How Do I File a Canon Lawsuit?

Q:  A group of us in my parish would like to hire a canon lawyer.  Specifically, we want to sue the bishop of the diocese for abuse of power, after he unjustly removed our parish priest without cause…. How do we go about filing a canon lawsuit?  –Katrina

A:  You don’t.

This is not meant to disparage Katrina, because she has unintentionally proven a good point: it is gradually becoming more common to hear of lay-persons attempting to take various types of legal actions against church officials, for violations of canon law.  Unfortunately, in the minds of many Catholics, this general idea of “legal action” frequently morphs into the notion that they should canonically “sue” someone.  This is particularly (although not exclusively) the case in the United States, which rightly deserves its dubious reputation around the world for being obsessed with lawsuits in general.  Many Catholic Americans understandably take it for granted that if they can vindicate their rights in civil courts, they ought to be able to do the same in church courts as well.

It’s a dangerous assumption!  Catholics who are anxious to “sue” should first of all note that in the Code of Canon Law, the verb doesn’t even exist.  And it’s no coincidence that angry laypersons seeking justice by filing “lawsuits” in the Church generally find that all their efforts eventually come to nought.  That’s not because church officials dealing with their case are  “too liberal,” or “hate women,” or “care only about protecting their fellow clergy.”  On the contrary: such a “lawsuit” is, by its very nature, virtually doomed to fail from its inception.

Here’s why.  Readers who are civil lawyers in any country will appreciate that legal issues are either substantive, or they are procedural.  In other words, if a legal case is to be successful, the plaintiff must not only prove his argument (that’s the substantive part), but he must also have filed the case in the proper way and in the correct court (which is the procedural side of the coin).  Maybe you can conclusively, irrefutably prove that your factual allegations are correct—but if you file your case in a court which has no jurisdiction over the matter, or miss a filing deadline, your proofs won’t matter.  You might have an excellent substantive argument, but you will lose for procedural reasons!

Catholics who try to canonically “sue” their diocese, a Catholic university, the Vatican, etc., almost invariably fail to understand this.  They provide evidence to support their case, and then they can’t fathom why their “suit” is ignored.  They’re convinced they’re substantively on solid ground, but they completely forget to focus also on procedures!

With apologies to Katrina, let’s take a look at the scenario she describes (which is actually quite a common one), and see why her proposed “suit” would necessarily fail.  Imagine that parishioners discover that their beloved pastor is being transferred to another parish (or some other ecclesiastical position), and replaced with a priest who is his polar opposite.  Maybe the unhappy parishioners attempt to discuss the matter directly with the bishop—inviting him to a meeting at the parish, for example—and are rebuffed.  They feel that they’re being ignored and their rights are being violated… so they want to take legal action, and sue the bishop for “abuse of authority” or something similar.

Missing from their argument is any canonical rationale for claiming that (a) the parishioners have been harmed by the bishop, because he has failed to do his legal duty to the parish, and (b) the bishop’s decision can be overruled by somebody (nobody ever seems quite sure who!) that’s “higher-up.”  No pun intended, but such a “lawsuit” hasn’t got a prayer—because it’s devoid of merit on both substantive and procedural grounds.

First off, substantively, there’s absolutely no evidence that the rights of such parishioners have been violated.  It is the responsibility of the diocesan bishop to provide the parish with a priest (cf. c. 515.1), and the bishop in this scenario has done that.  Nowhere in the code is a bishop required to provide parishioners with a priest of their own choosing.  The faithful don’t have to like their pastor; they just have to have one.  And while a bishop who has ignored the parishioners’ request to meet with them may certainly be failing in tact and pastoral sensitivity, such a lack of diplomacy (however reprehensible it might be) is not illegal.

Note that the parish priest himself in such a situation might possibly have a case of his own, if he had been forcibly removed without cause from his office, in violation of canon 522.  But if so, taking recourse against the bishop’s decision still would not involve the parishioners at all, nor would it entail filing any “lawsuit.”  Procedurally, the priest’s actions would follow a different sort of legal path.

It’s also worth noting that if a diocesan bishop were to remove the pastor of a parish, and fail to replace him altogether—leaving the people of the parish without any priest at all—that canonically would be quite another matter!  By definition, a parish is under the leadership of a priest (although in areas with a dire shortage of clergy, bishops can, out of necessity, appoint a deacon or even a layperson instead, c. 517.2).  The Christian faithful do have the right to receive the sacraments and to hear the word of God, as per canon 213; if a bishop were willfully to leave them with no pastoral care whatsoever, their rights would indeed be violated and they could pursue legal avenues (but still not with a lawsuit!) to seek to rectify this.  This could truly be argued to constitute an “abuse,” if the bishop were to fail so gravely in his spiritual duties to the people of his diocese!

