Author Archives for Shaul Elnadav

Settlement reached in case involving Portrait of Wally, a painting stolen from Austrian Jewish dealer in 1930′s

It’s good to see that some property rights of Holocaust victims are not deemed preempted by foreign policy agreements. According to a press release by the law firm Herrick, a settlement was reached in the case involving Portrait of Wally, a painting by Egon Schiele that was stolen in the late 1930′s from Lea Bondi Jaray, a Jewish art dealer in Vienna. The painting was later acquired by the Leopold Museum in Vienna, but was made subject to court proceedings in New York in 1997 when it was loaned to the Museum of Modern Art.

According to the press release, the terms of the settlement are as follows:

(a) the Leopold Museum pays the Estate $19 Million;

(b) the Estate releases its claim to the Painting;

(c) the United States Government dismisses the civil forfeiture action it brought against the Leopold Museum and releases the Painting to the Leopold Museum;

(d) the Leopold Museum will permanently display signage next to the Painting at the Leopold Museum, and at all future displays of the Painting of any kind that the Leopold Museum authorizes or allows anywhere in the world, that sets forth the true provenance of the Painting, including Lea Bondi Jaray’s prior ownership of the Painting and its theft from her by a Nazi agent before she fled to London in 1939; and

(e) before it is transported to the Leopold Museum in Vienna, the Painting will be publicly exhibited at the Museum of Jewish Heritage — A Living Memorial to the Holocaust, in New York, beginning with a ceremony commemorating the legacy of Lea Bondi Jaray and the successful resolution of the lawsuit.

Jewish opposition to the Holocaust Insurance Accountability Act of 2010

When is a contract not a contract?

JTA reports today that six Jewish organizations have signed a letter opposing the Holocaust Insurance Accountability Act of 2010.

The American Jewish Committee, the Anti-Defamation League, B’nai B’rith International, the Conference on Jewish Material Claims Against Germany, the World Jewish Congress and the World Jewish Restitution Organization condemned the Holocaust Insurance Accountability Act of 2010 in a recent letter to Rep. John Conyers (D-Mich.), chairman of the House of Representatives Judiciary Committee.

The bill would allow Holocaust survivors to sue insurance companies in U.S. courts for unpaid Holocaust-era policies. Claimants previously had to go through the International Commission on Holocaust Era Insurance Claims, which shut down in 2007.

A number of Florida-based Holocaust survivor groups, backed by some state lawmakers and insurance commissioners, say ICHEIC was fatally flawed, unduly deferential to the insurers and paid out only a tiny percentage of liable claims. ICHEIC officials have said that the process was as pliant as the law would allow.

The letter from the Jewish groups said that the bill would harm negotiations with Germany, which contributes hundreds of millions of dollars for survivors living in poverty, by reopening previously settled agreements.

“Many survivors wouldn’t receive anything in their lifetime” if the bill were to pass, said Roman Kent, a representative for the Claims Conference. “If I go to court, it will take 10 to 15 years to get anything. So what practical effect would the bill have?”

Proponents of the bill say that Germany’s commitment to reparation payouts is ironclad in the law and would not be affected by reopening the ICHEIC process.

The full JTA article can be read here.

Elena Kagan and Arlen Specter on Holocaust era insurance claims

Solicitor General Elena Kagan says she doesn’t want to count her chickens. Senator Arlen Specter says he is one of her chickens.

The issue was how Kagan, if confirmed to the Supreme Court, would vote on a petition requesting that the Court hear an appeal from a decision by the Second Circuit which held that Holocaust era insurance lawsuits were preempted by Executive branch foreign policy. Specter is clearly of the opinion that Holocaust survivors should have their day in court. Kagan ducked the question, claiming that as Solicitor General, her job would likely entail opposing a petition for certiorari by the Supreme Court in the very case discussed by Specter. Video of the exchange is below.

