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July 26, 2005

Comments

BillyHW

Who appointed this guy again?

Gerard E.

This could be messy.

Tony Miller

Cardinal Mahony,
Confession is good for the soul.

Dale Price

Our man in L.A.

The answer is: The Year of Our Lord 2011.

Touchy Tech

Manony will not be able to put this off forever. He will have to turn this evidence over someday, and I bet Rome has his replacement in mind.

Pat Gonzalez

So what else is new? From everything I've read about this man, he's not fit to be a dog-catcher, let alone a priest or Bishop. I'm glad I don't live in LA, but feel sorry for those who do.

Desert Chatter

The history of the Situation will not be complete until we see the video of a certain someone being frogwalked in cuffs out of his chancery.

John Bianco


Despite the fact its the largest see in the US and automatically comes with a red hat, what sane man would want to be the Archbishop of LA at this point? The legal mess it is in will takes years to sort out, the archdiocese has had a near hetrodox mindset among if lay and clerical leaders that has been dominant since Cardinal Mahoney has been appointed and it has almost no vocations to speak of(of the 5 priests ordained this year, only one was born in the US and 2 were over 60). Who would want to deal with this mess!

Cardinal Mahoney will have much to awnser for, but sadly it seems he will be in charge for another 6 years.

Nancy

And the argument that the Pope is our shepherd, and cares what happens to us, goes how?

tcreek

The California courts vs Cardinal Mahoney.

For very different reasons, a difficult choice to make.

Ed the Roman

Isn't it odd that a prelate so...flexible with certain traditions nails his colors to the mast on the incompetence of secular courts to try clergy?

reluctant penitent

Yes Nancy, JPII appointed Mahony because he wanted as many children as possible to be sexually abused and he wanted the abusers to avoid punishment. I think you've got the man's character spot on. But why? My theory is that he was jealous of Pius XII's success in aiding the genocide of Jews, so he probably wanted to top him in some way. What's your theory?

Ken

The morning drive-time radio types in LA are having a field day with this:

1) "Cardinal-pedophile Mahoney". It's become common to append "-pedophile" to any Church title -- "Bishop-pedophile", "Monsignor-pedophile", "Father-pedophile", etc.

2) Conventional Wisdom from morning drive-time: Catholics are against all sex -- except for priests bungholing altarboys as often as possible.

3) And the latest: That money in the collection plate each Sunday goes to lawyers protecting pedophiles.

This wasn't helped by what happened in my parish a few weeks ago. Our auxilliary bishop read a prepared statement regarding the unspecified scandal and then made himself very scarce after Mass. I'm starting to wonder if Jack Chick was right about Popery after all...

Touchy Tech.

There are many great ortodox Catholics in LA who are quietly keeping the flame of faith alive. When a new and faithful bishop is apointed out here, they will be ready. And it isn't some man who will fix the mess in my archdiocies, but the Holy Spirit.

Andrew

I live in LA, "Touchy Tech" has it correct. There are a many an orthodox parish who pray a great deal for Mahony, and hope he gets replaced. I've met the man, gone to Mass where he presided. This sounds trite, but he's a nice guy, not in a politician-swarmy way, just came off well. I disagree with his ideas for the Church, that Cathedral downtown is kinda cool, but only in an architectural way, but really loses it as a church. And Mahoney only visits a few hand-picked "Kerry-Catholic" parishes in West LA to visit, but considering the typical Catholic in LA, we get what we deserve. Maybe God doesn't work this way, but when you have an area this big, with this many Catholics, who consistently put into office pro-death Democrats and are so entwined in our perverse and sickened entertainment industry, do we really deserve a top-notch Cardinal?

thomas tucker

Why does Nancy, who last week informed us on another thread that she has left the Catholic Church and will miss us so terribly, have any standing to comment on the Pope and whether or not he cares about us?
Nancy- since you wrote last week that you were having dinner with your new pastor and her husband, why don't you refrain from taking swipes at our Universal Pastor?

Simon

Woods said he hoped a higher court would take a different view of the priest-penitent privilege and allow three-way communications between the bishop, his vicar and an accused priest to fall within it. "It's like having two priests in the confessional instead of one," he said.

I'm not familiar with California law, but this argument sounds like it strains the priest-penitent privilege to the breaking point.

And by so straining it, the Cardinal's attorney is simply exposing to future legislative and judicial attack a privilege that goes to the core of religious freedom and the Church's sacramental mission.

What a travesty.

mark

"[Mahony lawyer Donald] Woods said he hoped a higher court would take a different view of the priest-penitent privilege and allow three-way communications between the bishop, his vicar and an accused priest to fall within it. 'It's like having two priests in the confessional instead of one,' he said."

If the discussions between the accused and the vicar are in the nature of confession, so as to come within the priest-penitent privilege, then is not ANY disclosure of such discussions to ANYONE, including the Cardinal, a violation of the seal of the confessional? (Can. 983 §1. The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.)

