March 11, 2009
Public Court Battle Erupts Over Possession of Torahs
Rita Pauker wants her Torah scrolls back. After years of asking and begging, she has resorted to the courts to reclaim ownership of four Torah scrolls she says were owned by her husband. She wants to bequeath them to their nephews, who are Orthodox pulpit rabbis.
Rabbi Samuel Ohana says the Torah scrolls are not hers to take back — they belong to his small North Hollywood synagogue, which has used them regularly since Rabbi Norman Pauker, Rita’s late husband, turned them over to him more than 10 years ago.
In January, a Los Angeles beit din (rabbinic tribunal) ruled in favor of Pauker, saying the Torah scrolls belong to Pauker and that Ohana should turn them over to her within 30 days. Ohana has not complied with the order — which both parties signed as legally binding arbitration — so on Feb. 19, Pauker’s attorney, Baruch Cohen, filed a petition with the Superior Court of California to confirm the arbitration and enforce the ruling.
Ohana and his pro bono attorney, G. Scott Sobel, say the decision rendered by the panel of three rabbis of the Rabbinical Council of California is “inadequate and mistaken.” Ohana had appealed the ruling to the Beit Din Hagadol — the supreme rabbinical court in Jerusalem — on Feb. 16, and on March 2 asked the Superior Court to undo the arbitration award and stay the petition, pending a response from the Jerusalem beit din.
The matter will be heard in Judge Zaven V. Sinanian’s downtown court on April 3.
The feud has elevated, in an unusually public and rancorous way, with accusations of misconduct, sharply worded e-mails and demands for apologies. Some of the most respected rabbis in Los Angeles have been accused of incompetence.
“I would mortgage my house if I had to to get those Torahs back,” Pauker said in her North Hollywood home. “It’s like watching someone steal your car out of your driveway and you’re locked in the house screaming, ‘They’re stealing my car!’”
For his part, Ohana disputes the very notion that the scrolls belong to Pauker, questioning whether they ever were family scrolls. Besides, he said, Torahs are owned by a community, not by a rabbi, a donor or anyone else.
“Sifrei Torah are not like money to change hands — with Sifrei Torah you have to know where they are going,” said Ohana, standing near the tapestry-covered central bima where the Torahs are read every Shabbat in his Sephardic Orthodox synagogue. About 30 people attend weekly services at the small Burbank Boulevard storefront, which is wedged in a shallow strip mall next to a doughnut shop and legal services office. Ohana, 73, is not paid for his work.
The four scrolls, hand-inked on vellum — one of which is pasul, or unkosher for use — are valued at around $100,000, but both parties say it is not a matter of money.
Pauker’s attorney says the beit din’s decision is legally binding, and the arbitration agreement leaves no room for appeal, either to a rabbinic court or a secular court.
Sobel argues that the language in the beit din contract does not preclude an appeal and that appeals are an inherent component of Jewish law, dating back to Moses’ legal system of higher and lower courts in the desert.
Jewish legal scholars, however, say that system was abandoned two millennia ago with the Temple’s destruction. Since then, no beit din has jurisdiction over another beit din’s ruling.
“There is no appeals process in Jewish law,” said Rabbi Michael Broyde, academic director of the law and religion program at Emory University and a judge on the Beth Din of America. Individual batei din can include within their procedures systems for appeal, he says, but absent that, there is no presumption of a right to appeal.
Rabbi Avrohom Union, executive director of the RCC beit din, confirms that the only appeal it allows is to ask the RCC itself to reconsider — which Sobel did and the RCC declined. Union and the other rabbis involved declined further comment on the unresolved case.
In addition, Broyde — who has no knowledge of this case but was commenting on legal and halachic procedures in general — said appeal is very rarely an option in American law for decisions rendered in binding arbitration.
Broyde says secular courts annul arbitration only when gross misconduct is involved — bribery, blatant bias or if the arbitrator is closely related to a litigant. In addition, a secular court cannot determine whether a Jewish court violated Jewish law and procedure, which is what Sobel claims in his brief.
