Chapter III:  The Collection and Evaluation of Proofs

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The first two chapters considered the standards and causes for the removal of a pastor.  This chapter considers the practical question of the manner of investigating the pastor’s ministry.  A pastor cannot be legitimately removed from office unless there is a cause for removal which is grave, lasting, and proven. {1}  The removal of a pastor requires an investigation of the pastor’s ministry which seeks to establish, by the collection of proofs, whether there is a cause sufficient for removal.  This chapter will consider both the manner of instructing a cause for removal and the different types of proof that might be gathered in the instruction.

Part A:  The Instruction of a Cause for Removal (C. 1742 §1)

Canon 1742 begins with a brief conditional clause, “If the instruction which was carried out has established the existence of one of the causes mentioned in can. 1740.” {2}  The canon begins with the mention of an instruction (instructio) by which the cause is proven.  Although the canon does not describe this instructio in any further detail, it should be understood in light of other parallel references in the code to an instruction. {3}

There is a verbal similarity between canon 1742 §1 and canon 1428 §1.  In the procedure for the removal of a pastor, canon 1742 §1 describes the steps after “the instruction has been carried out (instructione peracta).”  In a trial, canon 1428 §1 describes the role of an auditor who has been designated by a judge to “to instruct the case (ad causae instructionem peragendam).”  Both of these procedures require an instructio which must be carried out (peragere) to establish the facts of the case. {4}  In a trial, the presiding judge (praeses) may instruct the case personally or designate an auditor who is known for his or her good character, prudence, and doctrine.  The auditor collects the proofs according to the mandate of the judge, and hands them over to the judge. {5}  In a procedure of removal, the diocesan bishop takes the place of the praeses. {6}  While the diocesan bishop can theoretically instruct the case personally, it is more likely that he will designate another person of good repute to carry out the instruction.  The delegate who instructs the case should be a priest with some knowledge of canon law, although a degree in canon law is not required. {7}

Several commentators suggest interpreting the instructio in canon 1742 §1 in light of the preliminary investigation (investigatio) mentioned in canon 1717. {8}  At first, there appear to be some significant differences between these two procedures.  The preliminary investigatio takes place before a penal process and examines the actions of the accused to determine whether the accused has committed a delict and is imputable for it.  The instructio in a removal procedure is not part of a penal process and examines a pastor’s ministry to determine whether the pastor should be removed from office.  Even the terminology carries a different connotation since an investigatio connotes the searching (vestigare) for the truth, while an instructio connotes the building (struere) of a case.

However, there are many more similarities than differences between the instructio in canon 1742 §1 and the investigatio in canon 1717.  There is an indirect connection because of the fact that the one who conducts a preliminary investigation has the powers of an auditor. {9}  The mention of an auditor links the investigation in canon 1717 with the role of the auditor in the instruction in canon 1428 §1.  The similarity in terminology between canon 1428 §1 and canon 1742 §1 has already been observed.

Even so, there are other direct similarities between the preliminary investigatio and the instructio in a procedure for removal.  Both procedures are initiated only after there is evidence of something bad, whether a committed delict or poor pastoral ministry.  Both procedures are undertaken to bring about a corrective action, whether through the imposition of a penalty or through removal from office.  Both procedures are under the direction of the ordinary or his delegate who, like an auditor, is responsible for gathering evidence.  While both procedures are relatively unstructured, the delegate in each procedure is confined to a narrow focus when gathering proofs and should not engage in a fishing expedition for unrelated evidence.  Both procedures can take place prior to the notification of the concerned party.  In the penal process, the accused is cited only after the preliminary investigation is completed; {10} in a procedure for removal, the diocesan bishop must inform the pastor of the cause for removal and allow him to inspect the acts of the case only after the instruction of the cause is completed, and a determination has been made that the cause for removal has been proven. {11}  While the diocesan bishop may inform the pastor that he has initiated an instruction for the pastor’s removal, he is not bound to do so. {12}

