Tuesday, May 13, 2008

Transcript of the Verdict of R' Shirman's Court, Part VII

Part VI was here.

The full Hebrew text is available on-line at Hirhurim here, and R' Doniel Eidensohn has posted relevant material here. Please let me know of other relevant halachic notes found on-line.

In this section, R' Shirman deals with the question of one court's ability, from halachic and procedural standpoints, to re-visit the decision of another court.

Section 11: דחית עמדת הרב ש. דיכובסקי והרב ע. בר שלום שבית דין רבני אינו מוסמך לבטל גיור שנערך על ידי בית דין מיוחד

The plaintiff claims that the local beit din in deciding to list the woman and her children in the registry for people who cannot marry, for a court lacks the standing to overturn the conversion of another court. This is based on a majority ruling from R’ Daichovsky and R’ Bar Shalom in a case in which a Rechovot court tried to overturn a conversion.

R’ Daichovsky cited a decision from R’ Bakshi-Doron stating that marriage registrars will accept copies of conversion certificates from licensed rabbinic courts and the courts of conversion, and that all other conversions must receive approval of rabbinic courts or the department of the Chief Rabbinate dealing with this issue. This indicates that the two court systems – rabbinic and conversion-specific – function independently, and one cannot nullify a decision of the other.

The plaintiff further cited the principle בית דין אחר בית דין אחר לא דייקי, that one court does not investigate the actions of another.

R’ Shirman notes that this issue is relevant far beyond the actions of R’ Attiyeh’s court, and would affect past decisions involving “many tens and perhaps hundreds” of conversions in which courts have found flaws in the conversion process, tied to the central factor of accepting mitzvot, and have on that basis overturned or cast doubt upon the conversions. The courts in those cases have not been concerned about the cited procedural and halachic challenges to their authority.

Section 12: במעשה בית דין ואישור גיור לא נאמר הכלל של "בית דין בתר בית דין לא דייקי"

The principle of non-investigation comes from Bava Batra 132, and is brought as halachah in the Shach Choshen Mishpat 19:2. However, R’ Shirman contends, based on an earlier ruling of his own court, that the principle that one court does not investigate the actions of another court does not apply to conversion today.

R’ Shirman cites the 1984 ruling (already cited in Section 10) from R’ Yaakov Kanaeivsky (the Steipler), R’ Shlomo Zalman Auerbach, R’ Shach and R’ Elyashiv, in which they warned that conversion without Torah and mitzvah acceptance is invalid even ex post facto, and should not be accepted by marriage registrars. R’ Shirman notes that this ruling does not distinguish between courts of different locales or levels of name recognition, and he says that if registrars must investigate, then courts certainly must investigate.

To back up his ruling that a court may investigate an earlier court’s conversions, R’ Shirman cites an argument from his court’s earlier ruling from R’ Isirer, arguing that since the overturning of the conversion is based on information to which the original converting court did not have access, the rule of non-investigation does not apply.

R’ Shirman bases this assertion on a statement of the Rambam. The Rambam recorded the rule of non-investigation (Hilchot Edut 6:5), and added that this principle is based on the assumption (חזקה) that the original court was expert and would not err. In presenting that logic, the Rambam opens up the possibility that new information would warrant re-opening a case, since the חזקה of expertise would no longer be relevant.

R’ Shirman cites a similar conclusion from R’ Chaim Pilaggi’s סמיכה לחיים.

R’ Shirman contends that if a woman declares acceptance of mitzvot before a Beit Din, saying that she doesn’t turn on electric lights on Shabbat although she does not do kiddush or havdalah, and she is told to get married (halachically) immediately after the conversion, and then four months later she acknowledges in a Beit Din that she turns on lights on Shabbat, and justifies her actions by saying observance is difficult, and her husband says there has been no meaningful (משמעותי) change since the conversion aside from niddah observance, this is information that, had it been known to the converting court, would have caused the court to refuse her conversion in the first place. This is considered new, relevant, information to justify re-opening the case. The court is indeed obligated to re-open such a case, to prevent stumbling blocks for individuals and for the community.

The issue of re-opening an earlier court's decision continues in Part VIII, here.

No comments:

Post a Comment