Magistrate's Court Judge Blasted for Undermining Higher Court's Authority

The court system ombudsman, retired Supreme Court justice Eliezer Goldberg, recently received a rare request to concurrently examine two complaints against Jerusalem Magistrate's Court Judge Malka Aviv. One was filed on behalf of Supreme Court President Dorit Beinisch, the other by a complainant in a case on which Aviv ruled.

The complaints stem from a scathing 72-page opinion written by Aviv, in response to instructions from Jerusalem District Court, in which she attempted to undermine virtually all of the higher court's findings.

Goldberg found that both complaints were justified, and leveled harsh criticism at Aviv's repudiation of the Jerusalem District Court's instructions.

"The wrangling over the appellate jurisdiction's ruling does not conform with the appropriate behavior of a judge, and certainly does not inspire confidence in the ruling itself," Goldberg said.

The incident began with a civil complaint and counterclaim filed to the Jerusalem Magistrate's Court in 2003, following a dispute over a Jerusalem property. In May 2008, Aviv issued a short 11-page opinion on the matter.

Asher Sapir, one of the complainants, appealed the decision; three Jerusalem District Court judges then overturned a portion of Aviv's rulings and returned a number of matters to her for reconsideration.

A 72-page polemic

When Aviv received the case back from the district court, she replied with a scathing 72-page opinion which Goldberg has described as "essentially polemical."

"With all due respect and deference to the district court," Aviv wrote, "the court's analysis leads to absurd conclusions."

Aviv accused the district court judges of "logical failings" and "wisdom in hindsight," and said their opinion "should not be given any consideration."

Aviv added that her "conscience" does not allow her to support the district court's opinion. "I cannot, with all due respect, fall in line with the district court's decision," she said.

After reading Aviv's strident response, Sapir filed a complaint with Goldberg. Beinisch then made the unusual step of following up with a complaint of her own.

Aviv wrote to Goldberg that she generally accepts the district court's instructions, but that in this case she felt compelled to follow her conscience.

Aviv "should have implemented, without any opposition, the ruling of the district court, even if it did not seem acceptable to her," Goldberg wrote.

Goldberg added that Aviv was undermining the order of the appellate process and the court system as a whole, and that her behavior was neither appropriate for a judge nor inspired confidence in her ruling.