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Abdelhak v. Jewish Press Inc.

December 31, 2009

YAAKOV ABDELHAK, PLAINTIFF-APPELLANT,
v.
THE JEWISH PRESS INC., OLEG RIVKIN, RICHARD I. SCHARLAT AND GABRIELLE TITO, DEFENDANTS-RESPONDENTS, AND OLEG RIVKIN, DEFENDANT/THIRD PARTY PLAINTIFF-RESPONDENT,
v.
ZALMAN LEVINE, RACHELLE MANDELBAUM AND ALLAN COHEN, THIRD-PARTY DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8860-06.

The opinion of the court was delivered by: Baxter, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted November 30, 2009

Before Judges Baxter, Alvarez and Coburn.

Plaintiff Yaakov Abdelhak appeals from a Law Division order that dismissed his defamation complaint against defendants, The Jewish Press, Inc., Oleg Rivkin, Richard Scharlat and Gabrielle Tito, for lack of subject matter jurisdiction, pursuant to Rule 4:6-2(a). The judge concluded that plaintiff's claims could not be resolved without excessive entanglement by the court and jury in issues of religious doctrine and practice. Plaintiff asserts that because the Law Division focused on numerous factual issues that were irrelevant to the resolution of his defamation complaint, the judge erroneously concluded that his claim could not be resolved by applying neutral principles of law. We reject plaintiff's contention that when a cause of action is secular in nature, and the defendants are not religious figures, there can be no excessive entanglement. Where, as here, a jury cannot evaluate plaintiff's cause of action without developing a keen understanding of religious doctrine, and without applying such religious doctrine to the facts presented, the excessive entanglement that the First Amendment seeks to avoid is squarely presented. Thus, we conclude that neither the secular nature of the cause of action nor the secular professions of the defendants serve as a per se bar to a finding of a lack of subject matter jurisdiction. We affirm.

I.

Plaintiff is a physician specializing in high risk obstetrics, whose patients are, almost without exception, women of the Orthodox Jewish faith. Plaintiff is a practicing Orthodox Jew and was raised as such by his parents. Plaintiff's father was an ordained Orthodox rabbi.

In August 2004, defendant Tito, who was plaintiff's wife, instituted divorce proceedings and informed him that she would seek custody of their two daughters and did not intend to honor her earlier promise to raise the children as Orthodox Jews. Although Tito had renounced the tenets of Orthodox Judaism, she nonetheless demanded that plaintiff provide her with a Get, which is a religious divorce granted by a husband to a wife. Unless granted a Get, an observant Orthodox Jewish woman is not free to marry again; a civil divorce is not sufficient. Moreover, children born of any subsequent marriage are deemed to have been born out of wedlock and bear a considerable stigma among Orthodox Jews. Based on advice and counsel purportedly issued to plaintiff by his spiritual adviser, Rabbi Rudinsky, plaintiff took the position that so long as Tito continued to refuse to raise their children in the Orthodox tradition, he was not obliged to grant her a Get.

While the divorce proceedings were pending in the Family Part, plaintiff's and Tito's rabbi, Aharon Ciment, of Congregation Arzei Darom in Teaneck, provided testimony at a deposition that was favorable to Tito. Rabbi Ciment's deposition testimony caused a deep schism in the congregation, with some congregants supporting him and others, including plaintiff, insisting that Ciment's contract not be renewed.

Defendants Rivkin and Scharlat became ardent supporters of Ciment. At a meeting of several members of the congregation that Rivkin hosted, he and Scharlat vowed to "destroy [plaintiff] socially and professionally" unless plaintiff ceased his criticism of Ciment. Rivkin also commented he would see to it that plaintiff would never be able to remarry, promising to send letters to the Orthodox community stating that plaintiff was unworthy and attacking his character. Rivkin's and Scharlat's antipathy to plaintiff grew so intense that the Temple's board of directors was forced to convene a special meeting in December 2005 to "formulate the Board's response to a campaign that is going on to slander [plaintiff]." Ultimately, the Board requested Rivkin to cease "his methodical campaign of lashon harah*fn1 against [plaintiff]."

Rather than refrain from further activity, as the Board had requested, Rivkin, as well as Scharlat, intensified their involvement in the dispute between plaintiff and defendant Tito over whether plaintiff would provide her with a Get absent her agreement to raise their children as Orthodox Jews. On January 12, 2006, they presented the Board with a "Confidential Memorandum" requesting that the Board discuss "the continuing refusal by [plaintiff] to give a Get to his wife . . . despite her repeated requests." Defendants Rivkin and Scharlat further asked the Board to "consider the implications of this continuing refusal . . . in connection with [plaintiff's] continuing rights and status as a member of this congregation." Defendant Rivkin also initiated a conversation with defendant Tito's divorce attorney, in which he discussed possible witnesses. For his part, defendant Scharlat contacted Rabbi Rudinsky in an attempt to verify whether the Rabbi had, as plaintiff claimed, advised plaintiff that defendant Tito's repudiation of Orthodox Judaism justified plaintiff's refusal to provide a Get.

