Volume 51 Number 76
Produced: Mon Mar 27 6:18:51 EST 2006
Subjects Discussed In This Issue:
196 Ill.App.3d 785
[Jay F Shachter]
Counting Mechalel Shabbos for Minyan
[Chana Luntz]
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From: Jay F Shachter <jay@...>
Date: Sun, 26 Mar 2006 14:02:17 -0600 (CST)
Subject: 196 Ill.App.3d 785
In mail.jewish v51n66 someone wrote the following:
> This is a pretty well-known case in Illinois--maybe some lawyers on the
> list are familiar with it--in which a woman sued her husband for a get
> through the court system. I know only the outlines of the case because
> my daughter and her daughter were friends.
>
> It ended up in the Illinois Supreme Court, which found for the wife,
> requiring the husband to give the get.
This is factually incorrect. The Illinois Supreme Court never heard the
case.
Although the author of the above posting did not name the case, she gave
us enough information to identify it clearly as the case of In re the
Marriage of Kenneth I. Goldman and Annette C. Goldman. The daughter
named above is Shoshana, born in 1980. Perhaps the author of the above
posting was concerned that the laws of Lshon Hara` forbid her from
discussing Annette Goldman's private affairs in public. In a free
society, however, court proceedings are matters of public record. If
you want secret trials, you have to go to Myanmar, or North Korea, or
Guantanamo Bay. Once you bring a case against a fellow Jew before an
Illinois court, you lose all expectation of privacy, and you lose the
right that your privacy be respected. As it happens, both Kenneth
Goldman and, tibbadel lxayyim, Annette Goldman, petitioned the court for
dissolution of marriage. Had Annette Goldman not filed her
cross-petition, had she remained only the Respondent* in the case, it
would be forbidden for us to discuss her affairs in this forum.
*Footnote: In Illinois, pursuant to 750 ILCS 5/105, the parties to a
dissolution proceeding are designated, not the "Plaintiff" and the
"Defendant", but the "Petitioner" and the "Respondent", nonadversarial
terms intended to capture the convivial ambience that is
characteristic of such proceedings. The case is to be captioned "In
re the Marriage of ... and ..." and is usually cited in a suitably
abbreviated form (e.g., "In re Marriage of Kramer").
The case at bar was filed in the Circuit Court of Cook County, Illinois,
where it was given case number 84 D 9048. The case was tried before
Judge Julia M. Nowicki (who had come to the Domestic Relations bench
from her previous position in the Municipal Department, specifically, in
Housing Court), who found, in large part, for the Respondent and
Counter-Petitioner, Annette Goldman. Incidentally, one does not
properly say of a reviewing court, as the above-cited posting does, that
it "found for the wife". One can say only of a trial court that it
"found" for the wife; a reviewing court then either affirms, or
reverses, a lower court's judgement.
Kenneth Goldman, the Petitioner and Counter-Respondent, then appealed
the trial court's judgement to the Appellate Court of Illinois, First
District, where it was given case number 89-1025. The Appellate Court
published its opinion in 1990; see 196 Ill.App.3d 785. It was a
split-decision, 2-1, with a published minority opinion, but the majority
opinion affirmed the lower court judgement. The Appellant then asked
the Illinois Supreme Court for leave to appeal the Appellate Court
judgement. The case was given case number 70068. However, the petition
for leave to appeal was denied -- see 132 Ill.2d 544 -- and no further
proceedings were held in the Illinois Supreme Court. The Illinois
Supreme Court, as stated above, never heard the case. I do not know
whether the petition for leave to appeal was denied because the Supreme
Court was informed of the death of the Appellant, or whether it was
denied on the merits of the petition.
In the sixteen years that have elapsed since the Appellate Court
published its opinion, this case has had almost zero precedential value
in Illinois. It has been cited by Illinois courts only twice (it has
been cited by some Federal courts, but Federal courts have no
precedential value in Illinois, even with respect to the interpretation
of Federal statutes; see 188 Ill.2d 415 at 422-423). Once, it was cited
with respect to a technical question of whether an interim custody order
can become permanent without the taking of additional evidence. On the
other occasion, probably of greater interest to the readers of this
mailing list, its dicta were used to allow a custodial parent to raise
Jewish children as Christians, in violation of the custodial parent's
prior agreement to raise them as Jews. This is probably not a precedent
that was intended or contemplated by Annette Goldman.
Kenneth Goldman was represented in both the circuit and appellate courts
by Kenneth K. Ditkowsky, and, tibbadel lxayyim, Annette Goldman was
represemted, in both the circuit and appellate courts, by Chaim
T. Kiffel. Judge Nowicki may have been the only non-Jew in the
courtroom. There is no evidence in the record that either of the
Goldmans, or their Jewish lawers, made any attempt to adjudiate this
dispute in a Jewish court before openly violating Xoshen Mishpat 26.
