Ben-Haim v. Edri

• Decision Date: 05 February 2018
• Docket Number: DOCKET NO. A–2247–15T4
• Citation: 183 A.3d 252,453 N.J.Super. 526
• Parties: Sharon BEN–HAIM, Plaintiff–Appellant, v. Daniel EDRI, David Bar Shilton, Eyal Yosef, Zion Boaron, Eliezer Igra, Zion Elgrabli, and Samuel Galimal, Defendants–Respondents.
• Court: New Jersey Superior Court — Appellate Division

453 N.J.Super. 526

183 A.3d 252

Sharon BEN–HAIM, Plaintiff–Appellant,

v.Daniel EDRI, David Bar Shilton, Eyal Yosef, Zion Boaron, Eliezer Igra, Zion Elgrabli, and Samuel Galimal, Defendants–Respondents.

DOCKET NO. A–2247–15T4

Superior Court of New Jersey, Appellate Division.

Argued December 12, 2017

Decided February 5, 2018

Saul Roffe argued the cause for appellant (Saul Roffe, attorney; Sharon Ben–Haim, on the pro se briefs).

Robert Reeves Anderson (Arnold & Porter Kaye Scholer, LLP) of the New York bar, admitted pro hac vice, argued the cause for respondents (Hartmann Doherty Rosa Berman & Bulbulia, LLC, and Arnold & Porter Kaye Scholer, LLP, attorneys; Mark A. Berman and Kevin Sullivan, on the brief).

Lewis S. Yelin (United States Department of Justice) of the New York bar, admitted pro hac vice, argued the cause for amicus curiae United States of America (Paul J. Fishman, United States Attorney, and J. Andrew Ruymann, Assistant United States Attorney, attorneys; Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Lewis S. Yelin, and Sharon Swingle (United States Department of Justice) of the District of Columbia bar, admitted pro hac vice, on the brief).

Before Judges Reisner, Gilson, and Mayer.

The opinion of the court was delivered by

GILSON, J.A.D.

The question presented is whether New Jersey courts have jurisdiction to hear civil claims against foreign officials when the United States, through the State Department, has issued a suggestion of immunity (SOI) determining that those officials are entitled to immunity. We hold that New Jersey courts are bound by an SOI when, as here, the State Department's determination of conduct-based immunity is premised on the officials acting within the scope of their duties for a foreign sovereign nation. Therefore, we affirm the December 9, 2016 order dismissing plaintiff's civil complaint against six Israeli rabbinical judges and an official of the Rabbinical Religious Courts Administration of Israel (Rabbinical Courts of Israel).

I.

This appeal arises out of a protracted divorce and custody dispute between plaintiff, Sharon Ben–Haim, and his wife, Oshrat. The divorce and custody disputes were litigated in actions filed initially in Israel and later in New Jersey. The suit giving rise to this appeal is a separate action filed by plaintiff in New Jersey. In that action, plaintiff sought to assert civil causes of action against the Rabbinical Courts of Israel, six Israeli rabbinical judges, and an official of the Rabbinical Courts of Israel.

Plaintiff and Oshrat are Israeli citizens and were married in Israel in 2008. Before their marriage, they lived in New Jersey and after their wedding they returned to continue living in New Jersey. They have one child, a daughter, who was born in 2009, in New Jersey.

In March 2010, the family traveled together to Israel. Shortly after arriving in Israel, Oshrat filed for divorce in an Israeli rabbinical court. Rabbinical courts are part of Israel's legal system and have jurisdiction over divorces between Jewish citizens of Israel. Israel also has secular family courts, and the family and rabbinical courts have parallel jurisdiction over issues concerning support, child custody, and division of property.

When Oshrat initiated the divorce action in the rabbinical court, she also obtained a ne exeat order, which prohibited plaintiff from leaving Israel until the divorce was finalized. Thereafter, a rabbinical court lifted that order and allowed plaintiff, by himself, to return to New Jersey. Oshrat and the daughter remained in Israel.

In August 2010, plaintiff filed an action in the Israeli family court, seeking the return of his daughter to New Jersey under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention). The Israeli family court ruled in plaintiff's favor and directed Oshrat to return the daughter to New Jersey.

Oshrat appealed that order. Eventually, the Israeli Supreme Court found that Oshrat had wrongfully detained the daughter in Israel. The Israeli Supreme Court also held, however, that plaintiff had consented to the daughter staying in Israel when he negotiated the lifting of the ne exeat order issued by the rabbinical court. Consequently, the Israeli Supreme Court did not require Oshrat to return the daughter to New Jersey.

