Case Number

AAA 662/11

Date Decided

9-9-2014

Decision Type

Appellate

Document Type

Full Opinion

Abstract

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

Facts: An appeal of the decision of the Haifa Administrative Affairs Court, dismissing the petition of the Appellants and holding that the court should not intervene in the decision of the Kfar Vradim local council according to which a women’s mikve (ritual bath) would not be constructed in the town in the near future.

Held: As a rule, a local council enjoys broad discretion in regard to decisions concerning the allocation of public resources. The initial assumption is that a local council – which is an elected authority whose members represent the public they were chosen to serve – occupies the best position for deciding upon the priorities that will advance the general good, and for striking the proper balance between meeting public needs and maintaining the budgetary framework. Therefore, the Court will not hastily intervene in such decisions, and will refrain from placing itself in the authority’s shoes. In the framework of judicial review, the question of whether public resources were allocated wisely, or whether they could have been allocated differently, will not be considered unless the decision regarding the allocation of resources was tainted by a substantive, fundamental flaw that justifies the Court’s intervention.

It is clear that the council, like any local authority, is subject to the principles of public law. This restraint in regard to judicial review does not relieve the Court of fulfilling its duty: to ensure that the authority exercises its discretion in accordance with the law. And note: the local authority serves – in all of its actions – as a trustee of public funds, and its job is to advance public purposes for the general good. Even in allocating public resources, the authority is obligated to act in a manner that faithfully serves the entire public and ensures proper governance. Accordingly, the allocation of public resources in public authorities must be carried out in accordance with the principles of reasonableness and proportionality, and in accordance with fair, equal, relevant and transparent criteria. Reasonableness requires that in setting priorities among various subjects for which the authority is responsible, priority be given to the more important subjects.

Although the council’s decision relied upon the recommendations of the committee for examining criteria for the construction of public buildings in the village, it is clear that those recommendations cannot absolve it of the duty to exercise its authority to consider every case on its merits. Indeed, an administrative agency will not lightly deviate from the recommendation of a knowledgeable, expert body, established at its request, which was adopted after an in-depth professional evaluation. However, that does not mean that the council is bound by the recommendations of the criteria committee, which is merely an advisory body. Under the circumstances, the decision to rescind its decision to build a mikve in the village, adopt the recommendations of the criteria committee in full, and refrain from taking action in the near future to establish a mikve in the town does not pass the reasonableness test, and does not reasonably balance the needs of the religiously observant female residents of the community, who are required to fulfill their religious obligation of ritual immersion, against the budgetary considerations and the available land resources.

The religious obligation of ritual immersion is an integral part of the life of a religiously observant, married woman, and is an inseparable part of her religious ritual and the expression of her identity and customs. It is substantively related to the right to the free exercise of religion and religious practice. No mikve has ever been built in Kfar Vradim. Given the geographic location of Kfar Vradim and its topographic conditions, there is no reasonable way to go to any of the mikves in the nearby towns on foot. Under the circumstances, the absence of a mikve in the town deprives the female residents of the town of the possibility of performing an obligatory ritual practice that is deemed to be of great importance by the traditionally religious Jewish community.

Keywords

Administrative Law -- Discretion, Constitutional Law -- Freedom of Religion, Constitutional Law -- Judicial Review, Jewish Law -- Ritual baths, Jewish Law -- Women, Jewish Law -- Shabbat, Jewish Law -- Family Law

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