Sobel is pushing forward, saying the beit din ignored crucial evidence and that beit din judge Rabbi Nachum Sauer, one of the top Orthodox decisors in Los Angeles, should have recused himself from the case because he was quoted in a 2007 Daily News article about the dispute — an article Ohana says he didn’t know about.
Cohen counters that the article was attached to a brief Cohen sent to Ohana two weeks before the case went to the beit din. By signing the arbitration agreement, Cohen says, Ohana agreed to Sauer’s participation.
The beit din’s terse decision in favor of Pauker does not elucidate how it arrived at its conclusions. The hearing was not recorded, but interviews with Pauker, Ohana, their attorneys and other parties paint a picture of the case and its history.
The late Rabbi Pauker, who was previously a rabbi in Brooklyn and at Temple Judea in Los Angeles, purchased a shul from Rabbi Max Leader, opening Valley Congregation Mishkan Israel around 1975. The Orthodox congregation had a small Shabbat minyan — about 40 or so regulars — in a rented location in North Hollywood. Pauker’s High Holy Days services attracted about 400 people and were held at the Valley Cities Jewish Community Center until he retired in 1996.
Rabbi Pauker’s Sherman Oaks accountant, Stuart Zimmerman, said that the rabbi had an arrangement where any revenue that came in would go to run the shul and the remainder would be his salary. Pauker brought four Torah scrolls to the congregation.
Rita Pauker says the scrolls had been donated by the rabbi’s father to a synagogue in the Bronx, and when the neighborhood changed and the shul closed, the Torahs went to the son. Zimmerman said he had the same recollection for the origin of some, if not all, of the scrolls.
Ohana, who appeared before the beit din without an attorney, argued that at least some of the Torahs did not come from the Bronx. He showed the beit din photos of the wooden staves upon which the Torah is rolled. A Hebrew calligraphied inscription encircles one handle, saying the Torah was dedicated in Los Angeles in the 1950s by the Bender family in memory of their daughter.
Ohana and his attorney believe the case can set a dangerous precedent about the ownership of Torah scrolls, which they say are not owned by a rabbi but by a community.
“The rabbi is questioning whether he has the right to turn them over to Mrs. Pauker,” Sobel said. “He represents the community, and he believes the community owns the Sifrei Torah.”
When Pauker was ready to retire in the mid-1990s, he tried to sell the congregation — the name, the membership list, some assets — but didn’t find a buyer. Ohana, who worked in business at the time, co-led High Holy Days services with Pauker in 1994, and in 1995 he took over the services, at the same time he ran a Sephardic minyan in another room he rented at the Jewish center. That arrangement fizzled by the next year, because Ohana wanted only separate gender seating, and Pauker had allowed both separate and mixed seating.
The nature of the relationship between Ohana and Rabbi Pauker is unclear. Ohana claims to have been a member of Pauker’s shul and to have served as an unpaid assistant rabbi there for 25 years, stepping in when Pauker was away or ill.
But Rita Pauker says Ohana was never an assistant rabbi and didn’t regularly attend Mishkan Israel. She says the two were professional acquaintances.
“So help me God, this man had nothing to do with our synagogue,” Pauker said.
Two people who were members of Mishkan Israel starting in the mid-1980s — one of them the High Holy Days cantor, who worked closely with Rabbi Pauker — confirmed Rita Pauker’s account, saying Ohana neither attended nor led the shul.
Pauker says that Ohana also missed her husband’s funeral, at which he was supposed to play a role. At the beit din hearing, Ohana said he would have given the Torahs back to Rabbi Pauker, because he was a mensch, but not to Rita Pauker, according to Cohen’s brief. Ohana later said he meant that if Rabbi Pauker had asked for the Torah scrolls to use for his own services, he would surely have complied.