While the appeal to the Israeli Supreme Court was pending, plaintiff filed an action in the Superior Court of New Jersey, Chancery Division, Family Part (New Jersey Family Part). Like the action in the Israeli family court, the New Jersey Family Part action sought to compel the daughter's return to New Jersey under the Hague Convention.

In August 2011, after the Israeli Supreme Court had declined to compel the daughter's return, the New Jersey Family Part found that Oshrat had abducted the daughter in violation of the Hague Convention. Consequently, the New Jersey Family Part ordered Oshrat to return the daughter to New Jersey. Oshrat refused to obey that order. Thereafter, the New Jersey Family Part granted plaintiff a divorce and awarded him temporary custody of the daughter. Eventually, the Family Part issued a warrant for Oshrat's arrest, and Oshrat was criminally charged in New Jersey in connection with the daughter's abduction. The daughter, however, has never been returned to New Jersey and remains with Oshrat in Israel.

In the meantime, the rabbinical court awarded custody of the daughter to Oshrat. That court, however, could not grant a Jewish divorce because, under Jewish law, a wife seeking divorce requires the husband's consent. Plaintiff has refused to grant Oshrat a Jewish divorce, known as a "get." Israeli law gives rabbinical courts the authority to issue certain sanctions to pressure a non-consenting spouse to give consent to a get. Accordingly, to compel plaintiff to consent to the get, the rabbinical court issued a series of escalating sanctions against plaintiff. Ultimately, the rabbinical court issued an order finding that under Jewish law, plaintiff's refusal was criminal and that Jewish persons must avoid dealing with plaintiff. That rabbinical court order was sent to plaintiff's rabbi in New Jersey, and was published on several websites.

In April 2015, plaintiff filed a civil complaint in the Law Division in New Jersey. In his complaint, plaintiff asserted claims against the Rabbinical Courts of Israel, six Israeli rabbinical judges, and an official of the Rabbinical Courts of Israel. Specifically, plaintiff contended that defendants aided and abetted in the kidnapping of his daughter, defamed him, and intentionally inflicted emotional distress on him.

Defendants removed the civil action to the federal district court on the basis of a federal question under the Foreign Sovereign Immunities Act (FSIA or Act), 28 U.S.C. §§ 1330, 1602 to 1611. The federal court found that the Rabbinical Courts of Israel was an agency of Israel and was entitled to immunity under the FSIA. After dismissing the claims against the Rabbinical Courts of Israel, the federal court remanded the action to the Law Division because it lacked subject matter jurisdiction to address the claims against the individual defendants.

The Israeli government then requested that the State Department recognize the immunity of the remaining seven individual defendants. The State Department invited plaintiff to comment on that request for immunity. Thereafter, in December 2015, the State Department issued an SOI determining that all seven individual defendants were entitled to immunity from a civil suit in the United States, because they were all acting within the scope of their duties as rabbinical judges and an official of the Rabbinical Courts of Israel.

The State Department submitted the SOI to the Law Division. After allowing plaintiff to respond to the SOI, the Law Division heard oral argument on defendants' motion to dismiss. The Law Division then held that the State Department's SOI was binding on it and, therefore, it lacked jurisdiction to hear the claims against the individual foreign officials. Accordingly, on December 9, 2015, the Law Division entered an order dismissing plaintiff's complaint with prejudice. Plaintiff now appeals from the Law Division's order.

II.

The issue presented on this appeal is a legal question, which we review de novo. Allstate Ins. Co. v. Northfield Med. Ctr., P.C., 228 N.J. 596, 619, 159 A.3d 412 (2017) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995) ). Specifically, we must determine if a New Jersey court is bound to follow the State Department's SOI for foreign officials. There are no reported cases addressing this issue in New Jersey. Accordingly, this appeal presents a question of first impression in New Jersey.

While New Jersey courts have not addressed this issue, federal law governs, and several federal courts have addressed the effect of an SOI from the State Department concerning immunity for foreign officials. Accordingly, we begin our analysis with the federal law governing foreign sovereign immunity.

The United States Constitution vests the power to regulate relationships with foreign nations with the Executive and Legislative branches of the federal government. Medellin v. Texas, 552 U.S. 491, 511, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008) ; see also Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 414, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003) ("While Congress holds express authority to regulate public and private dealings with other nations in its war and foreign commerce powers, in foreign affairs the President has a degree of independent authority to act."). Historically, the Executive branch of the federal government has defined the principles governing a foreign state's immunity from lawsuits in the United States. Garamendi, 539 U.S. at 414, 123 S.Ct. 2374 ; see also Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 493, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983) ("Actions against foreign...