The instructio in canon 1742 §1 should also be considered in relation to canon 524 and the investigatio into the suitability of a newly appointed pastor.  Before a diocesan bishop appoints a pastor, he is to make a judgment about the priest’s suitability and is to “conduct appropriate investigations (aptasque investigationes peragat).” {13}  The investigatio that is to be carried out (peragere) requires the bishop to hear the vicar forane and anticipates that the bishop may also hear other priests and lay persons before appointing a pastor.  This canon has two implications for the instructio in a cause for removal.  First, the persons who may be consulted before the appointment of a pastor (vicar forane, others priests, and lay persons) may also be appropriate witnesses in the removal of the pastor.  Second, the results of the investigatio prior to the appointment of a pastor may provide a useful benchmark for evaluating the pastor’s ministry in the procedure for removal. {14}  The tensions in a parish may be attributable to a pastor’s detrimental ministry if the parish was relatively peaceful when the pastor was appointed (i.e., at the time of the investigatio described in canon 524), but has become contentious as his removal is considered (i.e., at the time of the instructio described in canon 1742 §1).  Similarly, a pastor’s ineptitude may be demonstrated if his suitability was proven at the time of his appointment, but the investigation for removal showed a loss of his mental or physical abilities.

The Right of Defense and Right to a Good Name

In a penal process, the accused always enjoys the right of defense.  The right of the pastor to challenge the evidence against his ministry in the cause for his removal is similar, but not identical, to the right of defense in a trial.  A removal procedure does not put the pastor personally on trial, but it does subject his pastoral ministry to scrutiny.  When a pastor is removed for harmful or ineffective ministry, his reputation will necessarily suffer.  As the pastor has a right to protect his reputation from illegitimate harm, he necessarily has a corresponding right to defend his pastoral ministry. {15}

The rights of the pastor to defend his ministry are analogous to the rights of the accused in a penal process.  In a penal case, the accused is permitted to know the charge against him, examine the proofs, challenge the evidence, and present his own contrary evidence.  In a removal case, the pastor can claim the exercise of corresponding rights.  The pastor has the right to be informed of the causes and reasons for removal at the time of the bishop’s paternal persuasion.  The pastor has the right to inspect the proofs and propose a defense, if he objects to the cause for removal. {16}

Whether or not the diocesan bishop has chosen to inform the pastor that he has initiated an instructio into the pastor’s possible removal, care must be taken to protect the pastor’s right to defend his ministry.  During the instruction of a contentious trial, the judge will make several decisions regarding proofs that are to be accepted and the proofs that are to be rejected.  In each of these decisions, the parties have the right to raise incidental questions when they disagree with the judge’s decision.  These questions are to be decided by the judge as quickly as possible (expeditissime), and do not admit of appeal. {17}  Even though the judge’s decision is final, a judge must weigh his decisions prudently and fairly in order to avoid irremediable nullity of sentence should his decisions result in the denial of the right of defense. {18}  If the pastor is aware of the instructio into his possible removal from office, the delegate should carefully consider any actions or exceptions raised by the pastor in order to protect his right of defense.  The delegate should decide any incidental questions raised by the pastor expeditissime and may decide to accept or reject a proof even over the pastor’s objections.  On the other hand, if the pastor is unaware of the instructio into his removal, the pastor will not be able to raise any incidental questions during the instructio.  In this case, the diocesan bishop must carefully consider the objections which the pastor makes in his written report after he has seen the acts. {19}  The probative value of the proofs must be weighed, giving carefully consideration to the objections raised by the pastor, before reaching a decision about his removal. {20}  Whether the pastor is informed of the instructio or not, his right of defense must be respected.

In the instructio of a cause for removal, the delegate must take care not to endanger the pastor’s good name. {21}  In practice, the care required to avoid harming the pastor’s name will likely be one of the most difficult aspects of the instructio.  The pastor’s good name may already be impaired, especially if the pastor’s removal is considered in light of the loss of his good reputation.  The initiation of an instructio into the removal of the pastor will likely cause the pastor’s reputation to suffer even more.  Nevertheless, the delegate must proceed with caution to avoid making the situation worse because of the manner in which he conducts his instructio.

