Congregation for the Clergy, Canonical removal of a pastor, 8 August 2008, Private.
Following an unsuccessful effort to persuade a pastor to resign the diocesan bishop proceeded with the canonical removal in accord with the law. The priest sought recourse from the Congregation for Clergy. Following an initial determination by the Congregation that the removal was invalid due to the denial of the right of defense on the part of the pastor, the diocesan bishop considered the written response of the pastor with the pastor consultants and the Congregation upheld the removal. The removed pastor appealed to the Supreme Tribunal of the Apostolic Signatura. An unofficial translation of the decree of the Apostolic Signatura follows.
Congregation for ClergyProt. N. ____
Whereas, by letter dated 9 May 2006, the Reverend _____, a priest of the _____, made recourse to the Congregation for the Clergy against his removal as Pastor of __ Parish by the Ordinary of that diocese;
Whereas, by Decree dated 27 August 2007, the Congregation upheld the recourse based upon its determination that Father _____ was not given the opportunity to properly exercise his right of defense during the removal process in violations of cann. 221, 1744 & 1745 because the Ordinary did not review the written defense prepared by Father _____ which was subsequently presented to the Congregation;
Whereas, by letter dated 20 September 2007, the Ordinary requested the revocation of the decree upholding the recourse of Father _____ pursuant to Article 135 §1 of the General Regulations of the Roman Curia, and stated that “I would have been more than pleased to have received the defense from [Father _____] myself and taken it into consideration before coming to a decision”;
Whereas, by letter dated 14 December 2007, the Congregation forwarded the written defense of Father _____ to the Ordinary for his consideration;
Whereas, by letter dated 8 April 2008, the Ordinary indicated that he had carefully taken into account the written defense of Father _____;
Whereas, by letter dated 10 July 2008, the Ordinary notified the Congregation that, pursuant to can. 1745 2°, he had weighed the removal of Father _____ with the same parish priests mentioned in can. 1742 §1;
Whereas, the subsequent compliance of the Ordinary with the provisions of can. 1745 indicates that the canonical right of defense of Father _____ has been respected;
NOW, THEREFORE, after having reexamined the acta of the case as well as the subsequent letters of the Ordinary dated 8 April 2008 and 10 July 2008, and pursuant to the provisions of cann. 47 & 1739, the Congregation for the Clergy hereby decrees that:
the Decree of the Congregation dated 27 August 2008 (Prot. N. ___) concerning the removal of Rev. _____ as Pastor of _____ is hereby revoked, and the recourse relative to that removal is hereby rejected because the law has now been followed in procedendo and in decernendo.
Given at the Seat of the Congregation for the Clergy 8 August 2008.
Titular Archbishop of Vittoriana
Mons. J. Anthony McDaid
Supreme Tribunal of the Apostolic SignaturaProt. N. ____
Removal from a parish
Decree1. In February 2002 the Reverend _____ was appointed pastor of _____ in _____ Diocese for a term of six years beginning on the first of March of the same year. A number of difficulties took place in the parish and on March 9, 2006, the diocesan bishop attempted paternally to persuade in writing and orally the Reverend _____ to resign the parish within fifteen days. He briefly pointed out and gave examples of the reasons found in canons 1741, 1°, 3°, and 5°. So that the priest could better understand the reasons, the diocesan bishop gave him a copy of the acts. The following day the judicial vicar informed by letter the Reverend _____ that he could either by March 27, 2006, present his written defense or his resignation. On March 20 the pastor offered his conditional resignation, which on March 29, 2006, the diocesan bishop did not accept, and at the same time removed the Reverend _____ from the office [of pastor]. Objecting in vain, on May 9, 2006, the removed pastor had recourse to the Congregation for the Clergy and presented a full defense, especially by his response to the acts that were given to him on March 9, 2006. Having consulted the diocesan bishop, the Congregation for the Clergy pointed out that the motives for removal appear to be sufficient. On August 27, 2007 [the Congregation] declared the decree of removal invalid because of the denial of the right of defense [because the diocesan bishop did not consider the Reverend _____’s defense, which had not been presented him, cf. Decree, Congregation for the Clergy].