Legislation has been introduced in the House that would allow lawsuits against insurance companies based on state law to go forward (see H.R. 4596, “Holocaust Insurance Accountability Act of 2010″). Our previous posts on the subject can be read here and here.

Hat tip: HSF

Child’s religious exposure in divorce case

A few interesting cases involving child custody and religion have recently been decided in Chicago. From Girl’s religion at issue in divorce war, Chicago Tribune, Feb. 17, 2010:

Rebecca Reyes opened an e-mail from her estranged husband in November to learn to her shock that he had their 3-year-old daughter baptized in the Catholic Church even though she said the couple, in happier times, had agreed to raise her in the Jewish faith.

What happened over the next few months brought the couple’s private battles into the open and raises questions about how far the court system can — or should — go in dictating what faith separated parents teach their children. After the unannounced baptism, a Cook County Circuit Court judge took the unusual step of temporarily barring Reyes’ husband, Joseph, from exposing their child to any religion other than Judaism.

But Joseph Reyes then allegedly defied the order by taking his daughter to Mass at Holy Name Cathedral — with a television news crew in tow.

The wife’s lawyers blasted Joseph Reyes’ defiance and demanded he be held in criminal contempt, a charge that carries a maximum punishment of six months in jail if convicted.

…

While many divorce proceedings involving interfaith couples devolve into bitter feuds over religion, Emily Buss, a law professor at the University of Chicago, called the order to temporarily limit the child to Judaism “striking.”

“The idea is we change religious views — that is what religious freedom includes,” Buss said. “Even if (one) parent has more authority in the form of more custody, the other parent can (usually) … still expose the child to his or her religion even if it was not the religious practices within the family when it was intact.”

More background can be read on the Chicago Jewish News website.

The father, Joseph Reyes, reportedly told a reporter for CBS2 Chicago: “I am taking her to hear the teachings of perhaps the most prominent Jewish rabbi in the history of this great planet of ours. I can’t think of anything more Jewish than that.” Not to argue with such glibness or anything, but one cannot logically be rabbi, mesit and messiah.

In April, another judge lifted the restraining order, allowing the father to take his daughter to church during his regularly scheduled visitation. The judge also ruled that the father would have visitation for Christmas and Easter. The mother would always have the child on Rosh Hashannah, Yom Kippur and Passover. I couldn’t tell from the news reports whether the criminal contempt charges were ultimately dropped as well.

Rubashkin acquitted of child labor charges

As has been widely reported, Sholom Rubashkin was found not guilty of all 67 charges of child labor violations. The New York Times article adds:

The verdict brought rare good news for Mr. Rubashkin since the raid at the plant in Postville on May 12, 2008, when federal agents arrested 389 illegal immigrants, most from Guatemala. The operation became an emblem of the high-profile immigration enforcement strategy under President George W. Bush.

In November, Mr. Rubashkin was convicted in federal court in Iowa of 86 counts of bank fraud in connection with loans to Agriprocessors. Federal prosecutors are seeking a 25-year sentence on those charges. Sentencing is scheduled for June 22.

CLE Announcement: “Dispute Resolutions done the Kosher Way: A Comparison between Jewish Halacha and US Civil Law”

The Bais HaVaad, Hudson Valley Bank & CUNY Law School have joined to coordinate a fantastic CLE Seminar on June 10th in NY.

“Dispute Resolutions done the Kosher Way: A Comparison between Jewish Halacha and US Civil Law”

Speakers: Rabbi Dovid Grossman, & Rabbi A. Marburger, Bais Havaad Organization

Hon. Judge David Schmidt,

Topics Include:
Jewish Law: A way of life, not a way to settle a dispute
Civil Laws that are based on the Judeo ethic and moral obligations
Legal Diagnostics
The Authority of Bais Din to Judge
Initial Interplay between Civil Court and Bais Din
Conflicts between Halacha and Civil Law
Theories of governmental authority
Judicial Laws and Legislative Laws

8:00 a.m. – 8:30 a.m. Networking Breakfast / Registration
8:30 a.m. – 10:30 a.m. Seminar, Q & A

LOCATION:
1 Grand Central Place
60 East 42nd Street (formerly the Lincoln Building) New York, NY 10016
Ground Floor Conference Center

Please note CLE Seminars are for practicing attorneys only!

