Tribunals can handle processes in addition to marriage nullity causes. It is the church's court. Although it functions differently than civil courts, it can handle a variety of matters just like civil courts.
It can handle disputes (e.g., a secretary alleges that she was unjustly fired by a pastor). This is not common due to the fact that people don't know this, usually if they think of taking legal action they go to a civil court, plus the diocesan tribunal does not have any real enforcement ability except against clergy or religious.
The tribunal can handle penal processes. For example, it can process a dismissal from the clerical state (e.g., if a priest is accused of sexual abuse of a minor) or it can impose an excommunication.
This is the basic process for handling a penal matter:
1. A preliminary investigation is conducted by a local ordinary (by the bishop, vicar general, or another episcopal vicar). This does not mean that the ordinary must conduct it personally, only that he oversees it. An ordinary exercises executive power.
2. Canon 1722 states: "To prevent scandals, to protect the freedom of witnesses, and to guard the course of justice, the ordinary, after having heard the promoter of justice and cited the accused, at any stage of the process can exclude the accused from the sacred ministry or from some office and ecclesiastical function, can impose or forbid residence in some place or territory, or even can prohibit public participation in the Most Holy Eucharist." It seems that this canon in part has been invoked in what the diocese is calling "administrative leave."
3. Once the preliminary investigation is concluded, then the ordinary must determine how to proceed: whether to dismiss the accusations, whether to impose a penalty or some lesser penance or warning by executive power, or whether a judicial process must be initiated.
4. If the ordinary decides that a judicial process must be initiated, then he must direct the promoter of justice to initiate a tribunal process. Only at this stage is the tribunal involved. The promoter of justice functions as the petitioner and the accused as the respondent. Three judges must serve in the process with one of them as presiding judge.
5. The tribunal then accepts the promoter of justice's petition, cites the respondent, determines the joinder of issues, and gathers evidence (in addition to whatever was gathered in the preliminary investigation). The tribunal must be careful to protect the right of the accused to defend him or herself. All of this takes time.
6. Finally, the tribunal reaches a decision and either dismisses the process or imposes a penalty.
With Msgr. McAuliffe, it seems that they are still at the stage of the preliminary investigation. What is unclear is, if theft has taken place, whether the police will also be involved. What typically happens is that when criminal actions are taken by civil authorities, usually the ecclesiastical process is put on hold until the civil process is complete. Often, the results of the civil criminal investigation is taken as evidence in the tribunal process.
I am glad you did the research to correct the previous comment. I was going to do the research myself as that did not sit well with me.
ReplyDeleteMary
Hi, this is becoming interesting. I too am a canon lawyer and while I respect what this canonist wrote, I am not entirely clear what he/she is posting here. Is this canonist assuming that the Las Vegas Tribunal would pursue dismissal of the clerical state against Msgr. Kevin if he is guilty of financial irregularities? As a canonist who represents over 50 clerics currently, while technically the law permits this, practically speaking this will not happen in Las Vegas or in any tribunal in the U.S. There is no requirement that financial irregularities (no matter how large) be handled by the local diocesan tribunal through a canonical trial process. Furthermore, bishops whenever possible, will try and address situations such as these through decrees - nothing judicial at all. Instead, the accused then has only the possibility to challenge the bishop's decree via hierarchical recourse. If the bishop believed the matter warranted it, he could transfer the whole file to Rome and request dismissal from the clerical state by the Holy See, but the Holy See would want to see the gravity of the situation clearly laid out. So, while I theoretically agree with what this canonist wrote, his/her opinion of how this may proceed will most likely not occur for the aforementioned reasons. In addition, even if by some rare possibility that this matter was to be handled by a judicial process (which the law does not require) then the Bishop would request that the Judicial Vicar find clergy to sit as canonical judges most likely from outside not only the diocese, but the ecclesiastical region as well to avoid any appearance of a conflict of interest in the matter. In either event, Msgr. Kevin has the presumption of innocence and has a right to a fair process at Church law and a right to a good reputation, unless and until an ecclesiastical determination PROVES that some wrong doing occurred.
ReplyDeleteWithout knowing who this other canonist is, I hope I did not step on any toes!
Also, by way of full disclosure, I have worked for the Diocese of Las Vegas for seven years as a canonist and in a parish, (2000-2007) and wish only that all involved be treated fairly and equitably, be it accuser(s) (if there are any), Msgr. Kevin and anyone else involved. Only by following canon law scrupulously can a just and proper result take place.
Finally, this blogsite is quite interesting! A friend sent me a link earlier today from a canonist wondering if I was the canonist. Well, I was not THAT canonist, but I am this canonist. :) Peace and blessings everyone.
Robert JB Flummerfelt, JCL, JD, Esq.
www.canonlawservices.com
Mr. Flummerfelt:
ReplyDeleteIt is true that the bishop is not required to use a judicial process, although he could choose to.
The canonist I quoted regarding the Tribunal process for this post was simply replying to my question regarding whether Las Vegas Tribunals handle anything but marriage.
Someone had stated in previous comments that the Tribunals in Vegas handle only marriage issues. Therefore, this information is simply provided to demystify Tribunals and to take an inside look at the process - it does not assume that this is what will necessarily take place with Fr. Kevin.
Nowhere in this post does it state that the canonist believes this is necessarily how it will go down, nor that Fr. Kevin will be dismissed from the clerical state.
I hope this answers your concerns.
Dear Church Militant,
ReplyDeleteI appreciate all that you said. I think it then boils down to a distinction without a difference!
As to the issue of whether the Las Vegas tribunal processes any cases other than marriage nullity petitions, in my 7 years in the tribunal, only marriage-related matters were adjudicated.
No allegations of graviora delicta, no allegations of financial impropriety, no judicial process for a non-marriage related matter occurred that I am aware of.
However, I have not donned the door of the Las Vegas tribunal in four (4) years and with a different Judicial Vicar, the tribunal may be handling non-matrimonial matters as your canonist friend rightly points out the tribunal has the authority to do.
Thank you for your commitment to the Church and magisterium. This is a neat blog you have.
Peace and continued blessings,
Bob