SADA Class 1

בג"ץ נוער כהלכה- In Emmanuel, a charedi yeshuv, they decided to completely separate the elementary school between the Sefaradic and the Ashkenazi girls. עמותת נוער כהלכה turned to Bagatz with a request against משרד החינוך, who is responsible for Israeli schools in, the regional council of Emannuel, the מרכז החינוך עצמי organization, the teachers, and the parents. The last two were not made to be defendants in the case, but bagatz decided that a בזיון בית המשפט could be applied against them in accordance withהלכת מוניות לוד. This bagatz was submitted on 6.8.2009, and at this point the proceeding was to have ended. A year after the decision was made, the court was asked yet again to apply pressure to enforce its ruling with arguments of בזיון בית המשפט. After the final decision was given the ruling wasn’t fulfilled and the integration never took place. The parents of the Ashkenazi girls established a private school in the area and sent their daughters. The parents did not follow the order of Bagatz, but does this constitute a violation of the court order? This is a tough question: It is possible that the establishment of an alternative school is in line with the ruling?

After a ruling is issued, the sides can agree to a פשרה between themselves. What does the court contribute if that happens? The court gives a ruling in favor of 1 of the sides,which it can use as a bargaining chip.

The teachers and the parents were not a side to the dispute, but bagatz still ruled that it is possible to apply a בזיון בית המשפטorder against them, or anyone else who is aware of the court order and facilitates the violation of the order. In the beginning, the court ruled that for every day that the parents do not send their daughters to the school they would have to pay a fine. This did not hold so they ordered jail time.Only after that did they reach the compromise at the end of June. The grounds for the violation of the court order ended at that time because the parents were not required to send their daughters to school during the summer. This shows how important a role the time factor plays in the court proceeding.

As we said earlier, the parents were not a side to the proceeding themselves, but Bagatz relied upon the precedent of מוניות לוד (ruled that a person who is not a side to the proceeding can be punished using בזיון בית המשפטcharges.) What could the plaintiff have done in order to avoid this question? He could have added them as sides to the proceeding on the grounds of הפרת חובה חקוקה or ל"ה.One of the important considerations in a trial is choosing the type of proceeding. Going to bagatz vs to a regular civil proceeding makes a big difference, and it depends on the strategy the petitioner wishes to use. Going to bagatz will get publicity, save time (this is the only level, no appeal) and has the widest inf. on society.

Important: 1) Going to court opens bags of worms which can not always be predicted. This begins when a person first approaches the court system to decide something. IE: othersides which have an interest can be involved in the proceeding, without your consent, or court orders which you didn’t expect. These considerations must be made before submittinga claim. This is what makes סד"א the גזרה ציבורית.

2)סדא- not only the rules of when the state acts in the legal world, but also how it acts and uses those tools.It’s a way to understand how the state uses its powers, what structures and frameworks exist through which it operates.Additionally, one more important point is regarding the person being judged- for him, סד"א is a tool box that he can use to apply the state’s power of enforcement to resolve his problems.We should consider these two aspects and perspectives whenever we think about SADA.

בג"ץ לב- As opposed to PD Emmanuel, the proceeding had not concluded in this case and they requested aהליך ביניים.The trial was still going on in the rabbinic court. The סעד זמני the that rabbinic court provided for was an injunction preventing the wife from leaving Israel,due to the fear that she would flea and avoid aמיצוי הליך שלום ביתruling. Bagatz is getting involved in a preliminary stage, they got rid of the temporary injunction against her leaving and instead required a collateral to be paid by a 3rd party. Barak ruled and it shows how the rabbinic court should use its סמכותה הדיונית הטבועה. As opposed to the civil courts, the rabbinic courts don’t have organized SADA and Bagatz reached the conclusion that in this case they have the סמכות טבועה- the authority exists to make their own rules becauseit’s a court. This authority doesn’t come from the fact that the Rabbinic Court rules based on rabbinic law, but from its essence as an adjudicating body. Barak calls this "סמכות שלטונית"which connects to the point that prof. made -that SADA uses the power of the state to rule, that this can be a coercive power, and therefore bagatz has the right to review decisions; IE, making unconstitutional civil procedure rules like court fees that are too high, other measures that do not enable a side to have a הליך הוגן. Barak says that in principle, the rabbinic court must honor its use of the civil procedure and emphasizes the importance of the ההליך הדיוני, כללי הצדק הטבעי. There are requirements for: חובת הנמקה, הזכות להשמיע טענות, איסור משוא פנים. כמו כן, מדגיש את חשיבות הגינות הדיון, יעילותו וסופיותו, פומביות הדיון, נגישות ביהמ"ש, יציבות וודאות בהסדרים דיוניים. Additionally, everyone has a right to freedom of movement and other constitutional rights.

The purposes/goals of the Civil Procedure - Barak in Bagatz Lev:

  1. צדק- הליך הוגן=צדק דיוני..There is another principle and that is הצדק המהותי according to which, the side that is right should win the case. צדק המהותי often clashes withצדק דיוני because although the truth is with one party, if he fails to follow the procedural guidelines of the court he won’t win the case. IE doesn’t submit the כ"ת on time or didn’t make an important argument. Despite צדק המהותי being on his side, the צדק דיוניisn’t. The judge decides what is stronger, המהות או הסדרים הדיוניים.

