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Further Hearing – Theoretical and Empirical Aspects

Published online by Cambridge University Press:  04 July 2014

Chanan Goldschmidt
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Abstract

The hearing framework known as a further hearing has been familiar to the general public in Israel for some time. This procedure is granted upon the petition of the parties or by the justices of a specific panel of the Supreme Court. However comprehensible the concept appears to be, in view of its simple designation, this legal device has not merited meaningful attention in legal research. By law, a further hearing is a situation where “in a matter on which the Supreme Court has ruled, with a panel of three or more justices, it may rule at a further hearing as a panel of five or more justices.” In such a case, an expanded Supreme Court bench hears a matter that has already been ruled, but the Court may also convene an expanded panel in other instances. It may also do so in a case that was originally heard by an expanded panel without being designated a further hearing, in which case, it will simply be designated an “expanded panel.” This article will address the concept of the further hearing, as opposed to the phenomenon of “expanded panels” in general. The first part of this article will be theoretical, and we will seek a conceptual understanding of this legal institution. In the second part, the article will address empirical research on this subject and will present quantitative data on further hearings held in the course of over thirty years of Supreme Court adjudication (1970-2000). The third and last part of this article will present possible conclusions that may be drawn from the empirical results and will question the need for such an institution.

Type
Applications of Social Science in the Law
Information
Israel Law Review , Volume 35 , Issue 2-3 , Summer-Autumn 2001 , pp. 320 - 353
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2001

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References

1 In spite of its complexity, this legal concept has appeared in the daily media in Israel several times over the past few years, owing a great deal to the possibility of a further hearing in the case of Aryeh Deri.

2 See sec. 30(a) of the Courts Law [Consolidated Version] 1984, 38 L.S.I. 271.

3 Gross, Miron and Shachar, Yoram, “Assignment of Judging Panels of the Supreme Court – Quantitative Analysis” (1996) 29 Mishpatim 567Google Scholar.

4 Sec. 26 of the Courts Law, at 198: “The Supreme Court is constituted of a panel of three justices.”

5 Secs. 26 (1) and 26 (2) of the Courts Law empowers the President or the Deputy President of the Supreme Court to expand the size of the panel of justices, and in addition empowers each panel to expand the number of its members.

6 Secs. 26(3) and 26(5) of the Courts Law also empowers a single justice in certain cases to sit alone as a panel of the Supreme Court, mainly relating to judicial decisions that arise in the course of a trial.

7 A panel of three justices constituted 88.6% of the cases in forty-seven years of judgment that were consolidated and analyzed in the study by Shachar, , Gross, , and Harris, , “Anatomy of Discourse and Dissent in Israel's Supreme Court” (1997) 20 Iyunei Mishpat 749, at 795Google Scholar (hereinafter: “Discourse and Dissent”). See this article for a good analysis of the entire question of the size of the panel in the Supreme Court, a subject that is not within the scope of this present article.

8 Provided in sec. 30 of the Courts Law, at 1123.

9 The entire doctrine of further hearing and the procedure for petitioning for a further hearing, as well as the question of further hearing =(equal) additional appeal, will be clarified and explained in detail in this article.

10 Gross and Shachar, supra n. 3, at 567.

11 Ibid., at 568.

12 This subject also arose in the article by Gross and Shachar, supra n. 3, and also in Supreme Court adjudication. See, for example, Clement Attian Blan v. Executors of the Litwinsky Estate and others 15 P.D. 71, at 75.

13 This article does not intend to delve into elaborate comparisons with various laws throughout the world, and only brief mention will be made, viz., that this problem is resolved in various ways elsewhere in the world: The United States Supreme Court always sits in a full panel of nine justices; the House of Lords in the United Kingdom sits in two fixed panels of five justices each; the French and the German systems draw on the specific expertise of justices and panels, etc. Israel's Supreme Court does not have fixed or expert panels, see Gross and Shachar, supra n. 3, at 570.

14 Sec. 33 of 11 L.S.I. 157, at 163, provides that “A precedent established by the Supreme Court binds every court, except the Supreme Court,” (now sec. 20 of Basic Law: Judicature).

