Background
Four petitioners filed a High Court of Justice petition challenging expulsion orders from the Temple Mount issued by Israeli police. The petitioners alleged they were prohibited from visiting the Temple Mount after allegedly violating site visitation rules. They sought broad relief: publication of all Temple Mount access procedures, prohibition on enforcing unpublished procedures, mandatory weekly re-examination of expulsion orders, and a requirement for proper hearings before any future expulsion. Additionally, petitioner Cohen sought interim relief to visit the Temple Mount on his wedding day (June 23, 2026), despite an expulsion order valid until October 9, 2026.
At the initial stage, Deputy President Noam Solberg indicated that the petitioners had not exhausted administrative remedies before the court as required by law and gave them until June 25, 2026 to either withdraw the petition and exhaust remedies or proceed further. She declined to grant interim relief at that stage. The following day, the petitioners filed a motion to disqualify Judge Solberg, alleging she had demonstrated bias and prejudged the case.
The Court’s Holding
The court rejected all grounds for disqualification. Solberg explained that raising threshold procedural defects—here, failure to exhaust remedies—is not only permissible but mandatory in High Court procedure, distinguishing it fundamentally from ordinary civil litigation. She noted that in civil cases, a defendant must file a response to a complaint or risk default judgment. By contrast, in High Court procedure, respondents are not required to file responses; they await the court’s decision and respond accordingly. Threshold issues such as failure to exhaust remedies are threshold matters (עילות סף) that the court must and may raise sua sponte.
The court held that expressing a preliminary view on such procedural matters—and even suggesting a petitioner consider withdrawal—does not constitute bias or create grounds for disqualification, particularly when it allows the petitioner opportunity to address the concern. Solberg also addressed the denial of interim relief, emphasizing that interim orders preserve the status quo and do not effect change. Here, the petitioner waited months after receiving the expulsion order (April 9, 2026) before filing suit on June 16, creating artificial urgency days before his wedding. She found no bias in denying the interim request and rejected the petitioners’ claim of discriminatory treatment without supporting evidence.
Key Takeaways
- High Court procedure differs fundamentally from ordinary civil procedure: threshold issues may and must be raised sua sponte by the court without violating the adversarial principle.
- Expressing preliminary judicial views on procedural defects, and inviting a party to cure those defects, does not establish judicial bias or disqualification grounds.
- Interim relief is designed to preserve the status quo; a petitioner who creates artificial urgency by filing suit months after the complained-of action cannot rely on that urgency to obtain relief.
- The court may require petitioners to exhaust administrative remedies before entertaining a High Court petition, and raising this requirement does not demonstrate prejudgment or partiality.
Why It Matters
This decision reinforces the High Court’s authority to enforce procedural threshold requirements without running afoul of judicial impartiality principles. It clarifies that the High Court’s gatekeeping function—screening out cases that fail to satisfy threshold requirements—is a central feature of the two-stage HCJ process, not a departure from neutral judging. This is particularly important because it permits the court to maintain order and efficiency by ensuring petitioners have exhausted available administrative remedies before seeking judicial intervention.
For Temple Mount access specifically, the decision allows the underlying petition to proceed only if the petitioners cure the procedural defect by properly exhausting administrative channels first. The ruling establishes that judicial skepticism about procedural posture is not evidence of bias toward the parties’ substantive claims, an important principle for maintaining public confidence in judicial neutrality.
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