As a result of plaintiff's resistance to providing defendant Tito a Get, she instituted a proceeding before the Bais Din*fn2 of America (BDA). By its ruling of July 28, 2006, the BDA ordered plaintiff to "give a Get immediately" and "without delay."

Shortly thereafter, defendant Tito contacted The Jewish Press, a newspaper that bills itself as the "largest independent weekly Jewish newspaper in the United States." The Jewish Press champions the cause of women whose husbands refuse to provide a Get by listing such men's names on its Seruv list.*fn3 The Seruv list is designed to publicly shame such recalcitrant husbands into providing the requested Get.

Upon being notified by defendant Tito that plaintiff was in contempt of the Bais Din for his refusal to provide her a Get, The Jewish Press contacted the BDA to verify Tito's claim. Rather than seek written confirmation from the BDA, The Jewish Press telephoned the BDA and spoke to an unnamed staff member who confirmed, erroneously, that a Seruv order of contempt had been issued, when in fact the BDA had merely directed plaintiff to provide the Get immediately.

Upon receiving the supposed confirmation that a Seruv had been issued, The Jewish Press, in its September 6, 2006 print edition, listed plaintiff's name in its regular column entitled "Seruv Listing." Specifically, the "Seruv Listing" falsely stated that a Seruv had been issued by the BDA against "Dr. Yaakov Abdelhak, of Teaneck, N.J." in August 2006. Of the ten individuals listed in the September 6, 2006 Seruv Listing in The Jewish Press, plaintiff was the only person whose professional title was included, even though one other doctor and a lawyer were also on the list.

Three days later, plaintiff was advised by Rabbi Rudinsky, for the first time, that he should provide defendant Tito with a Get. The next day, September 10, 2006, plaintiff did so.

On September 15, 2006, after plaintiff notified The Jewish Press of its error and advised the newspaper that no Seruv had been issued against him, The Jewish Press issued a retraction in its print version on September 15, 2006, blaming the error on misinformation provided by the BDA. The retraction notice added that "we also note that on Sunday, September 10, 2006, Dr. Abdelhak gave his wife a Get.*fn4

On November 29, 2006, plaintiff filed a nine-count complaint in the Law Division against The Jewish Press, Rivkin, Scharlat and Tito alleging defamation, invasion of privacy, and intentional infliction of emotional distress arising from their roles in the false Seruv Listing published by The Jewish Press on September 6, 2006.

As a result of plaintiff filing a complaint and seeking a remedy in a secular court, a different Bais Din, the Mechon L'Hoyroa (MLH), issued a Seruv against plaintiff on March 13, 2008 for refusing to resolve his grievance against Scharlat, an Orthodox Jew, in the Bais Din "after [receiving] several summonses" issued on Scharlat's behalf by that religious body. The Seruv labeled plaintiff a "Mesarev Lavo L'Din" because his "conduct violate[ed] Jewish law" by "willfully declinin[g] to appear in front of Jewish courts." The Seruv document commanded the Orthodox Jewish community to "treat[] [plaintiff] in the manner specified by Rabbi Moshe Isserless (Rama) in Shulchan Aruch Choshen Mishpat 26:1." The March 13, 2008 Seruv has never been rescinded or withdrawn.

In October 2008, all defendants filed motions to dismiss for lack of subject matter jurisdiction, asserting that the resolution of plaintiff's complaint would entail excessive entanglement of the court into religious affairs and practices. On November 7, 2008, after oral argument, Judge Miller rendered a lengthy decision, supplemented by a written opinion, granting defendants' motions to dismiss. A confirming order was issued the same day.

In particular, the judge observed that the proofs to be presented by plaintiff at trial must be examined to determine whether the jury's task would require excessive procedural or substantive interference with church operations. If the answer to either of these inquiries is in the affirmative, then the dispute is truly of a religious nature, rather than theoretically and tangentially touching upon religion, and the claim is barred from secular court review.

Judge Miller found that adjudication of plaintiff's claims would require the court and jury to make no less than eleven determinations regarding questions grounded in religious doctrine:

1. the nature of a Seruv

2. whether [plaintiff's] indifference to the MLH Seruv indicates that it does not hurt his ...


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