Wednesday, May 14, 2008

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

Part VIII was here.

Here we conclude the transcript of R' Shirman's verdict. I must say that in the course of translating this I have found observations and rulings which I would question, but I must also say that I am no longer bothered by the strength of the court's language, including it's term Apikorus. I can now see why they would be motivated to use that language, even if I don't agree.

I would also love to hear a justification for the false signatures on conversion documents.

Section 15: טעונים פורמלים פרוצדוראליים אינם גוברים על דברים מהותיים שסותרים להם

R’ Shirman returns here to the procedural issue cited in the beginning of Section 11:
In an earlier litigation, 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 majority of the court in that litigation agreed with R’ Daichovsky and recognized the conversion, ignoring the challenges to the mitzvah-acceptance of the convert.

R’ Shirman argues that this decision runs counter to the 1984 declaration cited above at the end of Section 14 from R’ Kanaeivsky, R’ Shlomo Zalman Auerbach, R’ Schach and R’ Elyashiv, instructing marriage registrars to review conversions. If registrars should be able to review conversions, then expert courts certainly should be able to do so.

R’ Shirman further argues that within Torah it is unheard of to allow formal procedures (פורמליות פרוצדורליות) to trump substantive issues.

R’ Shirman supports this, again, with R’ Chaim Pilaggi’s comments (cited above in Section 13) regarding the ability of a court to review decisions of another court.

R’ Shirman notes that the court in the earlier litigation also based its view on the rule that certificates from the conversion courts must be recognized, and argues against that procedural position based, again, on the 1984 declaration cited above.

R’ Shirman turns to his colleague, R’ Bar Shalom, who supported R’ Daichovsky, to ask for the halachic basis for taking the procedural position over the halachic doubts regarding a conversion.

Section 16: אין להשען על דעת הרוב שעברה שינויים ותהפוכות
Note: I think I have all of the voices right in the following section, in which R’ Shirman cites an opinion from the third judge in the earlier Rechovot litigation mentioned above in Section 11 - but the text is unclear about where the third judge’s opinion ends, and R’ Shirman’s notes begin. I have done my best with this.

R’ Shirman notes that the majority decision in the earlier litigation did not remain with "formal authority" as its justification, but instead added the idea of R’ Daichovsky (Section 10 above) that acceptance of mitzvot is gauged at the moment of conversion (and not based on later behavior).

As was noted in an additional opinion sent to Rishon l’Tzion Rav Amar by the third judge, to explain why he had decided to vote “I don’t know” rather than take a stance in the case:

The majority in that earlier litigation came to its conclusion after first being of radically different views. One view wished to uphold the rejection of the conversion, the second view accepted the conversion with the justification that conversions cannot be annulled, and the third view argued that the local court had no authority to revoke the conversion, but that the case should go before the Chief Rabbinate for their verdict. The holder of the second view then joined with the holder of the third view, and together they established that until the chief rabbinate nullifies the conversion, the conversion stands.

The writer then asked what might be the halachic basis for removing conversion from the jurisdiction of an existing court, when the courts had always handled conversion and conversion is a matter of the courts, and handing it over to the office of the Chief Rabbinate.

R’ Isirer of Rechovot also challenged the majority view on this basis, and added that the three views among the judges do not constitute a consolidated verdict, but are actually three different views, and therefore two judges should be added to the court.

The writer then noted that this means the original decision was not at all clear, and that there was no dialogue among the judges, which is required in Shulchan Aruch Choshen Mishpat 18:1 "וישאו ויתנו בדבר" and that the Beit Yosef (Choshen Mishpat 13) rules that we do not follow a majority unless the majority is reached after debate among them.

The writer of this opinion then asked how one could say that the couple should be able to marry pending the decision of the Chief Rabbinate; what if, as R’ Isirer asked, the Chief Rabbinate would then annul the conversion?

R’ Amar rejected these challenges without addressing the substantive issues raised in the letter, and said we rely on the majority.

The majority then recanted their original decision and wrote that no one could nullify a conversion until the original converting body would revoke it.

