The Time has Come for Uniform Beth Din Rules and Procedures — Part II
Daniel Retter, Esq.
(or how to curb Beth Din abuse)
Without referring to historical Batei Din in America, we must deal with the reality of the Beth Din in America in general, and New York in particular. There are today two broad categories of Jewish courts.
One is a community “not for profit” Beth Din as is found in various kehillot throughout New York City and the metropolitan areas. They and supported, by financially and psychologically, by the members and rabbinate of that particular kehilla. The judges (dayyanim) constitute the Beth Din panel are paid a salary by the congregation. Usually, these Batei Din restrict their ADR to their own members.
The other is a private for “profit” Beth Din, which is a self-created institution by an entrepreneurial “chief” rabbi who employs various rabbis on a permanent or rotating basis to constitute “his” Beth Din. Payment is by the litigants of a per diem basis. This Beth Din will adjudicate disputes for the general public.
Both of these Batei Din share certain common features. Chief among them is that they are not subject to appellate review (except for Article violations), either in the secular or religious courts, and are thus not accountable to a higher authority. Secondly, their ability to compel a defendant to sign a Shtar Birurin and be bound by the Beth Din’s decision, and thus render the Beth Din decision as powerful as the secular court’s decision, is manifested through the threat of the issuance of the Seruv.
As extraordinary feature which is not common to these two types of Batei Din, is that in the private Beth Din, a party may utilize a Rabbinical attorney (To’en) who has previously, or is even concurrently, sitting on a Beth Din panel with one or more of the same dayanim, although on a different case. The charge of a conflict of interest by the losing party because it is not able to find such a “well connected” To’en, is obviously not to be lightly taken in such an instance.
So long as both of these types of Batei Din are respected and recognized as authoritative by the Orthodox Jewish community, and their decisions are enforceable by the secular courts, the reality of these Batei Din to issue an effective and meaningful Seruv is very potent and real.
Therefore, the concept behind the enactment of a set of uniform rules is that if a universally recognized and impartial group of rabbis and laymen should enact uniform rules for Beth Din procedures, and thus endorse a Beth Din which not only subscribes to these procedures but permits a continuous supervision of the Beth Din’s conduct, then a Beth Din which does not subscribe to these rules, and is thus not endorsed by this panel, will not be accorded the respect it needs in order to issue an effective Seruv which will compel the parties to utilize the Beth Din’s services.
If a particular Beth Din is not endorsed by this blue ribbon panel, any Seruv issued by a non-endorsed Beth Din would be “nullified” by the panel, and nor religious newspaper would publish the Seruv, nor would any shul permit the posting of the Gerug, and thus its effect would be a minimal. The recipient of the Hazmana would feel no pressure to attend such a Beth Din tribunal, and this would deprive the Beth Din of its raison d’être.
In addition, a series of uniform rules would serve to educate in advance the potential litigant, whether plaintiff or defendant, and they would know what to expect in a Beth Din. As “educated consumers” they would, by their participation in the process, help maintain the integrity of this very process.
Therefore, a universally respected panel of rabbis and laymen should immediately convene under a self-imposed deadline to create a permanent standing “Central Beth Din Registry” (CBDR).
CBDR should be funded by the Batei Din themselves. It should enact a series of uniform minimum rules and regulations which would govern every Orthodox Beth Din in America, whether Hasidic or Modern, to the end that every Orthodox Beth Din would join this Registry and follow its rules, or failing that, find that its moral and religion authority by the Orthodox Jewish Community.
The failure of a Beth Din to join this Central Beth Din Registry will de facto constitute a suspect and rump Beth Din, and its decisions would be viewed with a jaundiced eye by the secular courts, as well as the Orthodox Jewish community.
No one can prevent such a non-endorsed Beth Din from issuing its Seruv or trying a case. However, its Seruv will by and large be ineffective, and such a non-endorsed Beth Din’s ability to compel arbitration will be severely limited.
The procedural rules that follow are so basic to both Halachic and secular law that failure by a Beth Din to follow these rules will simply be understood by all concerned to mean that Beth Din does not live up to its own Halachic mandates, or the laws of New York, and such a Beth Din should not be accepted by the Orthodox Jewish community.
Of course, the following rules are intended as suggestions only and should give the panel “food for thought”.
