German Courts Argue Right of Jew to Act As Guardian

Whether a Jew is qualified to assume guardianship over a Jewish minor is a problem over which two German courts have disagreed.

According to the Juedische Zeitung of Breslau, a Jewish lawyer of that city was appointed guardian of a manor. Shortly after his appointment he was notified he must not exercise his guardianship and the law court formally dismissed his appointment. There then followed a series of actions which have aroused widespread interest and comment in both Jewish and judicial circles. The lawyer appealed the decision of the lower court, but the decision was upheld by the district court. Thereupon the attorney took the case to the appeal court, which annulled the district court’s decision and ordered it to retry the case. The latter again dismissed the application, it went again to the higher tribunal and a second time the district court’s ruling was annulled.

In its decision, the district court took the stand that while the ward was “non-Aryan,” like the guardian, “that does not justify the appointment of a ‘non-Aryan’ guardian.”

After considerable legal mumbo-jumbo undertaken to prove through a specious comparison with the status and minority rights claims of Jews in Upper Silesia, that the German Jews “consciously place themselves outside Germanism,” the court reached the interesting conclusion that the guardian would not be capable of adequately protecting the ward.

LOWER COURT’S OPINION

“This fundamental position of the Jewish racial minority demonstrates that the Jews,” the court holds “contrary to their previous declarations, consciously place themselves outside Germanium.

“If such a state of tension exists between the minority and the State people in general, the interests of those who are appointed as guardians demand that they should be able to relieve this tension. If it is not relieved it would endanger the interests of the ward, and particularly so in this case where the administration of property is involved.

“The complainant in this case appears, however, to be unqualified to smooth out this tension which exists between the ward as a member of a racial minority and the German people and its members. He has been thrown by the National Socialist Revolution out of his status and actually out of his profession.”

HIGH TRIBUNAL DISAGREES

The higher tribunal countered with following:

The entire attitude of the District Court is not in consonance with the attitude of the National Socialist State on the ‘Aryan’ question. The fact that the law for restoring officialdom does not apply to guardians, that the National Socialist State has not made the circumstance of a person being of Jewish origin a general and fundamental obstacle to his holding any official position, or the position of a lawyer, shows clearly that the Jewish origin of the complainant is not in itself a ground for his dismissal from his appointment as the guardian of a Jewish ward.

“We must in this connection draw attention to the fact that the government has repeatedly declared itself against any extension of the ‘Aryan’ paragraph to realms in which it is not intended to apply, and that it has demanded in all cases that the limits set by the government itself for national and state reasons must be observed.

ATTITUDE IN CONFLICT

“The attitude of the district court is in conflict with all this, since it considers the complainant, by the fact that he is a Jew, as being unable, in its view, to remove existing tension between the minority and the State nation, and it therefore assumes that he endangers the interests of the ward.

“The fear of the district court that the complainant in his anxiety to prevent prejudicing himself personally will not represent the interests of the ward with the necessary determination would be justified only if there were an actual fact before the court giving rise to such an eventuality, which. again, could be taken into consideration only if the complainant were actually threatened by personal consequences, because he had stood out for the interests of his ward with determination. For this there is no basis whatever. It is not visible how far a determined attitude in protecting the interests of this minor might result in hostile tension between her and the German people.”