Formalistic Approach- When there is such a conflict, the procedural principles should beat the המהות. Approach that law must be יציב וודאי, and lawyers must know the procedural rules- it cannot be that differences in the idea of צדק will yield different results before different judges.

Opposed-IEBagatz places all of the emphasis on המהותיהצדק and the importance of דיוני is ignored.

The choice of ערכאה or judge can be based off this consideration of which is more important-“procedurality” or substantive justice. (Barak- מהותי, Grunis and Zusman- formalistic approach.)

Another conflict in סד"א is related to the idea of equality and which type we want.

  1. שוויון במשאבי ההידיינות של הצדדים השונים- In many cases there is a big difference in the power of the two sides (insurance company v. insured, person v. state) and rarely are the sides equal in power. Sometimes this can be solved by exempting the weak side from paying the אגרה. Sometimes one side is a repeat player (insurance company, etc), so we try to make the other side bigger by allowing class action suits.
  2. ניסיון ליצור יחס שווה לבעלי דין שונים בהליכים דומים- IE, a class action suit, is 1case that represents everyone against a powerful body. Ex: מעשה בית דין- a ruling in 1 case can apply in another.
  3. שוויון בתוצאות- Should we allow SADA to be used for distributive justice? Ex: in a divorce hearing, should we allow the woman to veto on the ערכאה- would protect her on the husbands account. Ex: To extend the statute of limitations to 10 years in a consumer related suit.

2.אמת- sometimes we forfeit the truth to achieve other things. This is contrary to the principle and instinctive thought that סד"א is intended to attain truth, because that is not what is always right.

3. יעילות- Two types:יעילות לפרט- That the proceeding will be as simple as possible, to prevent a party from spending more money than he has to. Time factor- the slower the trial, the more feeling of waste. Israeltries to get things to be short by using tools like mediation, arbitration, or ס"ד מקוצר, or small claims. The other side of this coin is that some lawyers take advantage of the time by dragging things out.

יעילות לחברה- Maximize societal wealth,not waste time/money in court. Simple cases should be sent to simple judges who are paid less, and more complicated cases to better judges. We can also keep costs low by giving בימ"ש השלום more jurisdiction. We want to create a system with optimal incentive for going to court for people who society desires to go to court. If there is a type of dispute better settled in mediation, then if the court sets a very high אגרה for the case,it will encourage people to go to mediation. [שיקולי צדק תועלתניים/תוצאתיים – we check optimality according to the society- what will create more happiness and wealthשיקולי צדק דאונטולוגיים- - these are more moralistic concerns that ignore economics.]

All of the above considerations will help determine if we should emphasize the procedural rules or on the principles and standards. SADA is viewed to be a lot more interested in rules. Rules are easier because you get the meaning from the contents of the rule, as opposed to principles where one must apply ש"ד. This is the difference between the rule that a defense must be filed within 30 days or a reasonable time.What IS זמן סביר? Leaning towards rules emphasizes הליך הוגן, while principles emphasize צדק מהותי. Too many rules are contingent on deciding standards,and judicial discretion.

Leaning towards rules in this argument makes the sides in the case stronger, while leaning towards principles gives the court more power.More “standards” = less certainty, and everything is contingent on the judges interpretation.More rules = lawyers and the smarter side can use them to his advantage. Bowels v. Russell: A man was convicted of murder in Ohio and sentenced to life in prison. He appealed and it was rejected. Then he turned to the fed court and argued that he didn’t get a הליך הוגן and that the state violated his habeas corpus, and this too was rejected. The federal ruling came to him late and he requested an extended time to appeal. The court allowed a 2 week extension, but wrote a date that was actually 17 days later. The defendant filed his appeal during the 3 days of limbo and the federal court ruled that they wouldn’t hear the case. Went to the Supreme Court, who ruled (5-4) that there is no jurisdiction to hear the case- this is a clear favoring of the formalistic approach.

Rules 524 and 526 give an indication of the stance of סדא for rules or principles.

שיקולים תוצאתיים- בוחנים את הרציות/נכונות התוצאה של כלל או פעולה משפטית-Desirability of rules b/o results:

  1. תועלת/יעילות-what is the utility to society? Does it create more or less wealth? (law and economics approach)
  2. חלוקה- Does the rule create equality between individuals or groups of people, this does not relate to the overall welfare but rather the reduction of gaps.
  3. שיקולים דאונטולוגיים/הוגנות- Intrinsic fairness, look at the action, not the result or a specific rule. Is the action fair? This is removed from the actual world- Kantian.

