had issued the Heter, thereby granting a religious divorce and, thus,
that there was nothing to arbitrate at a Zabla.

The Heter falsely states the following: (1) plaintiff
"is not fit to live with and have sexual relations with," because
while still living with her husband plaintiff did not attend the Mikva, a ritual bath, after menstruation; (2) plaintiff
did not respond to summonses from defendants and, thus, an order of contempt
was issued against her; (3) plaintiff refused to accept a Get from Chaim Sieger unless he gave her
all his possessions and money; (4) plaintiff slandered Chaim
Sieger in public; (5) plaintiff "turned her house
into an ' insane asylum' " and is unable to care for her children; and
(6) plaintiff denied Sieger cohabitation. Cplt. ¶45-57.

Defendants
published the contents and existence of the Heter
to third parties within the Jewish community in New York
City and Israel
even before plaintiff was notified of its existence. Plaintiff learned of the
Heter from other members of her Hasidic community.
In January 1998, Rabbi Rabinowitz questioned
defendant Ralbag about the Heter.
Ralbag told Rabbi Rabinowitz
that the Heter Get was in escrow with the UOR
defendants and that plaintiff was entitled to obtain a copy. The Heter Get contained all of the allegations and
conclusions set forth in the Heter, including the
fraudulent and defamatory accusations against plaintiff .
Cplt. ¶63.

On numerous
occasions defendants refused to give plaintiff a copy of the Heter .
On June 6, 1998,
plaintiff finally received a copy of the Heter from
an Israeli Rabbi.

[Chart Deleted
for Publication]

Discussion
and Disposition

Movants argue that the
complaint should be dismissed on three separate grounds: (1) the First
Amendment to the United States Constitution bars judicial resolution of the
issues raised in the complaint ; (2) everything the
defendants did is privileged because their actions were taken as part of a
rabbinical arbitration, which is quasi-judicial; and (3) the allegations in
the complaint do not state causes of action.

I. The
First Amendment

The idea that
church and state should be separated is deeply embedded in the foundations of
this country. The Free Exercise Clause states , in
part, that "[c]ongress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof". US Constitution, First Amendment. The First Amendment
"embraces two concepts , freedom to believe and
freedom to act. The first is absolute but, in the nature of things, the
second cannot be. Conduct remains subject to regulation for the protection of
society." Cantwell v. Connecticut, 310 US 296,
303-04 (1939).

Thus, there are
times when it is appropriate and necessary for courts to decide matters
"touching upon religious concerns." Avitzur
v. Avitzur, 58 NY2d 108, 111 (1983). In Employment
Division, Department of Human Resources of Oregon v. Smith, 494 US 872
(1989), the court held that "religious freedom" was not a defense
to a charge of possession of peyote, an illegal drug. "[T]he right of
free exercise does not relieve an individual of the obligation to comply with
a 'valid and neutral law of general applicability on the ground that the law
proscribes (or prescribes) conduct that his religion prescribes (or
proscribes).' " Id.
at 879.

Avitzur, supra, held
that courts are not foreclosed from settling a dispute between a husband and
wife pursuant to a Ketubah, the Jewish marriage
contract, despite the religious nature of the Ketubah.
"[G]ranting the religious character of the Ketubah,
it does not necessarily follow that any recognition of its obligations is
foreclosed to the courts." 58 NY2d at 113. Courts are permitted to
resolve disputes that may involve some religious aspects as long as
"neutral principles of law" can be applied. Id. at 114-15.