Julia Nowicki's subsequent career speaks well of her. In Illinois,
judges are elected by popular vote, so the judiciary has no mechanism
for keeping idiots off the bench, but it does have a mechanism for
moving them to where they can do little harm. Judges in the Municipal
Department who are not idiots are offered positions in the County
Department, Domestic Relations Division. Judges in the Domestic
Relations Division who are not morons are asked to move to the Law
Division, and judges in the Law Division who are not imbeciles get to
move to the Chancery Division (there can also be some movement in the
opposite direction: Municipal Department judges in whom all higher brain
functions have ceased can be moved to, e.g., Marriage Court; it is very
hard to be so incompetent as to be unable to carry out the duties of
Marriage Court). Judge Julia Nowicki has done exactly that, moving from
Housing Court, to Domestic Relations, to Law, to Chancery, where she now
presides in courtroom 2510 in the Daley Center, and where I recently had
a case before her. I cannot say from personal experience that she is a
good judge, because she never had occasion to issue any extensive
written opinions in my case, but I can say from personal experience that
she is not a lazy judge. She generally reads the briefs that are
presented to her (this may seem like faint praise, but the average judge
does not). In the past year or so, however, her disposition has become
sour. The rumor is that she was disappointed at not being chosen for
the Appellate Court, which would be the next step in her career path,
after being appointed to Chancery. What is known is that she has
announced an early retirement. She will be leaving Room 2510, and the
Illinois bench, this coming May.
> After the verdict, the husband, who was himself an attorney, whispered
> to her, "You'll only get a get over my dead body." The wife told me
> this story at his shiva--he died suddenly about two weeks after the
> verdict.
Annette Goldman, she should live and be well, remained unmarried for
many years afterwards, as is to be expected of a single mother of
underage children, but she eventually remarried. I do not know whether
she married a Cohen.
Jay F. ("Yaakov") Shachter
Chicago IL 60645-4111
<jay@...> http://m5.chi.il.us:8080
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From: Chana Luntz <Chana@...>
Date: Sun, 26 Mar 2006 23:09:01 +0100
Subject: RE: Counting Mechalel Shabbos for Minyan
Quoting "Ira L. Jacobson" <laser@...>:
> What the good rav **concludes** there, after we have studied all his
> masa umatan, is that he allows the Kohen mehallel Shabbat to **join
> other kohanim** in blessing us, but if he is the **only** Kohen, we
> convince him to go out, so that there will be no blessing by any
> Kohen.
...
> This is entirely in keeping with another pesaq of his, as I have
> pointed out previously. Rav Ovadia Yosef recommends that if a
> mehallel Shabbat is reciting qaddish, then a "kosher person" should
> recite it along with him. In other words, he permits such a person to
> participate with others, but not to bless or recite qaddish by
> himself.
Actually, his concluding words are as follows:
Maskana l'dina [the halachic conclusions is] that one does not prevent a
cohen mechallel shabbas b'farhesia to join [l'hitzaref] with his
brothers the Cohanim to lift up his hands for the bracha of the cohanim.
If there is no other cohen if it is possible [im efshar] it is good to
convince him to go out of the shul and not lift up his hands (like that
which is written in the teshuva kinyan torah chelek 1 siman 35). But if
it is not possible he can go up also in this case [yesh l'ha'ayil gum
b'zeh] and lift up his hands for the bracha of the cohanim".
If indeed Rav Ovadiah "did not permit" then what is he saying in the
last sentence. And it is not exactly difficult to prevent somebody
saying the birchas cohanim if one is determined to do so (he needs a
minyan in any event, so if the shomrei shabbas people absented
themselves he would be prevented) - even if he tried to overpower the
gabbai and ascend the bimah.
But Rav Ovadiah does not say to prevent him, he says it is better to try
and pursuade him not to. That is rather, if you can fulfil all opinions
in a way that will not cause hurt and embarressment, then that is better
(which is what having a cohen step out of shul is). Similarly with
kaddish. If somebody else says it along with him, the fellow has no
idea that in fact the other sayer does not have a chiyuv, and yet you
are making sure you are choshesh all opinions.
Earlier you write:
>(I would point out--to the best of my knowledge--that the commandment
>for Kohanim to bless is de'oraita if there are at least two Kohanim (Ko
>tevarKHU), but only derabbanan in the case of a single Kohen.)
So if there is one cohen shomer shabbas, and one mechallel shabbas cohen
then according to you unquestionably that second cohen is to be included
to make the two that goes towards this obligation and there is no
suggestion that one should try and pursuade the second cohen to step
out. So what is your thesis, that only in the case of d'rabbanans there
is a problem including a mechallel shabbas b'farhesia? On what do you
base that?