Registration is required as seating is limited- No Walk-ins. First 75 RSVPS

Obligations of a guarantor in halacha

Rabbi Max Sutton, Rosh Bet Din Aram Soba in Jerusalem, published an article in the May 2010 issue of Community on the halachot of loan guarantors and sureties.  Rabbi Sutton writes:

There are two basic types of guarantee arrangements. The first is known as an ordinary guarantor (arev). An ordinary guarantor is a third party that agrees to be responsible for a debt only if the principal debtor defaults. Hence, the creditor is required to attempt to collect from the debtor, and only after he fails to pay is the guarantor held responsible. The second type of a guarantee relationship is known as a surety-ship (arev kablan). This arrangement enables the creditor to demand payment from either the debtor or the surety, whichever he chooses. The creditor need not exhaust any legal remedies against the principal debtor before holding the surety responsible for payment. Even if the debtor can make payment, the creditor has the right to collect from a surety the moment the debt is due. Once the debt is paid by either a guarantor or a surety, they may then pursue all legal remedies to collect from the debtor the money they laid out to the creditor on his behalf.

The article presents three cases which illustrate the following difficulties:

  1. Where the creditor made multiple loans, only some of which were guaranteed, how are partial payments by the debtor allocated between the loans?
  2. Where there are multiple guarantors for a single loan, how are partial payments by the debtor allocated between the remaining obligations of the guarantors?
  3. Are oral guarantees enforceable?

After discussing the issues, Rabbi Sutton concludes by summarizing the Bet Din’s ruling on each case.  The full article can be read here.

Agudath Israel opposes the proposed NYS organ donation bill

I mentioned in the previous post that religious organizations would be lobbying hard against the proposed New York State legislation that would presume that applicants for driver licenses consent to organ donation unless they affirmatively opt out of the program.

Apparently Agudath Israel has already circulated a memo to members of the New York State legislature. According to Agudah’s press release (here and here):

While Agudath Israel of America acknowledges the shortage of organs for transplant and the fact that Jewish religious authorities may permit organ donation in certain cases, it considers “highly presumptuous” – in fact, “simply false – the assumption “that the hundreds of thousands of Orthodox Jews across New York State would be in favor of allowing their organs to be harvested and transplanted,” in the words of a memorandum sent by Agudath Israel representatives to all the members of the New York State legislature.

Agudath Israel notes further that “similar presumptions about other ethnic and faith groups across the state would be equally false. The plain truth is that many people, for religious or other reasons, would not want their all of their organs automatically harvested. To presume consent where there is no consent is to make a mockery of these people’s rights.”

…

“Presumed consent,” says Agudath Israel associate general counsel Rabbi Mordechai Biser, “would effectively abandon the entire concept of personal autonomy—the principle underlying all statutory and common law regarding health care proxies, living wills, and the like.”

The principle, he continues, “that individuals have the right to direct what should happen to their own bodies after death would be replaced with the assumption that the state has the right to use a person’s body as it wishes unless the person actively protested such use during his or her lifetime.

“To put it simply: A person’s body should not belong to the state to use as it sees fit simply because he neglected to insist otherwise when alive.”

The Agudath Israel memorandum urges the legislature to “search for other ways of increasing organ donation without trampling on the personal autonomy and religious liberties of countless New Yorkers.”

Proposed legislation in New York to presume consent to organ donation

Currently in New York a person can affirmatively choose to be an organ donor. This is typically done when applying for a New York State driver license or by checking and signing the box on the reverse side of a driver license.