15 Paraphrasing from the ruling by Chief Justice Zmora, Rosenbaum v. Rosenbaum, 2 P.D. 235, at 254: “true and stable – preferably true.”

16 On this subject, see Shachar, Y., “Solidarity and Inter-Generation Dialectics in the Supreme Court – The Politics of Precedent” (2001) 16 Mehkarei MishpatGoogle Scholar (hereinafter: “Solidarity and Inter-Generation Dialectics”); Y. Shachar, C. Goldschmidt and M. Gross, Precedent in the Supreme Court, not yet published; Gross and Shachar, supra n. 3; Shachar, Gross and Harris, “Discourse and Dissent,” supra n. 7.

17 As we shall see in the second part of this article, the empirical analysis, this may perhaps justify the recent tendency to assign larger panels for further hearings.

18 Gross and Shachar, supra n. 3.

19 59% of the variance is explained by this union of seniority and expertise, where every other attempt to explain specific combinations of panels in the Supreme Court yields a far smaller explained variance. Gross and Shachar, supra n. 3, at 583.

20 Gross and Shachar, supra n. 3, at 583.

21 Sec. 20(b) of Basic Law: Judicature, 1110, 1984 38 L.S.I. 101.

22 Hossam bin Mujaahid Hajj' Yiyha v. The State of Israel, 424 Dinim Va Od, Dinim Elyon 21, at 7, the comments by Justice Or; see also the ruling by Justice Silberg in Blan, supra n. 12, at 75; the ruling by Justice Barak in Of Ha'emek v. Ramat Yishay Local Council and others 40(1) P.D. 113, at 134.

23 Gross and Shachar, supra n. 3, at 581, and also in their article “Acceptance and Rejection of Appeals to the Supreme Court – Quantitative Analyses” (1996) 13 Mehkarei Mishpat 329Google Scholar.

24 See supra n. 16. The article offers a fascinating historical analysis of several points along the timeline of the question of stare decisis in the Supreme Court. According to the article, “this question has merited different consideration throughout the years of case law in Israel,” but this is not the occasion to elaborate thereon.

25 Ibid., at 179.

26 See supra n. 22, particularly in relation to the Hajj' Yiyha affair. In addition, as this article is being prepared, Chief Justice Barak wrote, in Anonymous v. Minister of Defense 44(1) P.D. 721 at 744: “Because I am not counted among those who rule that finality of a decision attests to its correctness. Each of us may err. Our professional integrity obliges us to acknowledge our error if we have become convinced that we have indeed erred … These comments apply to each and every judge who struggles with himself and who examines his ruling. In our difficult hours, when we examine ourselves, the immovable star that must guide us is to expose the truth that leads to the manifestation of justice within the gates of the law. We must not barricade ourselves behind our prejudices. We must be prepared to acknowledge our errors.”

27 DrLevin, Shlomo, in his book The Rules of Civil Procedure: Introduction and Basic Principles (“Procedural Rules”) (Jerusalem, Israeli Company for Professional Training, 1999)Google Scholar.

28 See the ruling by Justice Or in Hajj' Yihya, supra n. 22, at 9.

29 Landau, M., “Rule and Discretion in the Making of Law” (1969) 1 Mishpatim 292Google Scholar.

30 See, for example, the ruling by Justice Bach in Hajj' Yihya v. The State of Israel, supra n. 22, at 19: “If the justices of this Court hesitate to deviate from a precedent ruled by an ordinary panel of the Supreme Court, a minori a majus those same hesitations are in order when the question concerns deviation from a principle ruled by an expanded panel, whether this panel heard a certain trial in the context of a further hearing on a ruling by three justices, or whether the expanded panel was convened especially because of the importance and principle of the matter being heard.”