Part B:  The Collection of Proofs

The delegate’s responsibility in the instructio is the collection of proofs.  The collection of proofs is governed by canons 1526-1586, although some of the provisions of these canons must be adapted in the context of an administrative procedure for the removal of a pastor.  In a trial, an auditor who instructs a case functions in the place of the judge and acts according to his mandate when collecting proofs.  The auditor decides what proofs are to be collected and may exercise the prerogatives attributed to the judge in the canons on proofs. {22}  Likewise in a procedure for removal, the delegate who investigates the ministry of the pastor functions in place of the diocesan bishop and acts according to the bishop’s mandate.  The delegate determines which proofs are to be collected.  Because the delegate has the powers of an auditor, any powers attributed to the judge in canon 1526-1586 should also be applied to the delegate. {23}  If the diocesan bishop has not given specific directions to the delegate, the delegate may exercise his own prudential judgment when instructing a cause for removal.

The Declarations of the Pastor (Cc. 1530-1538)

The judge can always question the parties in a trial, and so the delegate has the right to question the pastor about his ministry. {24}  While the diocesan bishop is not obligated to inform the pastor that he has opened the instruction of the cause for his removal, the pastor will learn of his possible removal if the delegate decides to question him.  In a penal process, the accused cannot be compelled to take an oath or confess a delict when giving testimony.  In a procedure for removal, while the pastor is bound to answer the delegate’s questions truthfully, the delegate should not compel the pastor to take an oath if the pastor is unwilling nor should he compel the pastor to answer a question that the pastor believes will incriminate him. {25}  If the pastor refuses to respond to a question, the diocesan bishop may determine what inference should be drawn from his silence. {26}

The delegate is not required to hear the pastor in the course of his instruction, as the pastor will have the opportunity to defend his pastoral ministry and present any exculpatory proofs after he reviews the acts of the case.  However, the delegate should hear the pastor during his instruction when it will better protect the pastor’s right of defense.  In some cases, the delegate may wish to hear the pastor in order to better understand the cause for removal.  For example, if many parishioners have developed an aversion to the pastor because of a decision he made, it may be helpful to ask the pastor about his motives and actions to better understand whether a true and lasting aversion exists in the parish.  On the other hand, the delegate may be obligated to hear the pastor regarding a factual matter that must be established in the course of the instruction or regarding a detail that cannot be established without the pastor’s testimony.  For example, if a pastor is infirm, it may be necessary to inquire about the pastor’s prescription medication and his medical prognosis.  If a large amount of money is missing from the parish account, it may be necessary to question the pastor about this discrepancy in order to discover how the money was spent and whether or not the expenditure was legitimate.

When a pastor’s testimony is being taken, he may voluntarily make a statement against his own interests or against his pastoral ministry.  In a trial, a distinction is made between a judicial confession (a statement made against one’s own interests before a judge concerning the matter of the trial) and an extra-judicial confession (any other statement made against one’s own interests). {27}  Because the investigation in the removal of a pastor is part of an administrative procedure and not a judicial process, it is not proper to speak of a “judicial” versus “extra-judicial” confession in this context.  Rather, an analogy may be drawn with a confession made in the context of the instruction (an “instructional” confession) and a confession made prior to the instruction (a “pre-instructional” confession).  Even if no declaration is sought from the pastor in the course of the investigation, it is still very likely that some “pre-instructional” declaration of the pastor will be relevant to the case.  Before a diocesan bishop begins the procedure to remove a pastor, it is probable, and in some cases mandatory, that the bishop previously intervene before removing the pastor. {28}  Any declarations made by the pastor during this time, whether oral or written, may later be introduced into the acts in the cause for his removal.  The diocesan bishop must weigh the probative value of these declarations, considering the time in which the pastor made the statement.  If a pastor made one statement before his removal was contemplated (tempore non suspecto) and another statement in view of his possible removal (tempore suspecto), the diocesan bishop can give one statement greater probative value based on the circumstances of each statement. {29}

Proof through Documents (Cc. 1539-1546)

Proof by means of documents is always permitted in any kind of trial, and may be useful in the procedure for the removal of a pastor. {30}  Documents may have varying levels of probative value.  A public document, whether civil or ecclesiastical, is considered to be fully probative with respect to what it directly and principally affirms.  Other documents, which are private, must be evaluated to determine their probative weight.  The probative value of a document depends, in part, on its authenticity. {31}