New York State assemblyman Richard Brodsky has introduced legislation that would reverse the enrollment process. Under the proposed legislation (A09865), an applicant for a driver license is automatically enrolled as an organ donor unless he or she opts out of the program. Furthermore, if an applicant has not opted out of the organ donation program, his or her family members or health care proxy cannot override the presumed consent without showing that the “consent” was later revoked.

The sponsor’s memo states:

According to the New York State Organ Donor Network, New York State currently has the lowest donor Designation Rate (DDR) in the United States. In total, only 11% of eligible donors are currently enrolled in The New York State Organ and Tissue Registry.

This number starkly contrasts to the national average of 43%. In some states, such as Utah and Iowa, the DDR ranges between 65-70%. This bill will create a new model for organ and tissue donation that is aimed at significantly increasing that percentage while taking into consideration all of the individual rights of persons to decline enrollment into the program.

The bill does not change Public Health Law 4301(5)(c) which states that an organ donee may not accept the gift if the donee has reason to believe that an anatomical gift is contrary to the decedent’s religious or moral beliefs. But this is small comfort to those with moral or religious objections to organ donation. By not opting out, the decedent is presumed to have consented, and “reason to believe” that the gift is contrary to the decedent’s religious or moral beliefs seems to be a pretty slippery concept.

The proposed bill also does not change the manner in which an anatomical gift can be revoked. So if, for example, one did not opt out of organ donation on the driver license application form, the presumed consent can be revoked by a “signed card or document found on his person or in his effects.” A revocation can be added to a health care proxy, but not everyone signs a health care proxy, even though they should.

The New York Times Room for Debate blog had several comments for and against the legislation. Elaine Berg, president and chief executive officer of the New York Organ Donor Network, was in favor of the bill (no surprise given her job description), yet wrote:

Importantly though, in order to be considered, it is imperative that any system of presumed consent have robust safeguards to protect individual rights. There must be guarantees that every citizen is well-informed regarding their right to opt out, and the procedure to do so would have to be simple, accessible and barrier-free.

Multilingual education in communities lacking access to computers or English media would have to take place. There would need to be multiple types of outlets for opting out, including at social service agencies, schools, D.M.V.’s, places of worship and online. We would have to pay special attention to communities who may have broad concerns about donation.

Religious organizations will no doubt strenuously lobby against the bill.

Arkaos: Litigation in non-Jewish courts

In an earlier post I discussed a teshuvah of Rav Ovadiah Yosef as to whether a non-yoresh (e.g., a daughter if the decedent leaves a son and a daughter) may claim a portion of an estate in court under local law. After summarizing Rav Ovadiah Yosef’s ruling that dina demalchuta dina does not apply, I wrote the following:

The remainder of the teshuvah addresses the serious prohibition of litigating disputes in non-Jewish courts (See Rambam, Yad Hachazakah, Sanhedrin 26:7). Rav Ovadiah Yosef writes that this applies even if the results under halacha and civil law are the same, and even if the decedent instructed his children to resolve the estate under a civil court’s jurisdiction. In a lengthy footnote, he writes that it is also prohibited to appear before a Jewish judge who will apply secular law – in fact, in such cases the disregard for the Torah is even more pronounced.

One reader objected that although I provided a citation to the Rambam, I did not quote him in context. So here it is in full, with my approximate translation, and a few comments:

כל הדן בדייני עכו”ם ובערכאות שלהן אע”פ שהיו דיניהם כדיני ישראל הרי זה רשע וכאילו חרף וגדף והרים יד בתורת משה רבינו שנאמר ואלה המשפטים אשר תשים לפניהם לפניהם ולא לפני עכו”ם לפניהם ולא לפני הדיוטות. היתה יד העכו”ם תקיפה ובעל דינו אלם ואינו יכול להוציא ממנו בדייני ישראל יתבענו לדייני ישראל תחלה. אם לא רצה לבא נוטל רשות מבית דין ומציל בדיני עכו”ם מיד בעל דינו

One who litigates before non-Jewish judges or in their courts, even if their laws correspond to Jewish law, is an evil person, and it is as though he blasphemed God and raised his hand (in arrogance) against the Torah; for it says, “And these are the laws that you should place before them” — before them (i.e., the elders of Israel), not before non-Jews; before them, not before judges who are not ordained.

