Expert Opinion-2

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2002 WL 32932574 (M.D.Fla.) Page 1

age of 13 years), but does not necessitate that it be in For Opinion See 302 F.Supp.2d 1328 , 290 F.Supp.2d a formal or permanent setting such as a designated 1315 , 2003 WL 25668021 place of worship. Certain crucial components of the prayer-services - such as the reading of the Torah United States District Court, M.D. Florida, (mandated for Saturday-morning, Saturday- Orlando Division. afternoon, Mondays, Thursdays and on full and semi- Joseph KONIOV, individually, Plaintiff, holidays), the recital of Kadish (doxology; inserted at v. certain parts of the daily prayers, as well as obligato- Orange County, Florida, a political subdivision of the ry to be recited by mourners - for a whole year sub- State of Florida, Joel HAMMOCK, as an individual sequent to the death of a parent - at other intervals of and/or agent/ employee of Orange County, Florida, the daily prayers), the recital of Kedushah (sanctifica- Jim Powers, as an individual and/or agent/ employee tion of G-d's Name, recited during morning and af- of Orange County, Florida, Robert Burns, as an indi- ternoon-prayers), the recital of the Thirteen Attributes vidual and/or agent/ employee of Orange County, of Mercy (recited in the morning and afternoon pray- Florida, Robert High, as an individual and/or agent/ ers during weekdays, and during the High Holidays employee of Orange County, Florida, Robert High, as services) - may only be said in an assembly of the an individual and/or agent/ employee of Orange cited quorum. County, Florida, Defendants. No. 6:02-CV-376-ORL-28-JGG. Chabad: Chabad is an acronym for chochmah-binah- November 20, 2002. da'at (wisdom, understanding, knowledge). The term signifies the philosophical-theological approach of a Expert Report of Rabbi J. Immanuel Schochet, Ba, world-wide Jewish Hassidic movement founded over Ma, Dd, PhD. 200 years ago, synthesizing the standard and mystical trends in Judaism, seeking a spiritual regenration of all Jewsto strengthen Jewish religious identification Name of Expert: Rabbi J. Immanuel Schochet Ba and life-style. Followers of this movement, known as Ma Dd Phd. Chabad Hassidim, or Lubavitch Hassidim, cover the Area of Expertise: Social Science >> Religion total spectrum of population, i.e., rabbis, teachers, Case Type: Real Property >> Land Use academics, medical practitioners, lawyers, business- Case Type: Real Property >> Zoning men, artists, and every other kind of profession or Jurisdiction: M.D.Fla. livelihood. Contemporary followers are guided and Representing: Plaintiff inspired by the teachings of the last head of this movement, the late Grand-Rabbi Menachem M. I. A COMPLETE STATEMENT OF ALL OPIN- Schneerson (d. 1994), known as the Lubavitcher IONS TO BE EXPRESSED AND THE BASIS AND Rebbe and universally recognized as the foremost REASONS THEREFORE. Jewish spiritual leader of the 20th century. Rabbi Schneerson taught that it is incumbent upon every A. Definitions: Jew, layman no less than clergy, to seek the spiritual and material welfare of all their co-religionists as Individual prayer: There is a daily schedule of three well as mankind at large, and especially to impress orders of prayer - (a) shacharit, early in the morning; Jewish tradition upon every Jew. (b)minchah, sometime between after-noon and sun- set; and (c)arvit, after nightfall. All three of these are Chabad House: Chabad House is a homonymous obligatory, whether one has the opportunity to pray term. It may be (a) the official center sponsored by communally, as in a synagogue, or not. the Chabad-movement in whatever community that serves as a place of worship, lectures and public edu- Communal prayer: Communal prayer requires a cation, daycare centers for children or the elderly, quorum (minyan) of at least ten adult males (over the parochial schools, and social welfare programs for