31 Divrei HaKnesset, Vol. 22, 2496–2498Google Scholar.

32 Hajj' Yihya, 45(5) P.D., at 221, supra n. 22, see following for details in this matter.

33 Ibid., at 180.

34 H.H. [Bills] Proceedings 5715-1955, at 64. Then-Minister of Justice Pinchas Rosen spoke from the Knesset plenum, Divrei HaKnesset, Vol. 19, Session 24 at 317: “… The most important and remarkable innovation is, undoubtedly, the amendment that proposes a further hearing in the Supreme Court …” See also the comment by the Chairman of the Knesset's Constitution, Law and Justice Committee, Nir-Rafalkes, MK Nahum, two years later, in further sessions on this legislation, Divrei HaKnesset, Vol. 22, Session 303 at 2101Google Scholar: “… after all this is a great innovation admitted by the government …”

35 Diurei HaKnesset, Vol. 19, Session 24 at 317.

36 See also the comments of MK Harrari who expressly specifies that the question being considered is an appeal, Divrei HaKnesset. Vol. 22, Session 327 at 241: “… in sec. 8 we determined a further hearing, which is a second level of quasi-appeal within that same Supreme Court …”

37 Sec. 30(a) of the Courts Law.

38 Sec. 30(b) of the Courts Law.

39 See, for example, Amad Ganimat v. State of Israel 49(3) P.D. 335, in which the justices granted a further hearing, without any rationale or reason, under the power accorded to them by sec. 30(a) of the Courts Law.

40 Hereinafter a “self-judged further hearing,” to differentiate from a further hearing granted by the President of the Supreme Court upon petition by a litigant.

41 The full text of the section reads:

“The Supreme Court generally sits in panels of three justices, however –

(1) The President or the Deputy President of the Court is empowered to instruct, prior to the commencement of a hearing on a certain matter, that the hearing shall be held before a larger panel of an uneven number of justices;

(2) a panel that has commenced hearing a certain matter shall be empowered to instruct that the continuation of the hearing on that matter shall be held before a larger panel of an uneven number of justices, including those justices who began the hearing …”

42 Sec. 26(1) of the Courts Law, which then addresses the power of the President of the Supreme Court.

43 Sec. 26(2) of the Courts Law, and the text of the section is explicit: “… that has commenced hearing a certain matter shall be empowered to instruct …”

44 One interesting case is Hajj' Yihya 45(5) P.D. at 221, supra n. 22. In that case, Justice Or ruled in the matter of the “silent witness,” a subject of the judgment, in keeping with an existing Supreme Court principle (the Levy Rule). While drafting his ruling, he was apprised that two of his colleagues on the bench, Deputy President of the Supreme Court, Justice Elon and Justice Bach, were about to deviate from the Levy Rule. Justice Or sought to prevent a condition such as this, in which an “incidental majority in a panel of three” rules against an existing Supreme Court principle, and moved to expand the judicial bench that would hear the case, by virtue of the power provided in sec. 26. This proposal was rejected by his colleagues on the bench, and only his subsequent proposal was accepted: the decision to hold a further hearing on this matter would be made under sec. 30. Justice Or wonders at the initial dissent and the later concurrence, and is surprised that an interim ruling was necessary – a ruling by this panel on this case – to be able to move to the next stage in the process: an expanded further hearing. My analysis of this ruling integrates well with my comments above: Does the expansion of the number of justices on the panel fall under the powers provided in sec. 26, or under the power provided by sec. 30? The only way to answer this question is to determine what stage the hearing has reached. In this matter, it was the commencement of the hearing, and thus the Chief Justice did not decide to expand the number of the panel prior to the hearing, nor in its first stage, since once the hearing is underway the only option available to the panel is to decide on a self-judged further hearing after handing down the ruling itself.

45 Sec. 30(b) of the Courts Law.

46 See the ruling by Justice Strasberg-Cohen in Afrofim Housing and Development, Ltd. v. The State of Israel, 56 Dinim Va Od, Dinim Elyon 348 at 351: “The question as to the scope and the nature of difficulty, importance, or innovation of rule that justify – together with considerations of the concrete case – the conduct of a further hearing, was not exhaustively and comprehensively answered in adjudication. It is likely that no such answer can be provided.”

