December 12, 2002
A ‘Final’ Decision Courts Trouble
Religious tribunal's ruling in Chabad property case adds tension to controversial tug of war.
A religious court ruled in favor of Chabad of California late last month, awarding it ownership of Marina del Rey properties contested by the Living Judaism Center (LJC), but the ruling has only exacerbated the battle between the two organizations.
The crux of the highly charged dispute centers on which of two rulings -- one backing Chabad of California and the other in favor of LJC -- is the final one that should be recognized under halacha.
Last January, LJC, known at the time as Chabad of the Marina, filed a civil lawsuit against the Chabad of California in Los Angeles County Superior Court after it tried to break away from Chabad of California. Chabad of the Marina claimed all funds and property.
The Superior Court ordered the case transferred to a beit din (religious court) on July 3 after both sides agreed that the beit din's arbitration, to be conducted by five rabbis, would be binding and could not be appealed. Approval of the religious tribunal's decision by the Superior Court would then formalize the action under state law. The Superior Court is expected to act by Feb. 11, 2003
In its Nov. 27 ruling, the beit din said that the transfer of Chabad properties to a non-Chabad entity constituted "a very grave offense and a betrayal of that which is sacred to us." The religious court decided that LJC must transfer ownership of all acquired Chabad properties to Chabad of California, return all funds raised via the use of the name Chabad and pay Rabbi Boruch Shlomo Cunin and Chabad of California $230,000 in legal fees.
However, many in the Chabad community and elsewhere believe that the beit din's ruling is invalid, because it had issued an earlier ruling on Oct. 23 in favor of LJC. Chabad of California, however, says that no ruling was made prior to the one on Nov. 27.
According to the halachic laws of beit din, once a decision has been issued it cannot be reversed, which means that if for some reason the Oct. 23 decision were to be found valid, the Nov. 27 decision would not be binding.
At this point however, there appears to be no action on the dispute over which is the final decision, with the exception of opinions issued by a religious court and rabbi in Israel, neither of which have any legal standing in the matter, unless the LJC can convince the superior court that they have greater halachic validity than the Nov. 27 decision. As the case stands now, if Chabad of California files the Nov. 27 decision with Superior Court as expected, it will legally take over the properties, which it plans to use to serve the Marina del Rey community.
The disputed Oct. 23 ruling, which took the opposite position, said that properties in question should be transferred to Chabad of the Marina (now known as the Living Judaism Center). It also said that Rabbi Shmulik Naparstek, who was fired as shliach (Chabad emissary) in Marina del Rey, should have a 30-day probation period in which he would remain as shliach and present a claim to the beit din over his dismissal.
Cunin, the head Chabad shliach in California, fired Naparstek in January and claimed ownership of the properties owned by Chabad of the Marina. Chabad of the Marina subsequently changed its corporate name to the Living Judaism Center and filed a complaint against Chabad of California in Superior Court. It alleged wrongful termination of Naparstek and challenged the attempted takeover, claiming LJC had raised a majority of its own funds.
In March, Chabad of California filed a countercomplaint against the center, alleging that Naparstek had conducted unauthorized Chabad activities on Chabad premises and had knowingly violated Cunin's policy prohibiting banquets at which men and women sit together.
For many in the Chabad community, the dispute has wider implications. Some believe that the issue of Cunin versus Naparstek is evidence of Cunin's alleged abuse of power in the Chabad community. Others think that Cunin's actions were well within the rights that the head shliach has over his employees.
Chabad members on both sides of the issue who were contacted by The Journal for comment requested that their names not be used.
Some of those supporting Cunin said they feared a victory for Naparstek could call into question the authority of head shliachs in the more than 50 countries where Chabad is established.
A petition supporting Naparstek and the Oct. 23 judgment is being circulated on the Internet by a group calling itself the Vaad Shel Shluchim L'Maan Ha'Emes VeHasholom (the Emissaries' Committee for Truth and Peace) and has been signed by emissaries in eight states.
The petition says: "To remain silent in the face of such practice is to lend it validity and G-d forbid, license to be repeated. It is certainly incumbent upon us to speak out when it becomes apparent that the integrity of this [beit din] process is being compromised and/or manipulated."
The wheels for the controversial beit din decision were set in motion last July when the Superior Court approved and ordered both parties to settle their dispute in a beit din, whose decision would be binding and could not appealed.
The beit din chosen was made up of five rabbis. Two were chosen by Cunin: Rabbi Moshe Bogomilsky from New York and Rabbi Yehuda Leib Shapira of Florida. Two were chosen by Naparstek: Rabbi Mordechai Shmuel Ashkenazi from Kfar Chabad and Rabbi Yitzchak Yehuda Yaroslavsky from Nachalat Har Chabad, both of Israel. One neutral rabbi was chosen by both sides: Rabbi David Moshe Lieberman from Belgium. The arbitration proceedings were held in Miami in October.