The writer contended that this verdict lacks all halachic basis, violates precedent, and did not involve any discussion among the members of the beit din, since the majority judges did not respond to the minority’s objections.

After an extended period the court issued a new decision, in which they no longer relied on the majority view of R’ Daichovsky and R’ Bar Shalom that the court which overturned the conversion had no jurisdiction, but instead relied on the view of R’ Daichovsky [cited above, that we only work with the convert’s intent at the moment of conversion], and R’ Bar Shalom joined him in this, again without debate among the judges. The writer noted that he again did not receive a response to his challenges.

This is why the third judge decided to rule “I don’t know” - because without any explanation from the other two judges, he couldn’t claim to understand their view. Therefore, two judges should be added, to obtain clarification [as is done when the judges cannot come to a decision].
Rav Amar stated that the third judge did count toward the decision because he had expressed a view on the case, but the third judge argued that without any understanding of the position of the others, and without debate, and with all of the changes in their positions, he could not say anything other than “I don’t know.”

R’ Shirman then recaps some earlier points related to our case:
· That the rule of not re-opening another court’s decision does not apply here, because that rule, as explained by the Rambam, relies on the assumption that the earlier court was expert. The whole challenge of R’ Attiyeh was that the earlier court was not expert.
· As far as the formal claim that the municipal court lacks authority to overturn the conversion, that is not relevant, because the original court’s authority is void due to their ineligibility as a court.

R’ Shirman adds that the original ruling from R’ Attiyeh did not actually disqualify the woman’s conversion or her status as a Jew, and it did not nullify her children’s status as Jews. Section 12 of the ruling specified that the woman may pursue a further judgment regarding her status; the court’s ruling was only insofar as the get which had been requested. R’ Attiyeh was only requesting that they be registered as ineligible to marry until their conversion could be examined anew by a proper court, because of the flaws which had been identified in the original .

R’ Shirman then notes that the plaintiff’s sources about accepting a conversion where the convert sinned afterward are not relevant here, because they assume that the initial conversion was done properly.

R’ Shirman adds that the Shulchan Aruch’s statement accepting a conversion where the court had not properly investigated the convert’s intent is not relevant here either, for that refers only to a court that has not examined the convert’s intent. Where the intent does become clear, and we see that there was no acceptance of mitzvot, or the court itself has been disqualified, the conversion is nullified.

Based on all of the above, there is room for doubt regarding the conversion of the litigant and her three children. The certificate of conversion should be nullified, and the woman and her children should be listed in the register of those who are ineligible to wed.

The court sees no reason, though, to include the (ex-)husband in the registry of those who are ineligible to wed.


  1. So, nu, what do you make of the RCA's letter in response to this?

    The whole thing is such a muddle...

  2. I am missing too much information to have a concrete opinion.

    The במותב תלתא documents in which I have participated have not been purely administrative; signing those documents meant that I was present and involved with the conversion.

    On the other hand, I have not seen proof that R' Druckman did not require kabbalat mitzvot. I have also not seen adequate support for disqualifying a judge on the basis of his non-requirement of full kabbalat mitzvot.

    The lifnei iver and non-mitzvah arguments do not seem iron-clad either, to say the least.

    Stay tuned.

  3. Hi

    Can you please post (or modify this post) with a reference to the whole transcript i.e. click here for ptI, here for ptII etc, etc.

    Also, what is the justification to say someone is an apikoros? IIRC from the gmorathat implies he can be even killed (מורידין ולא מעלין). Unless I'm missing something and there is a term "bais din apikorsim" that would mean a renegade bais din or something to that tune, I think it's an unjustifiable declaration.

    BTW, as far as forgeries go... There is a HUGE corruption in this field. Yossi Efrati does giyurs on an assembly line, I have personal knowledge of this.

  4. יהוא-
    I have now posted a single post with the whole transcript.

    In my preface to that post I also address the "apikorus" justification. He seems to think that if a judge consistently and knowingly adopts a minority view, flouting the majority, that makes him an "apikorus." This is questionable, but that's the view.