Beit Din’s authority upheld on appeal

Decision in favor of rebbe fired by yeshiva not "irrational"

By Michael Orbach

Feb. 23, 2010 / 9 Adar 5770

A judge’s ruling that it was feared would undermine the ability of a beit din (halachic court) to arbitrate matters of Jewish law in New York has been tossed out on appeal.

In December 2008, Brooklyn Supreme Court Judge Bruce M. Balter overturned a decision of the Beth Din of America that he found to be “grossly irrational” and “violative of public policy.”

The three dayanim (judges) on the beit din, Rabbi Mordechai Willig of Yeshiva University, Rabbi Steven Pruzansky of Congregation Bnai Yeshurun of Teaneck, and Rabbi Ronald Warburg, had found in favor of Nochum Brisman, a rebbe dismissed by Hebrew Academy of Five Towns and Rockaway (HAFTR) in 2005 over differences in hashkafic outlook (religious philosophy). Brisman was awarded $50,000 in back pay and his future annual salary was set at $100,000, higher than his previous base pay, but less than his total compensation in his last year of teaching, including overtime.

The dayanim also reinstated Brisman's tenure and ordered that any future attempts to terminate his position must be approved by the beit din.

Arbitration verdicts are routinely submitted for court approval but when Brisman’s lawyer, Martin Neiman, went to get the beit din verdict confirmed, Judge Balter threw it out. The salary was “burdensome, unrealistic, and wholly irrational” and the beis din exceeded its authority by ordering indefinite jurisdiction, he found. Also, according to Judge Balter, the verdict violated public policy by impacting on the ability of private schools to make decisions.

Balter’s ruling raised concerns about limits on future arbitration by beis din. Lawyers for Agudath Israel of America, the Orthodox Union, and the American Jewish Congress filed amicus (friend of the court) briefs in support of the beis din decision. Nathan Diament, public policy director for the Orthodox Union, wrote: “The lower court's ruling in this case undermines the long-established and appropriate relationship between secular and ecclesiastical courts.”

Last week, a four judge panel of New York State's Appellate Division upheld the Beth Din of America’s verdict and restored its various provisions. The original judgment was not “irrational,” the appeals court found, given that the salary was in the range of what Brisman received earlier.

“As HAFTR concedes in its brief, the petitioner's average annual compensation during his last seven years at HAFTR was greater than $100,000.” It was, therefore, not irrational for the panel of arbitrators to set the petitioner's future annual salary at $100,000,” the decision stated.

The judges also found that the beis din’s decision to force any future termination of Brisman’s contract to go through the beis din was “valid,” given the nature of Brisman’s tenure.

“The panel's retention of jurisdiction is not ‘inextricably intertwined’ with its reinstatement of the petitioner to a tenured position with HAFTR or with the provisions of the award referable to the petitioner's pension and salary.”

HAFTR’s attorney, David J. Butler, a partner in the firm of Bingham McCutchen, said he was “disappointed by the decision” and the yeshiva may appeal.

“We'll be talking with my client and determining what our steps will be,” Butler said.

Had the lower court ruling not been overturned, it could have been devastating to the beis din system, according to Brisman’s attorney, Benjamin S. Kaminetzky, a partner in the firm of Davis, Polk and Wardwell who took the case pro-bono, mainly to support the beis din.

“I believe that if this case wasn't reversed it could be used to undermine the continued viability of the beis din system in New York,” he explained. “[The Appellate Court's decision] was an important decision in that it confirmed New York State’s commitment to respect a beis din award without prying into and relitigating the underlying merits of the dispute.”

Rabbi Michael Broyde, a dayan on the Beth Din of America dayan and a

professor of law at Emory University, who served as the appellate judge

within the Beth Din of America on the Brisman matter, said he wasn't

surprised by the appeals court's finding.

“He [Balter] disagreed with it and he confused his disagreement with whether it was rationale and the [Appellate Division] pointed out that that's not the right standard,” said Broyde.