According to a letter written by Ashkenazi and Yaroslavsky, which was addressed to the three other beit din rabbis and widely disseminated in the Chabad community, a final decision on the case favoring LJC was reached Oct. 23.
"The final decision was written in the rabbis' handwriting," the letter stated. "And we all signed it without waiting for it to be printed to avoid the onset of pressure, and after a judgment is written and signed, it cannot be changed...."
"After we unanimously agreed, wrote and signed," the letter continued, "Rabbis Bogomilsky and Shapira took the handwritten signed document and said that it was in order to hand it over to the sofer dayan [legal scribe] so as to add the standard introduction that is written at the opening of a psak din [judgment], to type it and translate it into English...."
"When the parties entered before us for the last time," the letter went on to say, "Rabbi Bogomilsky began speaking and said that the beit din had reached a decision regarding the dispute and announced before the parties the second half of the psak din."
The parties involved then reportedly waited for the Oct. 23 decision to be typed and distributed. In the meantime, however, the other three rabbis (Bogomilsky, Shapira and Lieberman) allegedly decided on a new ruling.
In their letter, Ashkenazi and Yaroslavsky reportedly stated that the three rabbis told them that they had "changed [their] minds." Ashkenazi and Yaroslavsky wrote, "We have considered in depth your [rabbis'] request to change the written version and have decided that the law, which forbids changing, applies to this situation. And also, we found no substantive reason to change that which was agreed and signed upon and thereby make a mockery of the beit din in the eyes of the Jewish nation."
Bogomilsky and Shapira did not return calls from The Jewish Journal for comment on the disputed ruling or letter.
Marshall Grossman is the attorney for Cunin and Chabad of California, and was assisted in the proceedings by associate Seth Gerber. Grossman told The Journal that the Oct. 23 document was not the final decision.
"What the LJC is attempting to do is look back at various preliminary discussions among members of the beit din and say at some point in time, members of the beit din had been looking at various results different to the ultimate decision [on Nov. 27]," Grossman said. "The only decision that counts is the final decision, and that decision is a victory for Chabad of California on every point."
After the Nov. 27 ruling was issued, Rabbi Tzvi Weinman, the rabbinic lawyer acting on behalf of the LJC, filed a case in the Jerusalem Regional Rabbinical Court against the beit din rabbis, alleging that the changed judgment has no validity.
On Dec. 2, the Jerusalem court issued a decision "prohibiting the defendants and the parties to the arbitration from making any use of the decision of 27 November, including submitting it to the civil court for approval, and for it to be given the force of a civil court judgment."
Rabbi Mordechai Eliyahu, the former chief rabbi of Israel, also issued an opinion, writing a letter to Ashkenazi and Yaroslavsky. In the letter he said "the document of 27 November has no validity according to the Shulhan Aruch [Code of Jewish Law] and is worthless."
Neither the Israeli religious court nor ex-chief rabbi's opinions have any standing in the California case. But the LJC claims that according to halacha, these opinions need to be dealt with. The LJC is now waiting for the summons from the Jerusalem court to be responded to by Chabad, although it is not clear how this action will be enforced. In the meantime, Chabad reportedly is waiting for the Nov. 27 ruling to be approved in Superior Court.
Grossman, commenting on the Jerusalem pronouncements, said they are of no consequence. "It is regrettable and hypocritical," he said, "that the LJC went searching for a rabbi here and there who would express an opinion on the merits of this dispute, without hearing any of the evidence or testimony."
Chabad community members interviewed by The Journal under the condition that they would not be named, believe that the struggle between Cunin and Naparstek is more about Cunin exercising his power. They said they see Cunin's actions ultimately hurting Chabad. However, others said that Cunin was well within his rights, and while the dispute is upsetting, it is an anomaly for the movement and would not tarnish Chabad's reputation in California.
Rabbi Shlomo Schwartz, the director of the Chai Center, a nonprofit outreach organization, and a former Chabad shliach, said that if Chabad of California in ignored the Jerusalem court, it "is going to move Chabad further out of mainstream. If they ignore it, it means they don't care about the entire Orthodox Jewish world, including Israel, and that makes Chabad a mockery."
Rabbi Gershon Schusterman, who worked as a shliach for 18 years before he also resigned because of what he said was "duress" from Cunin, believes the Nov. 27 decision would hurt the institution of shlichus upon which Chabad outreach is based.
Schusterman, who directed the Hebrew Academy of Orange County, said, "It would not portend well for the spirit of shlichus, because shlichus is a movement driven by idealism. When it deteriorates to an exercise of power, when might for its own sake prevails, the soul of shlichus becomes extinguished,"
Grossman denied that Cunin has abused his power. "It is not unusual to find a few detractors who are motivated, whether by jealousy or their own failures, with respect to any person with a position of responsibility," he said. "You can find anyone to make a similar comment about any leading rabbis in this community in any branch of Judaism, Reform, Conservative or Orthodox."