Case Number

AAA 343/09

Date Decided

3-17-2010

Decision Type

Appellate

Document Type

Full Opinion

Abstract

Facts: The Jerusalem municipality (the respondent) provides financial support to various institutions throughout the city. Institutions requesting funding are required to apply to the different municipality departments that distribute the funds, in accordance with prescribed criteria. The appellant is a registered charity that works for the gay community in the city; it operates a community center in Jerusalem for the gay community, and conducts a series of annual gay pride events in the city, including the annual gay pride parade. During the years 2005 through 2008, the appellant requested financial support from the respondent by filing applications with the respondent’s Culture Department (requesting assistance through both the ongoing support track and the projects track) and from the Social Affairs Department (requesting assistance through the track involving promotion of the status of women until 2007 when all such support was terminated, through the community councils and centers track, through the youth activity track, and from the Division for Youth and Young Adults). These applications were filed in accordance with the criteria established for assistance. All of the requests were denied, on grounds relating to the tests each track established to determine receipt of support. The appellant petitioned the Court for Administrative Affairs in the Jerusalem District Court, on the grounds that the municipality’s decisions were discriminatory. The lower court upheld the municipality’s decisions regarding the denial of funding, and the present appeal followed. As a procedural matter, the decisions regarding all four years are being adjudicated together.

Held: The appellant’s discrimination claims must be evaluated in light of a local authority’s duty to distribute funds on the basis of equality. This duty is identical to the statutory duty imposed on state entities regarding the distribution of funds to public institutions through section 3A of the Foundations of the Budget Act. Section 3A dictates that funds must be distributed to categories of institutions rather than to individual institutions and that all decisions regarding the recipients of government funding must be based on clear, transparent, and equal criteria. Thus, all such decisions must be based solely on relevant considerations, and no improper motivations may be involved; the refusal to give weight to relevant considerations is equivalent to affirmatively considering completely irrelevant factors. Furthermore, even a decision based on relevant grounds can be unreasonable if the outcome shows that substantive equality has been denied. For example, statistical outcomes may be particularly relevant when a decision is reached by a collective body and motivations cannot be determined. Relevancy is determined on two levels – first through a determination that the boundaries of the group affected by the decision had been delineated on relevant grounds (a determination which is to be based on constitutional criteria for equality), and second that all those within the group were being treated equally (a determination which is to be based on administrative law criteria for equality).

In light of these principles, a review of the various criteria relied upon in denying the appellant funding shows that the municipality’s decisions were defective only in one respect. Thus, the appeal can be allowed to proceed only with regard to the decision to deny the appellant funding through the community councils and centers track. That denial was based on a rule that only centers providing services on a geographic-regional basis were entitled to receive funding, meaning that the unique needs of the geographically dispersed gay community would not be met by any source of financial support from the municipality. The rule therefore gave rise to a denial of substantive equality - particularly in light of the fact that other similarly dispersed communities were receiving support through various municipal departments. As such, the Court awarded appellant the support it had requested through this track. The remedy provided is an expansion of an existing criterion used for the provision of support through the community councils and centers track, rather than the addition of a new one.

Appeal allowed.

Keywords

Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- Equality Before the Law

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