Civil Procedure and Sabbath Observance

Last week, the Maryland Court of Appeals (the highest court in that state) ruled that a lower court abused its discretion when it did not postpone a trial that was scheduled to take place on a Jewish holiday, during which the plaintiff, an observant Jew, could not attend a the trial. Two of the days of the ten-day trial were Shavuot, during which the Torah prohibits the performance of work. The plaintiff made several motions to postpone the trial, but the court denied them. Although the plaintiff was able to present his case-in-chief, he was unable to attend during the days which the defendants presented theirs. The Court of Appeals held that this was presumptively prejudicial to the plaintiff, and it was reversible error. Click here to read the entire decision.

This case raises several interesting issues from the perspective of both Jewish and American law. First, from a halachic standpoint, it is necessary to explain why the observant Jewish plaintiff could not have his attorney appear in court for him (assuming that the attorney himself was not Jewish). This is because of the concept of Amira L’Akum, which essentially means that a Jew is not allowed to order a non-Jew to perform an action for him on Shabbos or a holiday that the Jew himself is prohibited to perform. Additionally, a Jew may not even benefit from a prohibited action that a non-Jew performed on his behalf, even if the Jew did not order the non-Jew to perform the action. See generally Shulchan Aruch, Orach Chaim §§ 276, 325. This, in fact, was noted by the plaintiff in the aforementioned case in his motions to postpone the trial.

With regard to American law, this case touches upon the issue of accommodation of religious holidays in civil procedure. This is by no means a novel concern. For instance, New York has a law, dating back to the Nineteenth Century, which states the following:

Whoever maliciously procures any process in a civil action to be served on Saturday, upon any person who keeps Saturday as holy time, and does not labor on that day, or serves upon him any process returnable on that day, or maliciously procures any civil action to which such person is a party to be adjourned to that day for trial, is guilty of a misdemeanor.

General Business Law § 13. This law has been interpreted to apply not only to Saturdays, but to any other day religiously observed as a holiday. In one case, process intentionally served on the Jewish holiday of Succos was held invalid. Hirsch v. Zvi 712 N.Y.S.2d 238 (N.Y. City Civ. Ct. 2000), available here.

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Filed under American Law, Halacha / Jewish Law, News, Shabbos

One response to “Civil Procedure and Sabbath Observance

  1. Pingback: News & Links | Hirhurim – Torah Musings

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