47 Testing inconsistency is a simple matter of dichotomy, and conducting such a test should not be particularly difficult. See, for example, contra, the “silent witness” in The State of Israel v. Hossam bin Mujaahid Hajj' Yiyha 47(3) P.D. 661; compare with, for example, the Nachmani affair, which concerned novelty and difficulty, Ruth Nachmani v. Daniel Nachmani, 49(5) P.D. 598.

48 See Sussmann, Y., Civil Law Code (7th ed., Levin, S., ed., 1995)Google Scholar.

49 See, for example, further hearing 2751/94 “A Different Bureau” & others v. The Minister of Foreign Affairs & others 48(5) P.D. 543; further hearing 3081/91 Kozali v. The State of Israel 45(4) P.D. 441; further hearing 6490/96 Amir v. Amir 50(5) P.D. 55; further hearing 6/82 Yanai v. The Director of the Executioner's Office and others, 35(3) P.D. 41; further hearing 14/87 The Daily Newspapers Association in Israel v. The Minister of Education and others 41(4) P.D. 602. See also further hearing 3489/93 Yair Ben Eliyahu Orr v. The State of Israel, 48(2) P.D. 661: “… What is the difference between a further hearing and a simple appeal? In an appeal on a conviction, the appeals instance examines the factual findings and the derived conclusions to ascertain whether they are grounded in the testimony presented before the court of first instance, and whether no legal errors occurred that could have implications on the determination of the findings and on the application of the legal principle applicable to these findings. In its role as a court of appeals, in the ordinary sense, the Court views an appeal as being guided by principles that set limits on the intervention of the appeals instance in its determination of the first instance as to the reliability of witnesses … this is not the case in the further hearing … the further hearing is not an additional appeal, but is limited to an examination of the principles applied in the ruling for which a further hearing was sought.” Nonetheless, as noted previously, the parties view, and justifiably so, the granting of the further hearing as an “additional appeal.”

50 See, for example, the comments of Justice Dorner in Ruth Nachmani v. Daniel Nachmani 49(5) P.D. 598, at 614: “The President of the Supreme Court, or a Justice who has been so appointed, shall be empowered to decide – under conditions specified in sec. 30(b) of the Courts Law – to conduct a further hearing.” See also the comments of the President of the Supreme Court, Chief Justice Olshan in Ovadia Farazi v. Haim Weisman and others 16 (1236) P.D. 1237.

51 See Levin, Procedural Rules, supra n. 27, at 195.

52 Ibid., at 196.

53 See text accompanying n. 44.

54 Justice Gutin in Esther Sidis v. The President and Members of the High Rabbinical Court and others 12(2) P.D. 1528.

55 The Court always sits in a panel of uneven number, and may sit in a panel of one judge alone, see Secs. 26(3) and 26(5) of the Courts Law. See, for example, the ruling by Chief Justice Barak in Ehud Lavi v. Bank Hapoalim Ltd. 49(5) P.D. 155, noting that there is no further hearing in a case heard by one judge alone.

56 Nachmani, supra n. 50.

57 Justices Levin, Goldberg, Kedmi, Zamir, Strasberg-Cohen, Tal, and Dorner concurred with the opinion of the Chief Justice.

58 Other than a situation in which the Supreme Court is greatly expanded, and then the rationale is that such a number of justices no longer represents a majority of the justices of the Supreme Court. See the ruling by Chief Justice Barak in Nachmani, supra n. 50. Note, however, that not only the ruling in Nachmani referred to an expansion from five justices; see, for example, the comments of Justice Minister Rosen during the parliamentary debates on the legislation, supra n. 34, who states that this option is not possible in a case heard by “… courts of seven or more.” This reinforces the view that an uneven number of seven or more in the original panel cannot generate a subsequent opportunity for a further hearing.

59 On this subject, see the comments by Justice Or in Hajj' Yihya, supra n. 22, at 221; see also the comments by Justice Strasberg-Cohen in Afrofim, supra n. 46, at 348.