Uniform minimum procedural rules and regulations of the Orthodox Jewish Beth Din:
- A uniform Hazmana form shall be utilized by every member Beth Din.
a. No Hazmana may be sent to any part without a minimum “bill of particulars” detailing the nature of the complaint, including dates and places of the charges, so that the potential defendant will have an opportunity to know the substance of the complaint immediately.
b. Failure to issue a detailed Hazmana will render the Hazmana invalid. It need not be responded to, other than by a mandated Special Appearance by the defendant objecting to the form of the Hazmana.
c. This Special Appearance will not bind or confer jurisdiction upon the answering party.
2. Any Hazmana which complies with Article One shall be a valid Hazmana.
In conformance with the above, the recipient of a Hazmana shall have a period of 20 days to transfer the dispute to any other CBDR endorsed Beth Din, and the plaintiff shall be obliged to submit the case to such Beth Din as the defendant requests. Provided, however, that such alternate Beth Din must be located within the geographical area of both parties.
3. There shall be no discrimination against any litigant because of gender.
4. No dayyan may be a Rabbinical Attorney (To’en).
5. Every Beth Din proceeding shall be either recorded or transcribed by a court reporter, with the cost to be borne by both parties.
6. There shall be an absolute prohibition against any ex-parte communication either by the parties themselves and their Rabbinical Attorneys, or others on their behalf.
In the event of such ex-parte communication, the dayyan who has had such communication must disclose same to the other litigant, and the litigant shall have the right to seek sanctions against the offending party, including the dismissal with prejudice of the case, and shall further have the right to disqualify the Beth Din, and/or the individual dayyan from trying its case.
7. Default Procedures: If a party fails to attend scheduled Hearing, the Beth Din shall notify the non-appearing party in writing that continuing failure to attend shall result in the Beth Din scheduling a Hearing in absentia, and notifying the party of the date and place of the next Hearing. The Beth Din shall then convene another Hearing with or without the party in attendance.
a. Provided, however, that if a non-appearing party requests reasonable alternate Hearing date, the Beth Din shall be obliged to accommodate both parties in scheduling one or more acceptable duties for the Hearing. If the parties cannot in good faith agree on a scheduled date(s), then the Beth Din shall, upon at least 5 days’ written notice, schedule a date(s) which, in the Beth Din’s opinion, is a reasonable date for the Hearing, and both parties shall be bound by said Hearing date.
b. Generally, adjournment for cause shall be granted upon advance notice in writing detailing the reason(s) for the unavailability of the party requesting the adjournment.
8. The Beth Din shall schedule Hearings with a commencement and termination time that shall be strictly enforced against the parties and the Beth Din.
9. There shall be a uniform Shtar Birurin form which shall incorporate these uniform rules as part of the text of the Shtar Birurin, and shall be signed by all parties.
10. Every dayyan shall have received semicha (ordination) form a CBDR-recognized institution or rabbi, and may not preside on a panel unless his credentials have been approved by the central Beth Din Registry.
11. No Seruv may be issued without the consent of the Central Beth Din Registry.
In any proceeding where a Beth Din wishes to issue a Seruv, the proposed “Seruvee” shall have the right to be notified in writing in advance and appear before the CBDR or attempt to avoid the issuance of a Seruv.
12. The Beth Din shall permit an inspection and monitoring of these hearings, and of its books and records, by representatives of the Central Beth Din Registry to insure compliance with these rules.
13. Any member of the public may file a complaint against any Beth Din or individual dayyan with the CBDR which shall investigate same in a confidential manner.
14. The CBDR shall, for cause and with proper notice to all parties in advance and after investigations and hearings, have the power to temporarily suspend or permanently revoke the authority of a particular dayyan or a Beth Din from membership in the CBDR.
15. The CBDR shall publish a set of precedent decisions which may be used in Beth Din litigation by either party.
16. A decision must be issued within 30 days of the last hearing.
17. Prior to a decision being confirmed by a secular court, the decision must be confirmed by the CBDR. Any request by a losing party to vacate shall be heard first by the CBDR. If the CBDR vacates a decision under halachic or CPLR reasons, the decision shall not be confirmable by the secular courts. However, if the decision is confirmed by the CBDR, the losing party shall retain the right to go to the secular courts under the CPLR.
The above rules are not exhaustive, and may even be too ambitious, but attention to these uniform rules will go a long way to instill confidence in the Beth Din process.
This article will only bear fruit if it galvanizes the rabbinic and lay leadership to demand that the Beth Din process be reviewed and, where “broken” corrected.
If the above is not acted upon, in some form at least, the erosion of respect for the Beth Din process will continue, and that would be a tragedy. On the other hand, if the leadership seizes this opportunity to convene such a panel, with a six month deadline to issue its recommendation, then we will have reached a watershed in solving civil strife within the Orthodox Jewish community.
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