The delegate in a procedure for removal might collect several kinds of documents.  Correspondence between the pastor and diocesan officials might be useful to establish that the diocesan bishop had warned a pastor about his violation or negligence of his pastoral duties, or had proposed a solution to a pastor’s poor financial administration.  This correspondence might also indicate the pastor’s physical condition, state of mind, or approach to parish difficulties, and thereby provide evidentiary support for one of the causes for removal.  Any statements made by the pastor in his correspondence with diocesan officials have the force of proof of an extra-judicial (or “pre-instructional”) confession. {32}

Correspondence from parishioners is valuable in evaluating any of the five causes for removal because the parishioners provide direct knowledge of problems through their regular participation in parish life.  The diocesan bishop must weigh these letters to determine the validity of the parishioner’s concerns, as the letters may be the result of a few disgruntled persons attempting to inflame a relatively insignificant problem.  The authenticity of these documents determines their creditability, and so anonymous letters are of very little value because it is not possible to verify the information in the letter with its author.  The delegate may find letters from parishioners most useful in providing him with a point of departure for his inquiry.  The delegate will strengthen the case against the pastor if he can confirm the accusations in the letters through additional evidence.

Parish bulletins may be valuable in an inquiry into any of the five causes for removal.  Any letters “From the Pastor’s Desk” printed in the bulletin may indicate the pastor’s approach to doctrine or Church authority and thereby demonstrate the pastor’s disturbance of ecclesiastical communion.  Announcements in the bulletin may give evidence of the pastor’s failing mental or physical health.  Defensive responses from the pastor in the bulletin may be a sign of a growing aversion to his ministry.  The bulletin may give evidence of a pastor’s negligence or violation of his duties if he had been illegitimately absent from his parish, or if the pastor had regularly cancelled Masses, confessions, or other services.  The bulletin may contain financial reports that can be used to demonstrate the pastor’s poor administration.

The minutes of the parish pastoral council may testify to problems, such as a deterioration of parochial communion, a growing aversion to the pastor, or a dissatisfaction with the pastor’s negligent service.  The minutes of the parish finance council and other financial reports may demonstrate poor administration.  These minutes and reports are useful, especially if they demonstrate that the pastor reported incorrect financial information, perhaps due to his incompetence or even due to his willful concealment of the parish’s financial woes.

Other types of documentary proof may also be considered.  Newspaper articles may indicate troublesome parish activities, tensions in a parish, or a pastor’s scandalous conduct.  Medical documents may provide proof of a pastor’s poor physical or mental health.  Legal documents may provide proof of harm to a parish caused by poor administration.  The annual parish reports made to the diocese may provide evidence of a pattern of ineffective ministry.

Witnesses and Testimonies (Cc. 1547-1573)

The testimony of witnesses is allowed under the direction of the judge in any kind of case and may also provide valuable information in a procedure for removal. {33}  Anyone who can offer relevant testimony may serve as a witness unless they are excluded by law. {34}  These witnesses might include other clergy, and especially the vicar forane. {35}  The vicar forane may be a particularly useful witness because he is charged to exercise vigilance over the parishes in his vicariate, and has a responsibility of performing parish visitations. {36}  The vicar forane enjoys a high degree of credibility as a qualified witness when he testifies to those things done in performance of his duties. {37}

The selection of some parishioners as witnesses will also be useful because, in many cases, the parishioners will be able to give the best testimony as first-hand witnesses to the ministry of their pastor.  José María Díaz Moreno goes further to argue that parishioners have a right to be heard in cases involving the removal of their pastor. {38}  However, the taking of testimony from parishioners may still be problematic.  A parishioner might be unwilling to give testimony against his or her pastor because of a fear of retribution from the pastor, or of rejection by fellow parishioners.  A parishioner with these anxieties may not wish to testify. {39}  When examining parishioners, the delegate must exercise great caution to avoid injuring the good name of the pastor. {40}  To this end, the delegate should carefully pose questions that are “not deceitful or deceptive or suggestive of a response, free from any kind of offense, and pertinent to the case being tried.” {41}  The delegate can inquire about the parishioner’s perception of the pastor, but any criticism of the pastor should arise from the parishioner’s free response and not from any bias in the delegate’s questions.

The choice of parishioners to serve as witnesses is another difficulty.  The delegate can limit the number of witnesses and certainly does not need to hear every parishioner. {42}  He may choose parishioners because of their longstanding membership in the parish, their prudence, their roles of leadership, or their knowledge of the cause for removal.  The delegate may select some members of the pastoral council or finance council, the chairpersons of parish committees, or the coordinators of various ministries in the parish or parochial school.  The delegate may also select some parishioners who have written letters to the diocese about the pastor’s ministry.