In the instant
case, plaintiff's claims can, in fact, be resolved by applying neutral
principles of law rather than by applying religious doctrine. Defendants'
argument that the nature of plaintiff's claims is so intertwined with
religious doctrine that a secular court is barred from exercising
jurisdiction is not supported in the cases. In Presbyterian Church of the
United States v. Mary Elizabeth Blue Hill Presbyterian Church, 393 US 440,
449 (1969) (state court could not dispose of property subject to a dispute
between local churches and a national church organization by interpreting
religious doctrine), cited by defendants, the court held that civil courts
may not "resolve ecclesiastical questions." However, the instant
case does not require an interpretation of religious doctrine and practice;
rather, it requires an adjudication of whether defendants violated plaintiff's
secular rights. "Certainly, where clergy members are charged with
intentional torts, liability may be imposed." Gallas
v. Greek Orthodox Archdiocese of North and South America,
154 Misc 2d 494, 499 (Sup Ct, NY County
1991). Plaintiff's complaint alleges common law torts and a breach of
contract, not violations of Jewish law. The complaint's claims will survive
or be dismissed based upon whether they satisfy the criteria imposed by New York secular law.
Religious doctrine will only come into play by providing a context for
understanding the significance to Orthodox Jews of such customs as a Mikva; religious doctrine will not provide the rules of
substantive law.

Defendants also
rely on Klagsbrun v. Va'ad
Harabonim of Greater Monsey, 53 F Supp 2d 732 (DNJ
1999). In that case, put very simply, an Orthodox Jewish man (the
"Husband") sued a council of Rabbis for defamation because they
published a statement accusing him of bigamy after he was civilly divorced,
refused to grant his wife a get, and remarried (he claimed to have received a
special dispensation to do so). The court dismissed the case because
adjudicating it would have required interpreting, inter alia, whether
plaintiff "engaged in bigamy within the meaning of the Orthodox Jewish
faith." Id.
at 742. The instant defendants argue that plaintiff 's
defamation claims similarly depend on interpreting such religious doctrines
as the obligation to go to a "Mikva".

Klagsbrun is
distinguishable on several grounds. There, the Rabbi's publication
, which is entirely reprinted in the opinion, accused the husband, to
the extent that it is defamatory , of various religious transgressions. The
publication at issue here allegedly included such statements as that
plaintiff "turned her house into an 'insane asylum'" and is unable
to care for her children. Such accusations are secular in nature. A court
would have to consult religious doctrine to determine whether a man was a
bigamist within the meaning of the Orthodox Jewish faith, but would not have
to consult religious doctrine to determine whether a woman had turned her
house into an "insane asylum." Furthermore ,
Klagsbrun was simply a defamation action. Id. at 734. The
instant complaint contains numerous causes of action. At its heart is the
accusation that after agreeing to plaintiff's demand for a Zabla, the UOR defendants turned around and took a
$50,000 bribe to issue Chaim Sieger
a Heter Get declaring plaintiff insane and which
was widely published. The Establishment Clause was not intended to shield
bribery and harassment. Interestingly, in Klagsbrun,
the Rabbis published the material at issue after meeting with the husband and
arguing the merits of the dispute. Thus, all that a court could decide was
who was "correct," which would have required inquiring into
religious doctrine. Here, the UOR defendants issued the Heter
Get without a meeting, indeed , without a procedure
(i.e. without due process) of any kind. Plaintiff should, at least in
response to a motion to dismiss, be allowed to proceed to the disclosure
stage to attempt to flesh out her claim that defendant's procedure, with its
drastic effects on plaintiff's personal life, was tainted by bribery and bad
faith. Also, issuance of the Heter Get implied that
the UOR defendants had followed legitimate procedure in determining that
plaintiff was mentally incapacitated. In Klagsbrun,
the husband was challenging defendants' conclusions, not their procedure.

Of final note, in
Klagsbrun the plaintiff argued that the court would
only have to determine issues of fact. Id.
at 742. The court agreed, but said that "resolution of the factual
disputes would require this court to inquire into religious doctrine and practice ." Ibid. Perhaps a better approach would
have been to declare that whether the husband (who was not a secular
"bigamist") was a "bigamist" under religious law was a
question of opinion, which is not actionable , and
the resolution of which would require religious inquiry. Here, the question
of whether the Heter Get was the result of $50,000
in bribe money transcends religious boundaries.

II . Privilege

Defendants
contend that a Heter is a quasi-judicial proceeding
and that statements made therein are, thus, absolutely privileged. "The
doctrine of immunity ... is based upon considerations of public policy and is
intended to secure the unembarrassed and efficient administration of justice
and public affairs." 43A NY Jur 2d, Defamation and Privacy,

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