Dissolving the Temporary Restraining Order in United Poultry Concerns v. Chabad of Irvine

October 13th, 2016

On Tuesday evening, moments before sunset–and the commencement of Yom Kippur–District Court Judge Birotte dissolved a temporary restraining order he had entered four days earlier. How that TRO was dissolved is a important story to be told.

On Thursday, September 28, 2016, United Poultry Concerns (an animal rights group) sought a temporary retraining order in the Central District of California. The suit, brought against Chabad of Irvine and Rabbi Alter Tenenbaum, requested injunctive relief to prohibit the temple’s practice of Kaparot in the period before Yom Kippur begins on sundown on October 10, 2016.

As I told the Atlantic, it was unconscionable that the plaintiffs waited this long to seek a TRO.

“This is a tradition that happens every year at the same time,” Blackman said. “The fact that the plaintiffs waited until six days before the holidays to file a temporary restraining order is unconscionable.” He hopes Chabad will seek legal recourse based on what has happened.

A preliminary injunction could have been sought months ago, providing all parties to fully brief the case. But instead, they waited till the last minute to ambush the defendants at the worst conceivable time.

The twelve day period between September 28 and October 10 is (probably) one of the most hectic periods on the Jewish Calendar. First, the defendants were served process about the TRO on Saturday, October 1 (the Jewish Sabbath). During this time, no business can be transacted. The holiday of Rosh Hashanah stretched from Sunday, October 2 through Tuesday, October 5.  Likewise during this period, no business can be transacted. Wednesday,  October 6 was a fast day (no food or beverages can be imbibed). On Friday, October 7, the district court issued the ex parte temporary restraining order. Once again, the defendants were served process later that day, on the eve of the Sabbath when no work can be transacted.

During the telephonic hearing, the district court said he was “waiting” for the defendants to reply during the period between October 1 and October 7. As the above calendar shows, Rabbi Tenenbaum and Chabad of Irvine had higher priorities at this time than responding to an absolutely frivolous legal claim–one that has been filed and is currently pending in several state courts, with the activists losing every time. Don’t even get me started on the abstention issues at play here–issued not raised because of the ex parte nature of the order. (Also, though not in the papers, the Chabad community suffered the loss of a four-month old infant due to SIDS during this period. Their priorities were truly elsewhere.)

Aside from the fact that the plaintiff’s claim had no legal merit, the district court showed little awareness of the spiritual demands during this period of atonement. As proof positive, the court set an bizarre briefing schedule. Briefs were due the Tuesday morning before Yom Kippur, and oral arguments were scheduled for 10:00 a.m. the morning after Yom Kippur–at this point, it was too late to perform the ritual, so the entire motion would be moot! To use an example, imagine if a group sought an ex parte TRO on December 13 to prohibit a Catholic Church from performing a ritual on Christmas Day. The Court issued the TRO on December 21, requested briefing on December 23, and held a hearing on December 26!? Now, consider the fact that the defendants are religiously prohibited from working on nearly half the days in question.

As I told the Atlantic:

But most flagrant of all, Blackman said, was the timing. It was “really unfortunate that the judge made the briefs due the morning before Yom Kippur, and then made the hearing at 10 a.m. the morning after Yom Kippur,” he said. “As you can imagine, this is a very busy time to try and be in touch with a rabbi.” On Tuesday afternoon, the court gave notice of a new hearing time—just a few hours before sundown in California, when Yom Kippur begins.

Even worse, the judge seemed irked that he had to hold a telephonic hearing on short notice at 3:30 p.m. PT on Tuesday. Keep in mind that the Kaparot ritual cannot be performed after sunset on Tuesday. So there was barely three hours to go until the entire motion was moot. The hearing did not start till nearly 4:00 p.m. (after counsel had already made their appearance). The hearing stretched about 90 minutes.  Then the judge recessed for about 45 minutes. Finally, a few moments before sunset, the district judge announced that he would dissolve the TRO. By that point, it was impossible for the defendants to engage in the ritual, as they were already on their way to temple.Indeed, I was listening to the telephonic hearing, but had to depart early to go to temple. I was in suspense for some time about the outcome of the hearing–you can imagine how I was focusing my prayers. I should also note that an application for a stay to the 9th Circuit was fully briefed, but by stretching the proceedings out so long, it would have been impossible to even petition for an emergency stay.

I realize this may affect my pending application for motion for leave to file an amicus brief (although that would make for a fun case of 1st Amendment retaliation), but with all due respect, it is my professional opinion that the District Court court erred here–especially given the fact that his reason for dissolving the TRO was a 30-year old Supreme Court precedent (Thomas v. Review Board) that was readily available before entering the order in the first place. The court also suggested that the defendants could perform the ritual a different way: by waiving a bag of coins instead of chickens. This was a galling comment. Should Catholics drink Kool-Aid instead of communion wine, or use a ritz cracker instead of a wafer, if some activists determines that is a better option? (Keep in mind that the California Attorney General has never interpreted the statute in the dubious manner plaintiff suggests). Also, the court referred to the ritual as a “sacrifice.” A quick google search would have revealed that it is a ritual of atonement. (Jews have not performed sacrifices since the destruction of the second Temple in 70 AD). I am sincerely grateful to my attorney Ari Kafuman, who as a practicing Jew, was able to correct the Judge on these points and others. (Counsel for plaintiff objected to Ari’s comments because the motion for leave to participate as amicus was still pending). Ari, like me, had to depart the call early to attend services. When the transcript is available, I will post it.

I am grateful to the diligent attorneys at First Liberty (Hiram Sasser, Jeremy Dys, Stephanie N. Phillips), Wilmer Hale (Matthew T. Martens, Gregory Boden, Kevin Gallagher), and Michael Jones for their brilliant work. I would especially like to commend Matthew T. Martens, who presented a brilliant oral arguments on virtually no notice. His recitation of Church of Lukumi was perfect. They were only retained on Monday, October 10, and worked throughout the night to file their brief two minutes before the court’s deadline of Tuesday, October 11, at 8:00 PT.