In a trial, the parties themselves have a right to introduce witnesses, be informed of the list of witnesses, and object to a witness. {43}  If the pastor is aware that an instruction has been initiated, he may raise his objections which the delegate should decide fairly and as quickly as possible (expeditissime).  The decision of the delegate does not admit of appeal.  If the pastor is unaware of the instruction, he may raise his concerns and introduce statements from his own witnesses when he submits his written report after the delegate has completed his instruction. {44}  If the pastor believes that his right to defend his ministry has been denied, he should include his arguments in his written report and in any petition for subsequent hierarchical recourse.

The delegate should establish the identity and the credibility of each witness.  If the witness is a parishioner, he may ask about the parishioner’s length of membership in the parish, knowledge of the parish, and level of voluntary participation in the life and activities of the parish. {45}  The testimony of a witness is more trustworthy if he or she possesses a good reputation, or is chosen because of an official position that he or she holds. {46}  In the case of removal due to the loss of the pastor’s good reputation, the delegate must verify that any parishioner who is heard is also upright and responsible (probus et gravis) in forming judgments. {47}

The delegate chooses the location to hear the witnesses. {48}  Therefore, the delegate may hear the witnesses at his or her parish because of its convenient location, even if the pastor objects to this proposal.  The delegate may take testimony in the context of a pastoral visitation of the parish, although he must guard against harming the pastor’s good name and should avoid creating a cloud of suspicion over the pastor through his instruction of the case. {49}  The pastor does not have a right to be present when the witnesses are examined. {50}  If possible, the delegate should have a notary present when taking testimony. {51}  The witnesses should not bring in notes unless they are necessary, such as in the case of a witness who is questioned about poor administration and must have financial reports available in order to testify. {52}  The delegate should inquire about the pastor’s words, actions, and inactions in the parish.  He should inquire about the circumstances, the source of the witness’s knowledge, and the time that these events occurred. {53}

Experts (Cc. 1574-1581)

The testimony of experts may be useful in a trial and is required in certain cases of incapacity to contract marriage. {54}  The delegate may likewise determine that the use of an expert is needed in a specific cause for removal.  If the delegate appoints an expert, he determines the matters the expert is to examine. {55}  In a trial, the parties have a right to be informed of the use of an expert, object to the selection of an expert, and designate their own experts. {56}  If the pastor is aware that an instruction has been initiated, he may raise his objections during the instruction which should be settled by the delegate expeditissime.  If the pastor is unaware of the instruction, he may raise his objections and introduce statements from his own experts when he submits his written report after the instruction is completed. {57}

There are several possible circumstances in which an expert would be useful in a procedure for removal.  If the cause for removal is a disturbance of ecclesiastical communion, a theological expert may be helpful in determining whether a pastor’s teachings are consonant with the teachings of the Church.  If the pastor is inept or infirm, a doctor or psychiatrist may testify to the pastor’s physical or mental health and his ability to fulfill his pastoral duties.  If there is an aversion to the pastor, a psychologist may offer testimony about the cause or the validity of the aversion.  If a pastor has shown poor administration in temporal affairs, an accountant might examine the financial records of the parish, or a civil lawyer might offer an opinion about the legal liability to the Church from the pastor’s actions.

Judicial Examination and Inspection (Cc. 1582-1583)

Like a judge in a trial, the delegate may visit a place or inspect an object, if it is useful.  As noted above, the diocesan bishop can appoint the delegate to conduct a pastoral visitation of the parish.  However, in the context of the removal of a pastor, the visitation described in canons 1582 and 1583 is not pastoral but rather for the sake of gathering proofs related to the cause for removal.  Under these canons, the delegate can visit a place or inspect an object in order to gather evidence for his report.  The delegate may require by decree that certain items be made available for his inspection. {58}

The delegate may wish to visit the parish to inspect a variety of things.  He may inspect the parish bulletins for the reasons given under documentary proofs.  He may inspect the financial records of the parish in a case of poor administration.  He may inspect the sacramental books or the record of Mass stipends if this inspection could demonstrate that the pastor has violated or neglected his sacramental duties. {59}  If an aversion to the pastor is due to an imprudent building project, such as an overly elaborate expansion or improvement of the rectory, the delegate may wish to examine the project.