> The parallel conclusion, if we may indeed extrapolate, is that a
> mehallel Shabbat may indeed participate in the minyan, provided that
> there are at least 10 "kosher persons" besides him. Otherwise, the
> conclusion of Iggerot Moshe, Orah Hayyim (Part I), Siman 23, which
> offers the very limited possibility in sh`at hadehaq only (without the
> event being regarded as tefilla betzibbur), seems indeed to be in
> accordance with Rav Ovadia's shitta.
So according to you, the whole question is really about whether a person
who is not shomer shabbas may daven in a shul together with an already
constituted minyan, without somehow posseling the minyan? And Rav
Ovadiah and Rav Moshe allow this bsh'at hadehaq only? That is what your
extrapolation says.
> Does that give a hint as to his position when the going gets rough?
Rather than what seems to be a rather odd extrapolation, you need to
read some of Rav Ovadiah's writings on the importance of minimising
machlokus and dispute (there is a lot of it in the teshuva on drinking a
mechallel shabbas's wine to which I referred you previously)
counterbalanced with an acknowledgement of what the ideal situation
clearly is, which is that there are no mechallelei shabbas b'farhesia,
whether turning up to daven or otherwise.
Perhaps to give an example of a situation that my husband witnessed a
few months ago, to show how this sort thing should be done when it can
be.
My husband was at a barmitzvah, and happened to be sitting next to what
turned out to be a close relative of the barmitzvah (he thinks an
uncle). Now remember my husband only heard all of this because he
happened to be sitting next to the fellow in question, and the gabbai
had to lean over him in order to talk to the fellow.
So the gabbai comes over to the fellow to offer him an aliyah. And the
fellow says to him "No, no, no, you can't give me an aliyah, I am not
shomer shabbas". And the gabbai says to him "Don't worry, I thought of
that, it is a "Mosif"" [which is the term used in Sephardi shuls for the
extra aliyos they add in, where they repeat portions already ready read,
so that the the aliyah is not counted as part of the seven.
Traditionally the Mosif was often used as a way of training the kids to
layn. ie the baal koreh would do one aliya, and then a kid would do it
(or a part of it) again - and that way they get practice in layning from
really quite a young age - which is why so many from these communities
can just get up and layn any part of any parsha if called upon]. "Oh,
said the fellow, that is OK then" and he got up and took the aliyah (and
then, by the way, gave a close to ten thousand pound donation - which I
don't think anybody was expecting).
The point is, of course, if you can do these things without causing any
embarressment, then clearly that is better. Clearly if none will be the
wiser and you have a kohen in shul who, like this fellow, would be more
than prepared to step out temporarily (and kohanim do do this all the
time - we know several Ashkenazi cohanim who will do that whenever
davening in a Sephardi minyan and it is birchas cohanim according to the
Sephardim, because it is not their minhag to duchan every morning in
chutz l'aretz - and there are halachas about doing this if a particular
cohen is physically unusual, or somebody in the community may object to
him) then there is something to be said to him stepping out.
Obviously it is nicer to receive the bracha of birchas cohanim from a
cohen who is a yiras shamayim and gadol b'maasav. Obviously the
community is more honoured if it can call up great rabbonim, and will do
so in preference to even an ordinary person. Clearly one is likely to
be more inspired davening with those capable of davening on a very high
level, and one should try and cleave to such people.
That is not the question. The question is, if one comes into a room and
finds nine other people there, but one of them is either known to be, or
suspected of being mechallel shabbas, should one walk out and prevent
the minyan occurring in the hope that somebody else will turn up, or not
(the case that started this thread). Or, if a cohen mechalel shabbas
wants to get up and duchan, is he to be prevented from doing so or not.
The traditional psak of the Pri Megadim, the Mishna Brura etc was that
such people could not be permitted to be counted, duchan etc. The
modern psak - first starting within the last 150 years or so, but
spreading wider and wider and becoming more and more accepted, is that
they may and that at the very least in order to avoid embarressment etc
they should. The reasoning why acording to large numbers of modern
poskim (in which category I put people like the Chazen Ish and Rav
Moshe) we do not treat a mechallel shabbas b'farhesia today the way they
were to be traditionally treated is set out extensively in these various
teshuvas.
There are also people who disagree. The Minchas Eliezer is not very
keen on any of this (as Rav Ovadiah brings). But there is now a wide
body of modern poskim on which to rely which permit the counting of a
mechallel shabbas b'farhesia as we know them today into a minyan, allows
them to duchan, to receive aliyos etc. - and that, as the Shoel u'mashiv
says, that would seem to be minhag America.
Regards
Chana Luntz
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End of Volume 51 Issue 76