הבחנות בין המשפט הדיוני למשפט המהותי

Importance of the difference in the אפיו of משפט מהותי as opposed to משפט דיוני rules:

  1. תחולה בזמן- When does a new rule apply? If it’s מ"ד it applies right away, and on whatever proceedings are currently in progress (=אקטיבית).If it is מ"מ it only applies prospectively (=פרוספקטיבית) on things and actions that will happen in the future. Ex: if the law changes regarding the number of days to submit a paper, the law applies on trials currently in progress.
  2. ברירת דין הפורום- משפט בינ"ל פרטי- If the case has international scope then the דיוני matters are determined by which court the trial is going on in, but מהותי matters are in accordance with the agreement of the sides in the contract. If sides agree to be judged by a particular set of מהותי law, that is enforceable. If they choose a different country’sדיוני laws,it’s not enforceable. It would be too difficult to have the judge learn the particular דיוני law of other countries.

Is the “statue of limitations” a מהותי or דיוני issue? Important distinction b/c in an intl case, this could make the difference of whether or not the issue can go to court if there is a difference in the countries’ rules. Unclear, but the leaning is that it is מהותי because it limits/allows access to the court and, without allowing this there would be no court case, despite it being a seemingly procedural rule.

  1. סמכות יוצר הדין- What type of takanot can the Minister of Justice make? דיוני or only מהותי?

פס"ד רייך נ' המר- Injunction given prohibiting someone from leaving the country. Until then, the rule was that this type of injunction could only be issued to prevent a פגיעה בהליך, but in this case it was given in order to ensure that the decision would be carried out- תקנה 301 לתקנות סד"א. היום זה 384(א).- The argument is that this a מהותי rule and is outside the authority of the Minister of the Interior to make, because he can only make דיוני rules.The court did not accept this and ruled that the Minister did have the authority.

How do we tell the difference between דיוני and מהותי rules?

  1. The accepted distinction is between "מה" ל"איך". The מהותי is what and דיוני is how. מהותי- “what” are the legal rights that I posses? דיוני- “How” can I wield the power of the state in order to achieve the desired “what”? This is how to protect rights when they are not respected. Another distinction - the דיוני is relevant to what goes on inside the court room while the מהותי governs all that goes on outside the court. (There are objections to this because some say that there are דיוני things which are also value based.)

[Justice Holmes says life is the test for this distinction: Only if we can force someone to do something does it fall under the purview of law. The M is the suggestions and the D is how another person can force me to do the M- so D is the more important part of law because that is coercive.]

  1. פס"ד רייך נ' המר- Landow says that the only question to ask is if the injunction against leaving the country changes something in the מהותי law. To test this we ask if the takana provides for this remedy to only help attaina court order that the M law grants, or is this a new סעד in and of itself?

According to the prof. since this decision, nothing much has changed.

בג"ץ פלוני נ' ביה"ד הצבאי המיוחד- Only way to challenge the army court is to Bagatz. The appellant argues that the army court doesn’t have authority to judge him and Bagatz is checking into this as aדיון מקדמי . Levine rules that the change in law is דיוני but the important thing to take from the decision is that there is no clear distinction between M and D that can be made - each case must be checked in its own context and weighed against the purposes of the rule: what is the authority/ jurisdiction created by the rule? Are there distinctions regarding on what the rule will apply? Is this an international forum? Ben Porat makes this point in her article as well: the judges are no longer making the distinction between D and M stam, but rather raising עקרוני questions regarding the “תכלית” of the law.

עע"א ארביב- ערעור עתירת אסיר - woman violated parole. Barak deals with the application of time in Legal Normot: Active, Prospective, Retrospective. Retrospective applies a new law on an action that already happened. Argument against retrospective- in איכויות אדם, we don’t apply new laws to the past, and if there is a way to interpret a new law so it does not apply retrospectively then that’s what we should do, even if it takes fancy פרשנות. Bagatz completes the ideas that Levin started in Bagatz Ploni- if the law is intended to apply retrospectively or prospectively, that is the distinction between M and D. (?)

פס"ד אי.בי.אי נגד אלסינט- הליך רשות ערעור אזרחי- Request for class action suit rejected and then appealed, but between the rejection and appeal the new class action law was enacted (changed the whole approval process for getting a class action suit approved). Question is does it apply to incidences that happened before the law? Barak said this would not be a retrospective application of law because the case has not been decided, but is still going on. The question is-should this change apply to cases that are currently going on, because if not, then the old law would still be applied? Barak uses פרשנות תכליתית: law lacks a section indicating when the law will be in effect (something that the legislature can decide). Therefore Barak must determine himself when the law will apply.Since the law is coming to arrange something דיוני and does not create any new סעדים, it will apply “active” (now). Because the appeal is pending and there is no final decision yet, the new law will apply here.

The question toraise here is if a class action lawsuit is דיוני or מהותי (because it changes who and how one can bring suit and that affects peoples’ expectations)? People are very afraid of class action suits because it is almost like a criminal trial with tremendous amounts of discovery and is expensive; the threat of class action suits affects actions of businesses – thus this change in law is really M and not D. Contrary to the opinion of Barak.

In this regard Matza in פס"ד ברזני- holds that class actions suits is a M issue. The implications of class action are up there with torts/consumer law cases and have serious goals/purposes. This type of proceeding has serious effects, especially on defendant (will affect his actions, high legal costs…) and therefore because of these considerations it should be considered the “what” (ie. M), even according to the distinctions brought earlier by Barak. The ability to bring a class action suit is tantamount to M so we see from this another example of how the distinction between D and M is very fuzzy.