Nevertheless, even if, substantively speaking, the parishioners had a solid case, they would still need to follow proper procedures as well.  It’s bewildering to encounter people who declare that they’re “taking the bishop to court,” yet have absolutely no idea which court the bishop would answer to!  Confused Catholics who try to pursue such avenues usually appear to be attempting to file their cases with the diocesan chancery.  Conveniently missing from this equation is any understanding of the fact that the top judge in every diocese is, as per canon 1419.1, none other than the diocesan bishop himself.  Such Catholics are thus trying to sue a judge, by filing a suit against him…in his own court.  How could this possibly work?

In actual fact, taking correct legal recourse in such an unrealistic scenario would not entail filing a “canon lawsuit” at all.  Rather, it would involve, firstly, contacting the bishop, explaining the problem and requesting that he reconsider; and if this failed, then respectfully—but nevertheless urgently—contacting the appropriate authorities in Rome to alert them to the problem.

If it’s still not clear, an imperfect parallel can be made with a completely secular situation.  Imagine that for many years, your neighborhood has had the same postman delivering your mail.  Suddenly the post office transfers him to another route, and you find yourselves with a new man, who isn’t nearly so beloved as the last.  Yes, the new man is delivering your mail; but maybe he’s unpleasant or clumsy, and so you prefer the previous one.  Now imagine that you band together with your neighbors to sue the post office for “abuse of power” in taking away your previous postman.  See how silly that sounds?  Both substantively and procedurally, you haven’t got a case, so you can’t possibly succeed!  The notion of suing the bishop, discussed above, is no less non-sensical, and won’t succeed either.

All of this is certainly not to suggest that a diocesan bishop (or any other church official, for that matter) can do whatever he wants with impunity!  Bishops can, and unfortunately many of them do, take actions which are grievously wrong and illegal—see “Canon Law and False Abuse Allegations, Part I” and “Part II” for some tragic examples of this—and the Church has a procedural system in place to take recourse against them.  Rarely, however, would such recourse involve anything remotely resembling a “lawsuit” or even a courtroom, since the bulk of such legal actions are administrative rather than judicial.  To make a secular comparison again, imagine that an employee at some business has cheated you—and you react by contacting that person’s supervisor, informing him of what’s happened and (politely yet firmly) pressing him to correct the injustice.  In general, this is the correct way to regard the notion of taking legal action against an official in the Church.

By now the reasons for the constant failure of such pseudo-lawsuits in the Church should be clear.  If readers hear of anyone claiming that they’re suing somebody in a church court, they would be well advised to be leery.  (This is particularly true if someone is attempting to raise funds for such an effort.)  Perhaps paradoxically, those Catholics who might have a good substantive argument, but who attempt to vindicate it through spurious procedural means, can inadvertently do their cause a lot of damage—because they can alienate the very church official(s) with the authority to address the problem.

Some might be tempted to object that merely writing respectful letters to Rome doesn’t get anything done.   But to such doubters there is a two-word answer:  Miami, Florida.

Officially, the former Archbishop of Miami, John Favalora, submitted his resignation to the Pope in April 2010, several months before his 75^th birthday.  As was discussed in Bishops, Coadjutors, and Auxiliaries he was legally required to do this by canon 401.1; he appears to have done it a bit early.  That, in and of itself, is not particularly unusual, although it might seem a tad strange that Pope Benedict accepted it so quickly.  Benedict XVI immediately named as Favalora’s successor Thomas Wenski, who had previously been serving as the Bishop of Orlando, Florida.

The full story behind what really happened here is probably known only to God Himself, but it’s quite clear that there really was a story, and it appears to have been initiated by a group of laity in the Miami Archdiocese.  Alleging scandalous homosexual conduct by the then-Archbishop, those in key diocesan positions, and many of the Miami clergy, these lay-faithful carefully documented their allegations and sent them to the correct office here in Rome.  (An account of what happened, accompanied by photocopies of much of the documentation, can be read here, but readers should be forewarned that it is extremely graphic.)

What happened in response?  Again, we’ll never know the complete story, but this much is plain: high-ranking Vatican officials read the documentation.  They took it very seriously—and since it concerned a bishop, they undoubtedly must also have taken it to Pope Benedict himself.  Soon, the Vatican sent an official to Miami for a visit.  The Vatican appears also to have quickly begun looking for a suitable replacement-Archbishop (which understandably took some time).  Eventually, as was just stated, Archbishop Favalora became the Archbishop Emeritus of Miami, replaced by a man who was not his protégé.

It appears, from the evidence, that this would never have happened if the laity hadn’t contacted the Vatican in the first place!  Then-Pope Benedict hadn’t known about the problems in Miami—how could he, if nobody brought such matters to his attention?  The people of the Archdiocese of Miami who cooperated in this effort got big results, by following the proper procedures.  Note that there was no talk of a “canon lawsuit” (although there evidently was at least one lawsuit in civil court), and nobody was complaining stridently about their canonical rights being violated.  They talked; Rome listened.  This is not to say that all the problems in the Archdiocese of Miami have completely evaporated, of course, but a most important first-step was taken, and it seems safe to say that Rome will generally remain “on the alert” to issues in Miami in the future.

As we’ve just seen, the Church really does have ways to appeal decisions, right wrongs, and correct abuses.  Catholics who want to resolve a problem are expected to use them.

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