When under non-Jewish rule, if one’s adversary is powerful and will not cooperate with a ruling of a Bet Din, he must first attempt to sue his adversary in Bet Din. If his adversary refuses to appear in Bet Din, he may obtain the Bet Din’s permission and sue in non-Jewish court.

The Rambam’s source is Gittin 88b, which derives the prohibition from the pasuk quoted by the Rambam, “ואלה המשפטים אשר תשים לפניהם” — “and these are the laws you should place before them.” Interestingly, however, the Gemara does not compare litigation in non-Jewish courts to blasphemy and high-handedness, and the commentators on the Rambam do not point to the Rambam’s source for such strong condemnation.

The language the Rambam uses appears to be derived from the following pesukim, said with regard to idolatry:

וְהַנֶּפֶשׁ אֲשֶׁר תַּעֲשֶׂה בְּיָד רָמָה מִן הָאֶזְרָח וּמִן הַגֵּר אֶת ה הוּא מְגַדֵּף וְנִכְרְתָה הַנֶּפֶשׁ הַהִוא מִקֶּרֶב עַמָּהּ
כִּי דְבַר ה’ בָּזָה וְאֶת מִצְוָתוֹ הֵפַר הִכָּרֵת תִּכָּרֵת הַנֶּפֶשׁ הַהִוא עֲוֹנָה בָהּ

A person who shall act high-handedly, whether native or convert, he blasphemes God; that person shall be cut off from among his people, for he scorned the word of God and broke His commandments; that soul shall surely be cut off, its sin is within it. (Bemidbar 15:30-31)

The similarity between our subject and intentional idolatry is apparent in the reason provided for the punishment — “for he scorned the word of God.” Clearly, the Rambam does not mean that litigating in a non-Jewish court is a transgression as serious as idolatry — it is not explicitly prohibited by the Torah and it does not carry the same punishment as idolatry. Nevertheless, by resolving a monetary dispute outside of the system of the Torah one turns his back on the Torah’s system of justice.

Another point worth mentioning along these lines: Rashi in Mishpatim cites a Midrash which states that we learn from the proximity of the laws of the altar to monetary laws that during the time of the Temple, the Sanhedrin were to be situated near the altar. Keli Yakar in Mishpatim discusses at great length the conceptual relationship between the altar and justice. Such connections also seem to indicate that a litigant’s abandonment of the Sanhedrin by resorting to non-Jewish courts is on some level also an abandonment of the altar, reinforcing the Rambam’s comparison of litigation in non-Jewish courts to idolatry and blasphemy.

The Rambam writes that one may only bring suit in non-Jewish courts if his adversary refuses to appear in bet din, and after obtaining bet din’s permission. There may be other exceptions that should be discussed if and when they arise, such as bringing suit to recover against a defendant who is insured — the insurance policy would be unavailable in bet din, and any chillul Hashem may be mitigated by the understood objective of the lawsuit.

So why is it that there are so many reported cases involving Orthodox Jewish litigants fighting their battles in state and federal courts? We posted on HAFTR’s appeal of a Bet Din award to a teacher. Right or wrong (and the Appellate Division said HAFTR was wrong), HAFTR had, so far as I can tell, no business seeking to have a bet din award vacated in state court.

