Rabbi Samuel Ohana’s attorney Scott Sobel responds to the latest ruling:
The RCC contract for binding arbitration was for arbitration of the dispute of Mrs. Rita Pauker, as an individual, against Rabbi Samuel Ohana, as an individual, and Beth Midrash Mishkan Israel, a synagogue which is a non-profit corporation. Mrs. Pauker initiated the Beit Din proceeding. She (through her attorney at that time) identified and named the parties to the dispute. She did not sue (arbitrate) as an agent for her late husband’s synagogue, a non-profit corporation. She merely claimed that she was personally entitled to own the four Sifrei Torah in question.
At the second Beit Din hearing in January, Rabbi Ohana proved that according to all applicable laws (Halacha, California and Federal corporate law) Mrs. Pauker had no legal claim of ownership of the four Sifrei Torah. In his decision, Rav Tendler agreed with this position. He did not award the Sifrei Torah to Mrs. Pauker in her individual capacity. We believe that the primary error in the second Beit Din hearing was that instead of simply deciding that Mrs. Pauker had failed to prove her right to ownership of the Torah scrolls, the Rav decided sua sponte, to do something that Mrs. Pauker neither argued for nor requested: “I rule that the four Torah Scrols in question are the property of the non-profit Valley Mishkan Israel Congregation of which Rita Pauker is the Agent. Therefore, the four Torah Scrolls should be returned to Ms. Pauker …” In other words, after determining that Mrs. Pauker had no right to the Sifrei Torah, he gave them to the corporation which Mrs. Pauker apparently controls, an entity which was not a party to the arbitration proceeding.
Under the law, when party A sues party B, no arbitrator, judge or jury has the right to declare that party C is the winner – particularly not in contractual binding arbitration, where the agreement defines the arbitrator’s jurisdiction!
I simply am not able to offer any cogent explanation of the judge’s ruling today, confirming just such a result.
A second point of error at the Beit Din hearing was the arbitrator’s violation of Rabbi Ohana’s and the synagogue’s fundamental right to the counsel of their choice. Rabbi Ohana and the synagogue brought two attorneys to the arbitration hearing: Scott Sobel to argue issues of secular law, and Steven Friedman to argue issues of Halacha, both working pro bono (without payment). The RCC arbitration agreement states: “We understand that we have the right to be represented by attorneys or other advisors in the arbitration at any time.” (Note the plural.) The Rav ruled that each side would only be allowed to have one attorney or advisor participate in the Beit Din proceeding. Thus, Mr. Friedman waited in the lobby throughout the hearing, for nearly five hours! (It is not at all unusual for parties to legal proceedings to have multiple representatives present for trial and other proceedings.)
Rabbi Ohana has asked his attorneys to appeal today’s ruling to the Court of Appeals without delay. Once judgment on today’s ruling has been entered and mailed to the parties, the losing party has up to 60 days to file a Notice of Appeal.