60 The most prominent of these is Hajj' Yihya, supra n. 44, with the Levy Rules and the “silent witness.”

61 Where the President of the Supreme Court decides that the case does not warrant a further hearing. Most such rulings are brief, but dismissals may be found in which the reason for dismissal covers many pages.

62 At this point it should be noted that this database of 93 further hearings contains two original rulings, Uzi Meshulam and others v. The State of Israel 42(5) P.D. 1; and also The State of Israel v. Uzi Meshulam and others 42(5) P.D. 1; even though one panel heard both cases in further hearing and one, consolidated document was issued that includes both rulings. Although other matters in which cases were consolidated for a further hearing appear in the database as one consolidated case, here I chose otherwise, given that the further hearing makes a clear distinction between the two. In fact, this separation reflects the Court's decision to grant further hearings to two separate petitions – that of the State and that of Uzi Meshulam and others. It is also appropriate given the difference in the decisions handed down for each of the cases.

63 Gross and Shachar, supra n. 23, at 332.

64 It would be helpful to recall the comments of then-Minister of Justice, Pinhas Rosen, in the Knesset plenum during the debates on this legislation, Divrei HaKnesset, Vol. 19, Session 24, at 315: “… in constitutional matters such as these, which have been handed to us by power of the Supreme Court in its capacity as the High Court of Justice … it is the first instance and also the last instance.”

65 See n. 36 and accompanying text.

66 This separation is not methodologically “pure,” since quite a few rulings address more than one subject, and it can be difficult at times to determine the specific subject of the further hearing. Here, only a general examination was undertaken to examine whether one specific subject is particularly prominent.

67 When a President of the Supreme Court was replaced in the course of the year, his tenure was rounded upward to the respective full or half year.

68 Not significantly different from zero. The past year, in which no further hearings were held, was anomalous, and in particular it deviated from the trend of the last few years. This coordinate rose to some extent, to 0.18, when examined without including the past year, but still remained low and insignificant.

69 A significant coordinate only at 8%, but in comparison with the coordinate for the entire period, the trend is apparent. If the past year is omitted, as was done here, the result is a relatively high coordinate of 0.64, and that, of course, has a significance of less than 1%.

70 As noted above, except for the deviation from this trend in adjudication year 1999, during which no further hearings were held at all.

71 See the “silent witness” in Hajj' Yihya, supra n. 47.

72 Nafisi v. Nafisi 50(3) P.D. 573.

73 This refers to Zaki Nusseibeh and others v. The Minister of Finance 49(4) P.D. 68, a further hearing that was expanded by a Supreme Court panel on its own judgment.

74 In 1988, all of the original rulings that subsequently moved to further hearings were handed down by panels of more than five.

75 See text accompanying n. 17.

76 Gross and Shachar, supra n. 23.

77 One case in which a justice changed his original opinion was the ruling by Chief Justice Barak in Anonymous v. The Minister of Defense 44(1) P.D. 721, at 741-743, which was not entered into this data base because it was ruled after this research had concluded. His clear and forthright comments on this subject are, however, important: “Firstly, my conclusion here contradicts my conclusion in the ruling that is the subject of this appeal … Because I am not counted among those who rule that the finality of the decision attests to its correctness. Each of us may err. Our professional integrity obliges us to acknowledge our error if we have become convinced that we have indeed erred …”

78 As we saw in the data presented by Gross and Shachar in their article, supra n. 23. While this clearly does not refer to a ruling in a lower instance that is reversed in the further hearing, the analogy is possible, with the reservations regarding the fact that it refers to the same Court.

