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General Association of Merchants and Self-Employed Persons V. Minister of Interior [Unpublished] (April 19, 2017)

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General Association of Merchants and Self-Employed Persons V. Minister of Interior [Unpublished] (April 19, 2017) High Court of Justice FH HCJ 3660/17 Before: Honorable President M. Naor Honorable Justice E. Hayut Honorable Justice Y. Danziger Honorable Justice N. Hendel Honorable Justice N. Sohlberg Honorable Justice D. Barak-Erez The Petitioners: 1. General Association of Merchants and Self-Employed Persons 2. Noam Knaani 3. Avraham Levi 4. Morris Bremer 5. Yaakov Bremer 6. Adi Wizaum 7. Motti Maoz 8. David Chaimov 9. Eliyahu Miller 10. Isaac Alkoser 11. Pinhas Tsalik The Respondents: 1. Minister of Interior 2. Minister of Economy 3. Ministry of Economy 4. Tel Aviv-Jaffa Municipality 5. Mayor of Tel Aviv-Jaffa 6. Otzar Marine Industries Ltd. 7. The Tel Aviv-Jaffa Economic Development Authority Ltd. 8. Israel Land Authority 9. Gindi Holdings Development 2009 Ltd. 10. Yaakov Bruchim (formal) Further hearing of the High Court of Justice’s verdict in HCJ 6322/14, HCJ 996/15, HCJ 2998/15, and HCJ 4558/15 (unpublished) rendered on April 19, 2017 by the Honorable President M. Naor and the Honorable Justices A. Hayut and D. Barak-Erez Date of Hearing: 15 Av 5777 (August 8, 2017) Representing Petitioner 1: Adv. David Shuv; Adv. Uriel Boni Representing Petitioner 2-11: Adv. Ivri Feingold Representing Respondents 1-3 and 8: Adv. Dana Briskman; Adv. Ron Rosenberg Representing Respondents 4-5 and 7: Adv. Yisrael Leshem; Adv. Yochi Kadir-Paz; Adv. Idan Liron Representing Respondent 6: Adv. Yehezkel Reinhertz; Adv. Avinoam Peretz Representing Respondent 9: Adv. Yehoshua Horesh; Adv. Lior Mimon; Adv. Hagar Pines Verdict President M. Naor: At the heart of this further hearing before us is the character of the Sabbath in the city of Tel Aviv-Jaffa. The background for the proceeding is two amendments to the By-Law of Tel Aviv-Jaffa (Opening and Closing Shops), 5740-1980 (hereinafter together: the Amendments), which address opening businesses on the Sabbath in the city of Tel Aviv-Jaffa. Background of the Further Hearing 1. The By-Law of Tel Aviv-Jaffa (Opening and Closing Shops), 5740-1980 (hereinafter: the By-Law) provides that businesses should not be opened on the Sabbath and Jewish holidays, with limited exceptions (see section 2 of the By-Law). The enforcement of the By-Law was the focus of a judgment by this court in App Adm Pet 2469/12 Bremer v. Tel Aviv-Jaffa Municipality (unpublished) (June 25, 2013) (hereinafter: the Bremer case). In that case, the court accepted the position of the appellants there (who are also the petitioners before us) that the enforcement policy then in place - which included imposing fines but refraining from issuing closure orders – is not effective. The court therefore remanded the issue to the municipality to exercise its discretion and make a decision about how to exercise the powers granted to it to enforce the By-Law. It was also held that if the municipality wants to change its policy regarding opening businesses on the Sabbath, it cannot do so by way of non-enforcement but rather should amend the By-Law as required by law. 1. [sic] As a result of the decision in the Bremer case, in 2014 the city council approved an amendment to the By-Law (By-Law of Tel Aviv-Jaffa (Opening and Closing Shops) (Amendment No. 1), 5774-2014 (hereinafter: Amendment No. 1). Amendment No. 1 basically permitted the opening of businesses on the Sabbath in three commercial sites, the opening of convenience stores in gas stations on the Sabbath and the opening of grocery stores. Then-Minister of Interior Gidon Saar used his authority under Section 258 of the Municipalities Ordinance [New Version] (hereinafter: the Ordinance) to approve most of the provisions of Amendment No. 1, but he invalidated the provision regarding opening grocery stores. Amendment No. 1, as approved, was published in Reshumot [official legislative reporter-trans.]. 2. Thereafter, the city council approved an additional amendment to the By-Law (By-Law of Tel Aviv-Jaffa (Opening and Closing Shops) (Amendment No. 2), 5774-2014 (hereinafter: Amendment No. 2)). Amendment No. 2 addressed the opening of grocery stores on the Sabbath according to area and subject to various restrictions, including receiving a permit. Amendment No. 2 was submitted to Interior Minister Saar on August 13, 2014. On October 7, 2014, using his authority under Section 258 of the Ordinance, the Minister of Interior ordered the publication of Amendment No. 2 to be delayed. About a month later, on November 3, 2014, Interior Minister Saar resigned from his position. From the time the decision was made to delay, and for two and a half years, no decision was made on the merits of Amendment No. 2. That was despite an agreement reached during legal proceedings and various developments, about which I will expand later. 