Presumptions (Cc. 1584-1586)

A presumption is a probable conjecture about something that is unknown.  Presumptions are legal if they are established in the law, and human if they are formulated by the judge. {60}  Presumptions are not proofs properly speaking, but they are useful as an indispensable tool that allows a judge to reach moral certitude in a trial.  In this sense, presumptions can constitute “an ‘indirect’ rather than a direct form of proof.” {61}

There are no explicit legal presumptions in the code relevant to the removal of the pastor, although a legal presumption may be inferred from some of the canons.  Pastors must possess stability as a characteristic of their office defined by law. {62}  Because he possesses stability, the pastor has a right to continue in office until he loses his office in accord with the norm of law.  The bias of the law favors the pastor remaining in office when there is doubt about his harmful or ineffective ministry.  Therefore, as a corollary to the stability of the pastor, there is a presumption implicit in the law that a pastor’s ministry is useful.  This presumption can admit of contrary proof that the pastor’s ministry is harmful or ineffective. {63}  This implicit presumption is strengthened by the fact that the pastor was judged to be suitable for his parish at the time he was appointed. {64}

The diocesan bishop may formulate other human presumptions when judging the pastor’s ministry.  For example, under the third cause of aversion to the pastor, the diocesan bishop may presume that aversion is present if some members of the faithful withdraw from the life of their parish, fail to attend Mass, refuse to confess to their pastor, or neglect to present their children for baptism or for catechetical instruction. {65}  The use of a human presumption may help the diocesan bishop conclude from individual signs of aversion that the pastor’s ministry has become gravely harmful or ineffective.  The diocesan bishop may presume that aversion will not quickly cease if the negative reactions of the parishioners remain consistent or steadily grow over a specific period of time.  Under the fourth cause of violation or neglect of pastoral duties, the bishop may presume that a pastor persists in his neglect if his behavior after a warning has not changed or has become worse over a specific period of time.  Under the fifth cause of poor financial administration, the bishop may presume that no other solution may be found to a pastor’s poor administration if the pastor rejects a remedy offered by the bishop, or if a remedy is implemented but does not solve the problem.

The Purpose of the Proofs

The delegate in the instruction of a cause for removal must proceed very carefully with the collection of proofs.  He should consider several important values as he proceeds.  The delegate should focus first of all on proofs that are useful and necessary to construct a case for removal. {66}  Proofs are not useful unless they demonstrate the harmful or ineffective ministry of the pastor.  Second, the delegate must carefully avoid harming the good name of the pastor being investigated.  This fundamental requirement of justice demands that the delegate proceed delicately.  Third, he should collect sufficient proof to demonstrate the pastor’s detrimental ministry.  By remembering the standard for removal, the delegate should not fail to gather adequate proof lest the cause for removal remain in doubt.  Neither should the delegate gather excessive proofs, as unnecessary probing may not help the instruction, but only serve to amplify the sense of mistrust or skepticism on the part of the parishioners.  A delegate who discharges his duties with care, diligence, and prudence works ultimately for the good of souls.  His judicious instruction may avoid an injustice if he can demonstrate that the removal of the pastor is not warranted.  On the other hand, when removal is warranted, the careful collection of proofs may not only demonstrate that the pastor should be removed, but may even help the pastor to accept this fact.

Continue on to Conclusion

Chapter Endnotes

1. Daneels, 296.  This passage was previously cited in the first chapter, footnote 11.

2. C. 1742 §1: “Si ex instructione peracta constiterit adesse causam de qua in can. 1740.”  This canon goes on to describe the procedural steps in the removal of a pastor after the instruction.  The consideration of these procedural steps is beyond the scope of this thesis.

3. C. 17.

4. Marzoa, 2119.

5. C. 1428 §§1-3.

6. Only the diocesan bishop is competent to decide the removal of a pastor from ministry (see c. 1740).  The entire procedure for removal depends upon his judgment.