79 As we saw in the first part of this article, the text of the law does not expressly specify how many justices from the original panel will remain for the further hearing, and the only reference we found took note of the original intention that all the justices would remain was in a comment by Sharabi, MK, in Divrei HaKnesset [Parliamentary Debates], Vol. 19, Session 24 at 355Google Scholar: “… A court of three, having ruled on procedure… shall pass it to a further hearing before seven, including the three justices who already concluded their labor …”

80 See, for example: No justice moved on: Mazliach Kachlon v. The State of Israel 94(3) Taksir piske din Shel Bet Hamishpat Haelyon 445; one justice moved on: Liebel v. The Competent Authority for the purpose of the Law for Invalids (Nazi Persecution) 35(3) P.D. 29; Neiger v. Mittelberg 49(5) P.D. 314; two justices moved on: Nafisi u. Nafisi 50(3) P.D. 573; Pineider Co. Ltd. v. David Castro 37(4) P.D. 673; three justices moved on (i.e., the entire original panel remained for the further hearing): Garfinkel v. Pollack 35(1) P.D. 200; Hazon David and others v. The Director of Land Betterment Tax 49(2) P.D. 705; and a single case in which four justices moved on, that same Nachmani affair, supra n. 50, which is the only case to date in which a further hearing was held on a ruling originally handed down by a panel of five.

81 In at least some of the cases in which not all of the justices move on, it is clear that the withdrawal is simply a consequence of one or another of the justices having retired from the bench during the interval between the original ruling and the further hearing on the matter; these findings, however, indicate that this cannot be the only reason.

82 This is not a new phenomenon, and was also noted in the records of the parliamentary debates on this legislation. See, for example, the comments of Bader, MK in Divrei HaKnesset, Vol. 19, Session 24, at 321Google Scholar: “… Mr. Minister of Justice, I am convinced that this is a most unfortunate innovation … with all of the objectivity of the justices, they have nonetheless committed themselves to something. It would not be beneficial if those same justices later sat with others, and consequently issued a different ruling.” See also the comments of Sharabi, MK, Divrei HaKnesset, Vol. 19, Session 24 at 355Google Scholar: “… The further hearing will be of no value if some of those who participate in it are fixed and resolute in their opinions …”

83 Referring to the fact that this study found that 93% of the justices do not change their positions, and also to the psychology of decision-making. See, for example, Fiske, S. and Taylor, S., Social Cognition (New York, McGraw-Hill 1991)Google Scholar; Srull, T. and Wyer, R., “Person Memory and Judgment” (1989) 96 Psychological Review 58–83CrossRefGoogle ScholarPubMed. See also an analysis of the process in another area of decision-making in Bukspan, A. and Goldschmidt, Ch., On Negotiations and Contract Laws (Shamgar Book, 2001, not yet published)Google Scholar.

84 In this study, two kinds of rulings were consolidated: “joint rulings,” which do not specify the name of the justice who wrote the opinion, and “unanimous rulings,” which do specify the name of the justice who wrote the opinion, and also of any other justices who added their reasoning to the written opinion.

85 By this stage, 91 further hearings remained out of the 93 contained in the original database, since two of the original rulings that subsequently moved to further hearings were unpublished and could not be retrieved.

86 The single case in which none of the justices from the original panel moved on to the further hearing was also included here.

87 Clearly this entire subject becomes less significant once the subject turns to the question of a further hearing before a considerably expanded panel that comprises almost all of the justices of the Court, such as in cases of panels of eleven.

88 See the results and the debate to question 6 above.

89 See the results and the discussion for question 7 above.

90 This is significant, clearly, only when the further hearing is not before a panel of all of the Supreme Court Justices, or most of them, which is the case for almost all of the rulings examined in this data base.

91 It should be noted that taking into account the period of the study, Presidents Agranat and Sussmann served brief terms (about three and six years), while the long tenure of Justice Shamgar was entirely within the period of the study (about eleven years). Although this index was already weighted relative to the length of the tenure, this point should be taken into account.

92 Other than Justice Yitzhak Cohen who served a brief tenure of less than two years as President of the Supreme Court, and Justice Barak who served for five years as President during the period of the study.

93 As noted above, this is true also in respect of Justice Cohen, however in light of his brief tenure, whether as President or as Deputy President, this is only natural.

94 See results and discussion in question 2 above.

95 Supra n. 77.

96 As to the argument that the drafting “… determined unlawfully” derives from the lawful option of granting a further hearing in light of an “inconsistency with an existing principle,” I must emphasize that even inconsistency in principles in the same Supreme Court is entirely legal! See the entire theoretical discussion on this subject in the first section of this article.