the Jewish community - any one of these or any importance of communal prayer; Rabbi A. Y. Pfeifer, combination of some of these. There are presently Ishei Yisrael - Hilchot Tefilah (Laws of Prayer), Je- over 2000 such centers throughout the world wherev- rusalem 1998, ch. XII: 1- 2, and glosses 1-4 ad loc.). er Jewish communities exist. Or (b) in a much more narrow symbolic sense, none of the above, and no This means that it is not simply laudatory and com- more than the private dwelling (house or apartment) mendable but obligatory per se, and especially in whose residents identify with the philosophy of the view that most important components of the prayer- Chabad movement. The Lubavitcher Rebbe instruct- services (cited above) are exclusive to communal ed all his followers to designate their private dwell- prayers. The obligation goes so far that certain other ings as Chabad Houses in the symbolic sense of religious and ritual obligations must defer to this (i)identifying with values and goals of the Chabad primary obligation (Fuks, ibid.). Movement in terms of personal religious lifestyle alongside devotion to other people (inspiring all who It is most preferable to pray in a designated house of dwell or visit there); (ii)as an educational tool for the worship, such as a synagogue, as this constitutes of resident children to realize their responsibilities to- itself a place of holiness. If, however, there is no ward everyone else. quorum in the synagogue and one can assemble a quorum in a private home, one must pray with the Shulchan Aruch: Definitive Code of Jewish Law, i.e., quorum. (See Felder, ibid., pp. 14ff. And 52ff.; Fuks, eccclesiastical laws, binding upon all religious Jews. IV: 10, and the sources cited there in gloss 27; Pfeif- This legal code, first collated in 16th century, was er, VIII: 1-3, and glosses 1-10 ad loc.). This would subsequently complemented by much supplementary also apply if there is a lack of decorum in the syna- commentaries, glosses and other additions, taking gogue, even if it has a quorum, or there are other dis- into consideration later developments and newly aris- turbing factors in the synagogue which interfere with ing conditions ruled upon by the Jewish legal authori- the required concentration and devotion for proper ties of every generation. In the 20th century, numer- worship (Fuks, III: 19 and gloss 38 ad loc., and IV: ous works were published as compendia or digests of 14, and gloss 38 ad loc.). specific sections of the Shulchan Aruch to summarize all relevant materials in their specific contexts (thus The observance of communal prayer will not trans- separate synopses of, e.g., all the laws relating to the form the private dwelling into a synagogue. That is to practical observance of the Sabbath, the various Holy say, innate sanctity attaches itself to a designated days, prayer, dietary laws, and so forth. These digests place of worship and mandates a specific code of offer in the text the accepted rulings, and in marginal conduct in such (prohibiting certain types of conduct glosses and footnotes all relevant sources in earlier and non-ritual usage of the premises etc.) - [Shulchan literature, including varying opinions. Aruch, Orach Chayim, sect. 151], but this would not apply to non-consecrated premises such as a private B. Obligatory Aspects Relating to Prayer: home even if ”“services‘’ are held there: the private home retains its original character. Where and when it is possible to partake in communal prayer, as when there is a regular quorum-service Though a person's living quarters are a private dwell- in a synagogue, or where it is possible to assemble a ing where one engages in all human activities that are quorum, one is duty-bound to do so. (Shulchan not of a religious nature or ritual, it is incumbent up- Aruch, Orach Chayim 90:9. For detailed discussion on every Jew to imbibe his/her dwelling with holi- of this law, classical sources and implications, see the ness. Even the non-consecrated activities such as encyclopedic compendia of all laws relating to prayer eating, sleeping, playing etc. must also be infused in general and communal prayer in particular - Rabbi with holiness, even beyond the normative religious G. Felder, Yesodei Yeshurun, 6 volumes, Toronto rituals that are mandated (such as grace before and 1954 (2nd ed. 1977), vol. I: p. 52ff.; Rabbi Y. Y. after consumption of food and beverages, Torah- Fuks, Hatefilah Betzibur (”“Communal Prayer‘’), study in both day and night-time, the observance of Jerusalem 1978, p. 32ff., and ibid., p. 47ff., chapter I, the Sabbath and Holy Days with their specific rituals, paragraphs 1-4, 12-19, 24-36, and see there also par. family-celebrations that relate to religion, acts of 62-67 re the obligation to inculcate in children the charity and kindness, affixing of mezuzot - scrolls of