7. There is no explicit requirement that a priest be chosen to instruct a case for the removal of a pastor.  However, in any case in which a priest’s reputation might be harmed, the notary must be a priest (c. 483).  By extension, it is fitting for the instructor in a case of removal to be a priest.  See Barbara Anne Cusack, “Title III: The Internal Ordering of Particular Churches (cc. 460-572)” in New Commentary on the Code of Canon Law (hereafter New Commentary), ed. John P. Beal et al. (New York/Mahwah, NJ: Paulist Press, 2000) 637.  A delegate who has some knowledge of canon law will be able to insure that the procedure is carried out correctly.

8. Marzoa, 2119.  Sweeny, 217.  Grocholewski, 223.  Thomas J. Paprocki, “The Method of Proceeding in Administrative Recourse and in the Removal or Transfer of Pastors (cc. 1732-1752)” in New Commentary, ed. John P. Beal et al., 1841.  While each of these authors advocates interpreting the instructio in light of canon 1717, only Marzoa advocates also interpreting the instructio in light of canon 1428 §1.

9. C. 1717 §3.

10. The citation of the accused is not mentioned in the preliminary investigation (cc. 1717-1719) but is required in an extra-judicial administrative process (c. 1720) or a judicial process (see c. 1723).  The citation of the accused is also required before imposing a cautionary restriction on the accused (c. 1722).

11. Cc. 1742 §1 and 1745, 1º.

12. Paprocki indicates that the diocesan bishop may inform the pastor about the investigation into his possible removal, although this is optional.  See Paprocki, 1848.

13. C. 524.

14. The investigation before the appointment of the pastor should consider the state of the parish, the needs of the parish, and the desired qualities in the new pastor.  See Coccopalmerio, De Paroecia, 120.

15. C. 220.

16. Cc. 1742 §1 and 1745, 1º.

17. Cc. 1527 §2, 1589 §1, and 1629, 5º.

18. C. 1620, 7º.

19. C. 1745, 1º.

20. The diocesan bishop must weigh with two other pastors both the proofs which support the removal of the pastor and the pastor’s written defense before making a decision for or against removal (c. 1745, 2º and 3º).

21. Cc. 220 and 1717 §2.  This position is held by Daneels and Sweeny.  See Daneels, 297, and Sweeny, 217.  All those involved in a procedure for removal were bound by secrecy under the 1917 code (CIC 1917, c. 2144 §1).

22. C. 1428 §3.   Dignitas Conubii clarifies this point for matrimonial cases.  The term “judge” is to be understood as also referring to the auditor.  See Pontifical Council for Legislative Texts, Instruction Dignitas Conubii Art. 155 §2 (Vatican City: Libreria Editrice Vaticana, 2005) 126.

23. The noun iudex appears 58 times in canons 1526-1586.

24. C. 1530.

25. Cc. 1531 §1 and 1728 §2.  Cox, Craig A., “The Contentious Trial (cc. 1501-1670)” in New Commentary, ed. John P. Beal et al., 1671.

26. C. 1531 §§1 and 2.

27. C. 1535.  Cox, 1673.

28. A warning is required before removing the pastor who neglects his parochial duties (see c. 1741, 4º).  Another remedy must be sought before removing a pastor for poor administration (see c. 1741, 5º).

29. C. 1537.  Cox, 1673.  A judge in a marriage case may give greater probative weight to documents written at a non-suspect time.  See Dignitas Conubii, Art. 186 §1.

30. C. 1539.

31. Cc. 1541-1544.  See also c. 1536 §2.  Cox, 1675.

32. C. 1542.

33. C. 1547.

34. C. 1549.  Clerics and other officials who are bound by professional secrecy are exempt from testifying (c. 1548 §2, 1º).  Those under the age of fourteen are generally not permitted to testify (c. 1550 §1).  No information learned from the confessional can be admitted as testimony (c. 1550 §2, 2º).

35. Romita, 439.  Parizek, 1040.  Romita notes that Ecclesiae Sanctae encourages a diocesan bishop to hear the vicar forane in the case of the removal of a pastor.  See Paul VI, motu proprio Ecclesiae Sanctae I 19 §2, August 6, 1966, AAS 58 (1966) 769.  The advisory role of the vicar forane in the bishop’s appointment of a pastor was mentioned earlier in this chapter (see c. 524).