I have no idea how the Satmar factions justify their drawn-out legal battles in state court. As I noted in a comment to Avrohom’s post on a recent decision in the Satmar litigation, something is seriously wrong when the chillul Hashem rises to the level that a state court judge feels compelled to write:

This is an enormously difficult case, involving as it does a bitter battle between two factions whose differences are extremely hard for outsiders to understand. It has produced, as Justice Barasch tells us in an epilogue to his opinion, attempts by people claiming allegiance to one faction or the other “to discredit, intimidate and improperly influence” the Supreme Court, with the result “that there are judges who would prefer to decline any assignment involving members of this group of litigants” (5 Misc 3d 1023[A], 2004 NY Slip Op 51515[U], *13, *14). I join Justice Barasch—as, I am sure, do all my colleagues—in saying that this behavior is intolerable, and in expressing the hope that the proper authorities will deal with it.

Just the other day, Judge Demarest of the Brooklyn Supreme Court issued an opinion of great interest that we’ll hopefully get to soon.

Federal law experts challenge the proposed life sentence for Sholom Rubashkin

From Life Sentence Is Debated for Meat Plant Ex-Chief, New York Times, 4/28/10:

In a final chapter to the long aftermath of a 2008 immigration raid at a kosher meatpacking plant in Iowa, a federal court in Cedar Rapids heard arguments on Wednesday over the sentencing of Sholom Rubashkin, the former chief executive.

Mr. Rubashkin was in charge of the Agriprocessors plant in Postville, Iowa, when immigration agents landed in helicopters to detain nearly 400 illegal immigrant workers. In November, Mr. Rubashkin was convicted of 86 counts of federal bank fraud in connection with loans to the company.

Prosecutors, citing Mr. Rubashkin’s “blatant lawlessness, utter lack of remorse, his egregious and repeated attempts to obstruct justice,” have asked Judge Linda R. Reade to impose a life sentence.

The proposed sentence startled legal experts around the country. In a letter written to Judge Reade on Monday, six former attorneys general, one former solicitor general and more than a dozen former United States attorneys criticized “the government’s extreme sentencing position” and the “potentially severe injustice” that could result.

The former Justice Department officials questioned the interpretation by Stephanie M. Rose, the United States attorney for the Northern District of Iowa, of the federal criminal sentencing guidelines that would apply to Mr. Rubashkin’s white-collar crime.

“We cannot fathom how truly sound and sensible sentencing rules could call for a life sentence — or anything close to it — for Mr. Rubashkin, a 51-year-old, first-time, nonviolent offender,” they wrote. The letter is signed by Janet Reno, William Barr, Richard Thornburgh, Edwin Meese III, Ramsey Clark and Nicholas Katzenbach, all of whom served as attorney general.

Another letter, submitted by former federal judge Paul Cassell and former U.S. Attorney Brett Tolman, compares the proposed federal sentence with the federal guideline sentencing for other crimes, and states that the proposed sentence is disproportionate to the offenses committed. A life sentence would reflect crimes as serious as first degree murder and would be more severe than sentences for second degree murder, rape, kidnapping, and arming foreign terrorist organizations. The full letter can be read here.

The website Justiceforsholom.org has prepared an online letter to Judge Reade that legal professionals can sign to support the Cassell and Tolman letter. The letter in support can be accessed here.

Panel discussion on corruption and public integrity from halachic and secular perspectives

The Center for Ethics at Yeshiva University Invites you to Scandal, Money, and Corruption: What to Do When Leaders Go Bad? — A panel discussion featuring: Rabbi Yosef Blau (RIETS) Prof. Noam Zohar (Dept. of Philosophy, Bar Il-An University) Melanie Sloan, Esq. (Exec. Dir., Citizens for Responsibility and Ethics in Washington). This panel will examine corruption as a failure of public integrity, and will include both Halakhic and secular perspectives. Speakers will discuss issues of misconduct by community and religious leaders as well as those in politics and government.

Contact Information
Primary Contact
John Fousek
212-960-0825
fousek@yu.edu

Date & Location
Date: May 05, 2010
Time: 8:00 PM to 9:30 PM
Location: Yagoda Commons
215 Lexington Ave (at 33rd Street)
Beren Campus
New York, NY 10016