A hard-to-decipher document handwritten by Rabbi Pauker from around 1994 (it is not dated) is headed, “Shul for Sale,” and has the name “Rabbi Gabbai” on the top. It lists the assets of Pauker’s shul, and on one page says, “Torahs for two years 1995 & 1996, insured by Samuel Ohana.” The document has on it Ohana’s signature.
Rita Pauker says this means the Torahs were on loan for two years.
Ohana says the document was Pauker’s personal memo. He says the only agreement he made about the Torahs was to insure them through his business for the two years while he led Pauker’s services at the Jewish center. He claims his signature was pasted onto Pauker’s memo from the one he signed regarding the insurance.
Unable to sell his congregation, Pauker gave Ohana all of his prayer books, his prayer shawls and some furniture. Ohana opened his congregation in July 1997, and he called it Beth Midrash Mishkan Israel in honor of Rabbi Pauker, he says. But the two shuls did not merge, nor was Mishkan Israel turned over to Ohana. Valley Congregation Mishkan Israel is still listed with the IRS as a nonprofit institution.
Ohana says the Torahs went back to Pauker’s garage — after the two years they were used at the Jewish center — until 1998, when Pauker asked Ohana to take them, because, Ohana says, Pauker told him he felt guilty “they were collecting dust” in his garage.
Rita Pauker says Ohana had the Torahs the whole time.
Soon after Pauker died in 2002, his widow asked Ohana for the Torahs — a development Ohana says surprised him. Pauker says Ohana kept assuring her he would give the Torahs back — he made arrangements then canceled them, told her he was going to Israel to get other Torahs, set deadlines then let them pass. At one point, she says, Ohana offered to give her a monthly stipend in exchange for the Torahs, which she refused.
Pauker tried reporting Ohana to the police, who advised her to get an attorney to pursue it as a civil matter. Pauker sought assistance from attorney Jeffrey Bohrer, one of Mishkan Israel’s members, who helped her but was reluctant to go to court, since it was a matter suited for a beit din.
Last June, Pauker retained Cohen, who has experience before both civil and religious courts.
In June 2008, Rabbis Sauer, Union and Gershon Bess heard the case.
Both parties signed a contract agreeing to abide by the outcome of the binding arbitration. On Jan. 19, the rabbis issued their ruling: Ohana was to return the Torahs to Pauker within 30 days.
Soon after, Ohana retained Sobel. Sobel and Cohen exchanged and rejected settlement offers and several sharply worded letters. Sobel helped Ohana draft a letter to the assistant to the chief rabbi in Israel, asking for an appeal on the matter, based in part on Sauer’s alleged bias (the appeal does not mention that Ohana also claims that Sauer offered him a verbal opinion on the matter, allegedly saying the scrolls were Ohana’s).
The appeal, written in Hebrew, enumerates allegations of how the RCC beit din ignored crucial evidence — the donor’s inscription indicating the Torah’s Los Angeles origins, the allegedly tampered documents and the fact that Ohana’s shul is a successor to Pauker’s and entitled to its assets. Ohana also claims that because he used the Torahs for so long, he holds a chazakah — a halachic concept that gives default ownership to one who has retained possession of a disputed object for a length of time.
Legal scholar Broyde says that the concept of chazakah does not apply here — long-term use does not transfer ownership for a borrowed item.
But whether or when the Jerusalem court will hear these arguments — and if it does, whether its jurisdiction will be recognized — remains to be seen.
Meanwhile, as the attorneys fight this out in court, both Ohana and Pauker are suffering the emotional consequences.
“It’s been hammered out; it’s been dealt with for six months,” Pauker said in exasperation. “This man is a fiction writer — he has no side. He really doesn’t. I have nothing to gain from this — nothing to gain, except stopping a robbery.”
And Ohana says he would rather be tending to his congregation, or to his own bet din, where he deals with conversions and other issues. “I take care of weddings and funerals — that should be my devotion,” Ohana said. “Why are they coming with this? Why does it bother her to have these [Torahs] in my congregation?” l