Biblical passages affixed to all doors as reminders of Congregation Beth Joseph, Toronto ON, 1996- Divine presence, requirement of some library of reli- present gious texts even if it be minimal etc.), to become in effect miniature sanctuaries - though not of perma- Professor of Philosophy, Humber College, Toronto nent status nor of the same kind as a synagogue (see ON, 1971-1996 Shulchan Aruch, Orach Chayim, sect. 156; Felder, ibid., p. 28ff. Note also Maimonides, Mishneh Torah Visiting Professor of Jewish Law and Philosophy, - Code of Jewish Law, Hilchot De'ot, ch. 1-3). acting dean of degree Studies,

II. THE DATA OR OTHER INFORMATION CON- Maimonides College, Toronto ON, 1978-1990 SIDERED BY THE WITNESS IN FORMING THE OPINIONS. Adjunct Professor, Jewish Medical Ethics, School of Medicine, University of Toronto. Maimonides, Mishneh Torah, Jerusalem 1981

1984-88 Rabbi Joseph Karo, Shulchan Aruch: Standard Code of Jewish Law, New York 1959 Author of over 30 books and numerous articles; world-wide lecturer at universities (including Yale, Rabbi G. Felder, Yesodei Yeshurun, volume I, To- Princeton, Brandeis, UCLA, Berkeley, McGill, York, ronto 1954 (2nd ed. 1977) Oxford, London, Capetown, Melbourne, Sao Paulo) and for Jewish communities, throughout Canada, Rabbi Y. Y. Fuks, Hatefilah Betzibur (”“Communal USA, South America, Europe, Australia, South Afri- Prayer‘’), Jerusalem 1978 ca, Israel, and the Far East

Rabbi A. Y. Pfeifer, Ishei Yisrael - Hilchot Tefilah Books published within the last ten years: (Laws of Prayer), Jerusalem 1958 (2nd ed. 2000) Living With Moshiach, New York 1999 Note: The last three works cited are legal digests with a clearly annotated synopsis of the vast literature they Likkutei Sichot, vol. V: Devarim, English translation summarize. There are numerous works on prayer in with notes and commentary, New Yorkl999 English, but they deal essentially with the philosophical-theological aspects thereof, practical guidance for the religious practitioner, rather than the legal The Testament of R. Israel Baal Shem Tov, New issues. York-Toronto 1998

With regards to the definitions of Chabad and Cha- Tzava'at Harivash (Hebrew), critical edition with bad-Houses, and the aspect of Chabad outreach on commentary, 5th completely revised edition, New the communal and individual levels, see my The Mys- York 1998 tical Dimension , New York 1990 (2nd ed. 1995), vol. III: Chassidic Dimensions, pp. 179-214: ”“Lamp- The Mystical Dimension, 3 volumes, 2nd revised lighters: The Philosophy of Lubavitch Activism.‘’ edition, New York 1995

III. THE QUALIFICATIONS OF THE WITNESS. Mashiach: The Principle of Mashiach and the Messi- anic Era in Jewish Law and Tradition, 3rd revised Rabbi J. Immanuel Schochet, BA, MA, DD, PhD edition New York 1992; Hebrew (expanded) edition Jerusalem 1993. (Also published in Spanish, Italian, French, Portuguese and Iranian translations) Rabbi, Kielcer Congregation, Toronto ON, 1959- 1996 Served as an expert witness in Federal Court of the Eastern District (Brooklyn NY) in 1986, in case of

