What is the legal doctrine ‘estoppel’ and how did its imperatives thwart Aryeh Deri?

Along with ruling Deri’s ministerial return ‘extremely unreasonable’ given his recidivism, the High Court invoked a 2nd legal device because he’d indicated he was quitting politics

Jeremy Sharon

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

Shas leader Aryeh Deri seen outside his home in Jerusalem, January 19, 2023, a day after the High Court ruled he cannot hold ministerial office. (Yonatan Sindel/Flash90)
Shas leader Aryeh Deri seen outside his home in Jerusalem, January 19, 2023, a day after the High Court ruled he cannot hold ministerial office. (Yonatan Sindel/Flash90)

“We all bow our heads to the law, but the law bows its head to no one,” wrote High Court Justice Alex Stein at the end of his scathing written opinion on Wednesday in which Stein, along with 9 of the other 10 justices on the bench, ruled that Shas leader Aryeh Deri cannot serve as a government minister.

This line was the culmination of Stein’s determination that the false impression Deri gave to the Jerusalem Magistrate’s Court in 2022 that he intended to quit political life barred him from holding ministerial office again.

Indeed, this reasoning, based on the principle of judicial estoppel, is a critical aspect of the ruling, and was applied by Stein together with four other justices.

Although most of the justices ruled that Deri’s appointment was invalid due to the principle of reasonableness, the use of estoppel by five of them is of particular importance in light of the stated intention of the government to annul the court’s ability to use the “reasonableness” principle in evaluating government decisions and appointments.

In anticipation of a ruling based on reasonableness, the coalition was reportedly planning on swiftly passing legislation to annul the use of the doctrine and then reappoint Deri, thus blocking the High Court from invalidating his appointment again.

Because estoppel was invoked too, however, reinstating Deri as a minister will now be far more difficult.

Supreme Court President Esther Hayut and other justices at a hearing of the High Court of Justice on petitions against the appointment of Shas party leader Aryeh Deri as a minister due to his recent conviction for tax offenses, January 5, 2023. (Yonatan Sindel/Flash90)

But what exactly is estoppel, and how does it more comprehensively stymie Deri’s appointment?

Judicial estoppel (the word is derived from the verb “estop”) is a legal doctrine whereby an individual cannot take a position in one legal proceeding which runs contrary to a position they took in a separate legal proceeding, and benefit from both outcomes.

In other words, the High Court justices ruled that the commitment to withdraw from public life that Deri made to the Jerusalem Magistrate’s Court a year ago was binding. As a result, he therefore cannot benefit from the lenient plea bargain he received from that court because of the false impression he gave, and hold ministerial office as well, in direct contravention of that impression.

What the court was saying through its use of estoppel is that Deri should never have accepted his appointment as interior and health minister, and Prime Minister Benjamin Netanyahu should never have offered it, because Deri had told the Jerusalem Magistrate’s Court in 2022, in a hearing ahead of his sentencing for tax offenses, that he was quitting the Knesset in order to obtain a plea bargain.

At that hearing, Deri’s attorney also stated that “the public statement of the accused and his retirement from political life” demonstrate he was “speaking from the heart,” while the judge then stated that Deri was “removing himself from dealing with the needs of the public,” a comment which Deri did not dispute.

Stein, in his ruling, neatly summarized the doctrine by quoting a ruling of the US Seventh Circuit Court of Appeals, in which the judge wrote, “The offense is not taking inconsistent positions so much as it is winning, twice, on the basis of incompatible positions.”

Supreme Court Justice Alex Stein at a court hearing of the appeal of the release of Roman Zadorov at the Supreme Court in Jerusalem, on August 20, 2021. (Yonatan Sindel/Flash90)

The mechanism by which estoppel blocks Deri from being appointed a minister is somewhat vaguer than that of reasonableness. In the Shas leader’s case, this simply determines that Deri’s 2022 conviction for tax fraud and his ongoing suspended jail sentence for that crime, along with his 1999 conviction for bribery, makes his appointment as a government minister, as stated by High Court President Esther Hayut, “unreasonable in the extreme.”

Stein laid out in his opinion that the principles of judicial estoppel not only bar an individual from adopting contradictory positions in legal proceedings but are also relevant when “the application of the provisions of law by a governmental authority is required,” that is, for the appointment of a government minister.

Five of the eleven justices on the panel asserted the principle of estoppel to invalidate Deri’s appointment, while seven ruled that the principle of “reasonableness” disqualifies him, including two of those who also asserted estoppel.

But although only a minority of the panel invoked estoppel, even in the unlikely situation in which the government annulled the court’s ability to use the principle of reasonableness and then reinstate him as minister, several of the other justices would likely join their colleagues in asserting estoppel were the matter returned to the court, and would again block Deri from returning to government.

Moreover, the use of estoppel creates further obstacles to reinstating Deri.

In theory, the government could amend Basic Law: The Judiciary to prevent the court from ruling on political appointments. But this would be a drastic step that would remove any constraint on the government in making political appointments no matter how inappropriate, and would also use up further political capital to enact.

Prime Minister Benjamin Netanyahu embraces Interior and Health Minister Aryeh Deri during the swearing-in ceremony for the new government at the Knesset, December 29, 2022. (Yonatan Sindel/Flash90)

Making Deri an alternate prime minister is another option, but this requires the government to dissolve itself, and then establish a new government based on the complex framework required for an alternate prime minister.

Even in such a case, the estoppel doctrine might still prevent Deri from taking up that position.

In a political career that has been renowned, or perhaps infamous, for numerous schemes, intrigues and political maneuvering, it is striking that a principle such as estoppel might be the one that prevents Deri from serving in high office again.

Several of the justices noted in their ruling the moral and ethical imperatives which the doctrine seeks to uphold, and the critical importance of upholding the rule of law.

Justice Daphne Barak-Erez wrote that the principle of estoppel was designed to “maintain the purity of the legal process.”

Supreme Court Justice Daphne Barak-Erez speaks with former Supreme Court president Aharon Barak at a swearing-in ceremony for new justices, May 31, 2012. (Noam Moskowitz/Flash90)

And Stein argued that barring the Shas leader from office was a moral necessity for the rule of law and for the virtue of honesty towards the law in the face of Deri’s varied legal and political triangulations.

“This [Deri’s] appointment grossly violates his stated commitment, and we cannot allow this. The doctrine of judicial estoppel… is designed to defend the integrity of the judicial system,” Stein averred.

“Being elected to the Knesset and his elevation to the government’s high office does not grant that person special rights, does not exempt him from his legal obligations and does not grant him exemption from the results of legal, criminal or civil proceedings,” concluded the justice.

“In our legal regime, which has engraved on its banner the principle of the rule of law, everyone is equal before the law. High-ranking people are not above the law, and the common citizen is not below it. All bow their heads to the law, but the law bows its head to no one.”

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