3. These amendments were at the foundation of four petitions that were disposed of in the verdict that is the subject of the further hearing (HC 6322/14 General Association of Merchants and Self-Employed Persons v. Minister of Interior [unpublished] (April 19, 2017). In those petitions a number of claims were raised regarding the amendments. In brief, Petitioner 1 and Petitioners 2-11 (hereinafter: the merchants) and Respondent 9 (hereinafter: Gindi) raised a variety of claims about the lawfulness, reasonableness and proportionality of permitting businesses to open on the Sabbath. In opposition, Respondent 4 (hereinafter: the Municipality) petitioned against the Minister of Interior’s decision to delay the entering-into-force of Amendment No. 2. In the verdict that is the subject of the further hearing it was unanimously decided to accept the Municipality’s petition and to reject the petitions of the merchants and Gindi. Regarding the delay of Amendment No. 2, it was held that, in light of the long period of time that had passed since the decision to delay, the failure to make a decision on the merits should be seen as an unexplained decision to invalidate Amendment No. 2. The absence of an explanation imposed a burden on the state to prove that the decision to invalidate Amendment No. 2 was made lawfully, but the state did not provide a reason that it believed justified the invalidation. Given that state of affairs, the court invalidated the decision to invalidate Amendment No. 2. It was also held that using the amendments to permit businesses to open on the Sabbath is not per se a flawed decision in terms of authority or discretion. 4. The petitioners, who did not accept the result of the verdict, filed a motion for a further hearing, and on July 12, 2017, Deputy President (ret.) E. Rubinstein granted it. In his decision he explained: “Do we have before us a rule in the sense of Section 30(b) of the Courts Law? In my opinion, the resulting state of affairs shows an answer in the affirmative. Indeed, sometimes there is uncertainty in cases like this […], and we are further dealing with a procedure in which restraint was exercised, but once the verdict was rendered against the background of a flaw in the conduct of the authority and with a delay by the Minister of Interior in making his decision, leading the panel to view the issue as an unexplained decision to invalidate, the amended By-Law became a model that could understandably become a ‘national rule’, as is written, ‘Watch me and do as I do’ (Judges 7:17); This – regarding the character of the Sabbath in local authorities as it pertains to opening businesses. This would seem to turn a ‘lack of a rule’ (in the absence of an explanation from the Minister before the panel) to a ‘de facto rule’” (ibid., para. 11). And later it was written: “Irrespective of the result, the Sabbath, whose status in global Judaism needs no elaboration, deserves to have its case considered and clarified when all positions are before the Court, especially considering the broad implications, stakes and importance for others […]” (ibid, para. 12). 5. On August 8, 2017, we heard the parties’ oral arguments before this expanded panel. The disagreements between the parties can be distilled into two questions: The first question before us is the validity of Amendment No. 2, in light of the various transformations it underwent; A second question that arose is whether the amendments meet the standards of administrative law. These are the questions that need to be decided in the further hearing. I will address them in order. The Validity of Amendment No. 2 The Transformations of Amendment No. 2 6. The Municipality submitted Amendment No. 2 to the Minister of Interior for approval on August 13, 2014. About two months later, on October 7, 2014, Interior Minister Saar ordered a delay in publishing the amendment. In doing so, he exercised his power under Section 258 of the Ordinance, which says: Approving and (a) Once the council approves a by-law, Publishing By-Laws the mayor will sign it, and the by-law will be published in Reshumot. (b) A by-law will not be published as detailed in subsection (a) until six days have passed from the day the mayor brought the by-law to the attention of the Minister; If the Minister or his authorized representative announces that he does not oppose the by-law, the by-law will be published even before the end of this period. (c) During the period specified in subsection (b), the Minister may order a delay in publishing the by-law, so long as he does not decide to do so without the Minister or his authorized representative having first detailed his reservations and given the mayor or his authorized representative an opportunity to raise claims against the delay in publishing the by-law.
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