Agudas Chassidei Chabad vs. Gurary. FN5. Magen David (Taz) 268.8, et al. Rabbi J. Immanuel Schochet, BA, MA, DO. PhD d) It is customary in some communities for a mourner TITLE: Expert Report of Rabbi Eliyahu Touger to pray with a quorum in his home for the entire year of mourning. [FN6] I. A COMPLETE STATEMENT OF ALL, OPIN- IONS TO BE EXPRESSED AND THE BASIS AND FN6. Nitei Gavriel Aveilus. Vol. II, ch. 53, REASONS THEREFORE. note 37. a) Communal prayer will always be considered desir- In truth, the entire question is difficult to understand. able and be accepted, as [ implied by] the verse: [FN1] II is longstanding Jewish practice to gather in the “The mighty G-d does not despise.... If so, it is pref- homes of Rabbis - either because they cannot come to erable that one pray together with the community, for the synagogue or as a token of respect - for commu- then his prayers will certainly be accepted.‘' [FN2] This nal prayer. And yet no one would consider their pri- is reflected in the decisions of the later authorities. vate homes anything other than that. For example in See Kitzur Shulchan Aruch 12:7. my community in Jerusalem, there is a minyan three times a day in the home of Rav Ovadiah Yosef. the FN1. Job 36:5 as quoted by Barachos 8a . former chief Rabbi of Israel. Now although he lives in an apartment building with 20 families, no one FN2. Shulchan Aruch HaRav 52:1 . considers his holding these prayer services as trans- forming his home into a synagogue. b) ”“A person should always endeavor to pray in a synagogue with a congregation, even though be can e) With regard to the designation of a home as a Beit pray in his own house with ten men [who constitute a Chabad Chabad House: In countless public address- quorum].... If he is prevented from coining to a syna- es, the Lubavitcher Rebbe called on his followers to gogue, e.g., he is weak even though he is not infirm, make their Homes Batei Chabad. Chabad Houses. and he cannot gather ten ... men] to his Indeed, there is a popular Lubavitch school song [home]....‘' [FN3] Implied is that if there are forces pre- which says: kol baylt beit Chabad. ”“Every home venting hint from going to a synagogue, it is desira- should be a Chabad House.‘’ And you can buy a ble for him to gather ten men and pray at home. See sticker for your front door saying: Beit Chabad Kitzur Shulchan Aruch 12:12. The fact that people shel? ?. ”“The Chabad House of the.... Family.‘’ gather in his home does not cause the home to be considered a synagogue. II. THE DATA OR OTHER INFORMATION CON- SIDERED BY THE WITNESS IN FORMING THE FN3. Ibid. 90:10 . OPINIONS. c) ”“We do not recite the blessing which summarizes Job 36:5 as quoted by Berachos 8a. seven (the blessing reciled by the ( ”hazan after the communal recitation of the Shemoneh Esreh ) when Shulchan Aruch HaRav 52:1. praying in the homes of bridegrooms and mourners.‘' [FN4] The commentaries to that law [FN5] differen- The Shulchan Aruch of Rav Yosef Caro, Orach Cha- tiate between three categories: a fixed synagogue, a yim 268:10. prayer gathering held in a private home occasionally, and one held in a private home on an ongoing basis. Magen David (Taz) 268:8, et al. It is obvious that there is a distinction between all three categories. Nitei Gavriel Aveilus. Vol. II, ch. 53, note 37.

FN4. The Shulchan Arvch of Rav Yosef III. THE QUALIFICATIONS OF THE WITNESS. Caro. Orach?? 268:10 .

Rabbi Eliyahu Touger

8 Shaulzon, Har Nof

Jerusalem, Israel 95400

Translator of Rabbinic texts including:

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Compensation to be paid for the study and testimony: $50 per double spaced page or $50 per hour, any and all travel and hotel expenses.

Rabbi Eliyahu Touger

Joseph KONIOV, individually, Plaintiff, v. Orange County, Florida, a political subdivision of the State of Florida, Joel HAMMOCK, as an individual and/or agent/ employee of Orange County, Florida, Jim Powers, as an individual and/or agent/ employee of Orange County, Florida, Robert Burns, as an individual and/or agent/ employee of Orange County, Flori- da, Robert High, as an individual and/or agent/ employee of Orange County, Florida, Robert High, as an individual 2002 WL 32932574 (M.D.Fla. ) (Expert Report and Affidavit )

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