2. Having received the decree, the Reverend _____ sought to return to the parish, but the diocesan bishop forbade it because in the meantime he requested the Congregation for the Clergy to revoke the aforementioned decree. The Congregation transmitted to the diocesan bishop the mentioned written defense by the Reverend _____ so that, having weighed the defense, he could modify his decision or at least expose his mind to the Congregation. Before he had presented his objections, on March 11, 2008, the Reverend Vicar for Clergy of the Diocese notified the Reverend _____ that he had lost his office [of pastor] according to canon 186, and informed him of the possibility in the near future of accepting the position of an associate pastor. Having received the letter of March 12, 2008, the Reverend _____ informed the diocesan bishop that he still held of the office of pastor and referred the matter to the Congregation for the Clergy without a response. Finally the diocesan bishop, having considered the written response of the Reverend _____ with the pastor consultors, replied that the decision of removal of the pastor from his office must remain in force. The Congregation for the Clergy, considered the right of defense to have been protected, invoked canon 1739, and that the decree of March 29, 2006 has been replaced by its own decree of September 9, 2008 “because the law has now been followed in procedendo et decernendo.”
3. The Reverend _____ had recourse against this decision to this Supreme Tribunal, and requested also reparation for the damaged caused by his illegitimate removal from the parish.
Supreme Tribunal of the Apostolic Signatura
4. Having in mind that according to the norm of art. 34 §1 of this Apostolic Tribunal’s proper law (cf. art. 123 §1, Apostolic Constitution Pastor bonus), it pertains to this Supreme Tribunal to consider recourse against singular administrative acts whether those made by the dicasteries of the Roman Curia or those approved by them, whenever someone contends that an act violates a law in decernendo vel in procedendo;
since according to the norms of artt. 24 §2 and 101 of the proper law (cf. art. 123 §2 Pastor bonus) in these cases besides a judgment of the illegality, this Supreme Tribunal can consider, if the recurring party requests it, reparation for damages from the illegal acts;
since according to the jurisprudence of this Supreme Tribunal, this recourse can be made by the person considering him/herself harmed by the mentioned act, as long as there is “juridical damage worthy of consideration, which is truly had — not because of just any benefit or convenience — but because of a personal injury that is direct and actual, based in law and proportionate” (cf. Sent. H.S.T., November 21, 1987, Communicationes, 1988, p. 91);
5. Concerning the object of the recourse, i.e., the decree of the Congregation for Clergy of September 8, 2008, whereby the Reverend _____ contends that he has been harmed by his illegal removal from the office of pastor, one must consider that:
* the Reverend _____ was appointed pastor of _____ for a six year term; this term is continuous and therefore according to the norm of canon 201 §1 does not permit any interruption;
* the hierarchical recourse instituted by the Reverend _____ had only one suspensive effect, i.e., that of canon 1747 §3;
* neither the decision of the Congregation for Clergy of August 27, 2008, declaring his removal invalid nor the petition of the diocesan bishop for the revocation of that decree had any effect concerning the elapse of the aforementioned time;
* with the lapse of the time from the Reverend _____’s notification on March 12, 2008, according to the norm of canon 186, the attacked decree of September 8, 2008, had no juridical effect because the Reverend _____ had already lost the office of pastor and consequently from that decree the asserted harm could not exist.
6. Taking into account for the same reason, there is no basis for the reparation for damages petitioned before the Supreme Tribunal in reference to the act of the Congregation for Clergy that was challenged. However, the Reverend _____ has the right to seek before the curia of the diocese the repair of the asserted harm that may have been caused by this removal [as pastor] on March 29, 2006 according to the norm of law having in mind this decree.
7. Omitting other things that perhaps should be considered;
In virtue of art. 83 §1 of the proper law of this Supreme Tribunal;
Having diligently considered everything, in a meeting of the Congress on January 20, 2010 in the presence of the undersigned Prefect of this Supreme Tribunal,
Recourse should not be admitted and in fact is not admitted for consideration before the college of the Eminent and Excellent Judges because of the lack of foundation.
For the expenses, the security deposited by the recurrent remains in the account of the Supreme Tribunal. The parties will pay their Patrons a fitting honorarium.
Recourse against this decree, backed up by proper motives, is to be proposed to the Eminent and Excellent judges within a peremptory time of ten days from the time it was received (cf. art. 84 in conjunction with art. 26 §2 and 42 §§1-2 of the proper law of his Supreme Tribunal).
This is to be presented for all juridical effects to whom it concerns.
Given at Rome in the office of the Supreme Tribunal of the Apostolic Tribunal on 20 January 2010.
Most Reverend Raymond Leo Burke
Most Reverend Franciscus Daneels, o.praem.
Congregation for the Clergy, Canonical removal of a pastor, 8 August 2008, Private, CLSA, Roman Replies and Advisory Opinions, 2010, 54-58.