36. A vicar forane has a duty and a right to coordinate pastoral activities in his vicariate, to see that clerics perform their duties diligently, and to see that discipline is observed in liturgical and temporal affairs (c. 555 §1).  The vicar forane may be involved in helping a pastor deal with problems in his parish (c. 555 §2, 2º).  The vicar forane has an obligation to visit the parishes in his vicariate (c. 555 §4).  Each of these duties make the vicar forane an ideal witness to testify to the ministry of the pastor.

37. C. 1573.

38. José María Díaz Moreno, “Derechos de los fieles y vida parroquial” in La Parroquia desde el Nuevo Derecho Canonico, ed. Julio Manzanares (Salamanca: Universidad Pontificia, 1991) 151.  The code admits the possibility that the diocesan bishop may wish to consult with lay persons before the appointment of a pastor (c. 524).  Moreno argues that this language should be stronger as the faithful have a right to make known their needs and opinions to the pastors of the Church (c. 212 §§2 and 3).  Because a pastor may only be removed for harmful or ineffective ministry, Moreno argues that the faithful who suffer from the poor ministry should have the right to make known their opinion of their pastor in a procedure for his removal.  Moreno suggests that the investigation for the removal of a pastor should at least consult the parish pastoral council mentioned in canon 536.  Coccopalmerio also mentions consultation with the parish pastoral council, though only in the context of the appointment of the pastor.  See Coccopalmerio, De Paroecia, 120.

39. C. 1548 §2, 2º.  Witnesses are exempted from testifying in a trial when they believe their testimony will cause them or their relatives to suffer ill repute, dangerous hardships, or other grave evils.

40. See c. 1717 §3.

41. C. 1564: “[Interrogationes sunto]. . . non captiosae, non subdolae, non suggerentes responsionem, remotae a cuiusvis offensione et pertinentes ad causam quae agitur.”

42. C. 1553.

43. Cc. 1551, 1554, and 1555.

44. Canon 1745, 1º only gives the pastor the right to submit a written report.  If the delegate rejects any witnesses proposed by the pastor, the pastor may nevertheless include statements from his witnesses in his written report.  The 1917 code anticipated that the pastor might ask that some witnesses be heard, although the ordinary was not bound to hear them (CIC 1917, c. 2145 §1).

45. C. 1563.  The delegate is to establish the identity of the witness, and inquire about the relationship of the witness to the pastor.

46. C. 1572, 1º.  Cox, 1690.

47. C. 1741, 3º.

48. C. 1558 §§1 and 3.

49. Grocholewski, 223.  The diocesan bishop has the obligation of visiting his parishes, which can be done through another presbyter (c. 396 §1).  If the diocesan bishop judges this to be a prudent way to assess the ministry of the pastor in question, he may appoint the delegate or another priest to conduct a parish visitation.  The appointment of the delegate to conduct a pastoral visitation is separate from his appointment to instruct the cause for removal.

50. C. 1559.

51. C. 1561.  A notary was explicitly required under the 1917 code (CIC 1917, c. 2142).

52. C. 1566.

53. C. 1563.

54. C. 1574.   Dignitas Conubii, Art. 203.

55. Cc. 1574 and 1577 §1.

56. Cc. 1575, 1576, and 1581 §1.

57. C. 1745, 1º.  In footnote 44, it was observed that the pastor can submit witness statements in his written report.  Similarly, if the delegate refuses to hear an expert designated by the pastor, the pastor can still include statements from his own experts in his written report if it is appropriate.  An expert appointed by the delegate may be allowed to view the acts of the case before giving his report.  However, when preparing his defense, only the pastor and his advocate have the right to review the acts in the procedure for his removal.  An expert designated by the pastor but not accepted by the delegate cannot claim the right to inspect the acts.

58. C. 1582.  See Cox, 1697.

59. The inspection of the parochial registers is one of the duties of the vicar forane (c. 555 §1, 3º).

60. C. 1584.

61. Cox, 1697.

62. C. 522.  Romita, 437.

63. Cox, 1697.

64. Cc. 521 §3 and 524.  When the diocesan bishop appoints a pastor, he must judge the priest to be suitable not only for the office of pastor (c. 521 §3), but also suited to the needs of the parish to which he is appointed (c. 524).

65. de Sancristóval, 409.

66. Canon 1527 permits the collection of any type of proof in a case, provided it is useful.

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