And is not the vicar, by the admission of such disclosures to the Cardinal thereby excommunicated? (Can. 1388 §1. A confessor who directly violates the sacramental seal incurs a latae sententiae excommunication reserved to the Apostolic See; one who does so only indirectly is to be punished according to the gravity of the delict.)

Or would they prefer to withdraw this suspicious argument that the original communications between accused and vicar were in the nature of sacramental confession, rather than mere discussions about the matter.

austin

A friend of mine who knew Mahoney before he was bishop said that he 'grew' in office. In other words, Pope John Paul probably thought Mahoney would be faithful. But once you get in a chancery, there is a certain groupthink among the bureaucrats that is hard to resist. C. S. Lewis wrote an article about how easy it is to surrender principles in order to be accepted by the important 'inner ring' in a book of essays called "The Weight of Glory."

mark

And since confession is a sacrament, long defined as between a penitent and (single) confessor, by what authority does the Cardinal, through his attorneys, effectively alter and change the sacrament into "three-way communications"? A sacrament is what it is, no mere Cardinal can stretch it into something else for any reason, much less to meet the legal needs of the moment. Isn't such an argument a species of heresy?

Patrick Rothwell

The priest-penitent privilege under California state law is not necessarily identical to the seal of the confessional under canon law. That said, I would like to see the decision to get a better understanding of just what the Archdiocese argued.

Amy's headline says that Mahony is refusing to turn the records over. That seems to mean only that he will appeal the decision. If he loses his appeal, it will be interesting to see what he will do, but unless canon law or Rome dictates otherwise, my guess is that he will turn the documents over to the grand jury.

Jim

The "bishop-priest privilege" is a figment of Mahony's imagination, made up out of whole cloth to cover his tracks. No such privilege has been recognized in American courts, nor should it be.

When the L.A. situation blows open, it will make the soon-to-explode situation in Ferns (Ireland) look like a picnic.

The level of corruption will be unparalleled, and, like Ferns, the seminary will play a key role.

"There be rough waters ahead, maties."

mark

"The priest-penitent privilege under California state law is not necessarily identical to the seal of the confessional under canon law."

I don't know exactly what their argument is, and if the argument is not that it is co-extensive, then, at a minimum, the argument is liable to be misleading to the faithful. In any event, they should be much more careful about the theological implications of their legal arguments.

Septimus

Actually, sometimes the secrecy of the confessional can -- and in a sense, must -- involve a third person, while remaining "sealed"; but this can ONLY happen with the permission of the penitent.

It's like this: the absolution of some sins is reserved to the ordinary; in such an event, the confessor would be obliged to refuse absolution, until such time as he could consult with the ordinary -- which he can only do with the penitent's express permission, of course.

I'm not sure exactly how this would play out, but in this case, the "seal" would neither be "broken," nor would the matter of the confession be, now, unprotected.

Also, many times priests handle confidential matters, but do include others in them: annulments, for example.

I know Cardinal Mahoney is a highly unsympathetic figure; but there may well be a vital legal principle that he is defending, regarding the freedom of action of the Church vis-a-vis the state. (Not like this isn't a problem for about 2,000 years!)

Not being a lawyer, I can't begin to figure out all the angles and implications; but set this in a larger context: we have government mandating the Church provide contraception coverage (in California, by the way); we have government mandating pharmacists fill prescriptions, their consciences be damned, or lose their jobs; we have government increasingly snoopy, across the board, "for our protection" (often legitimately so); and we have a political mood that sees faithful Catholics as a "threat" to Constitutional order (witness the John Turley item in another thread).

So, dump on Mahoney all you want; but could it be he's got a point? And isn't it when someone really unpopular defends a valid point, that the valid point is most in danger? Example: when "traitorous" Japanese need to be rounded up for everyone's wellbeing (i.e., during WWII)?

mark

"I know Cardinal Mahoney is a highly unsympathetic figure; but there may well be a vital legal principle that he is defending . . . Not being a lawyer, I can't begin to figure out all the angles and implications."

Well, being that I am a lawyer, and a criminal defense attorney at that, I enthusiastically support the zealous defense of an accused rights, especially applicable here since the documents are being sought by a grand jury. But I am not a theologian, and thus much more likely to be led astray by the theological implications of his claims. Moreover, it seems to me that if they wanted to keep all these communications privileged, knowing that this is a legal issue from the beginning, they should have had their attorney involved, so as to encompass the communications within the attorney-client privilege, or within the attorney work-product doctrine. But stretching the priest-penitent privilege to third parties seems awfully specious to me and, as a legal matter, as well as a theological matter, for which I am little qualified, I am unconvinced.

Dina

"Maybe God doesn't work this way, but when you have an area this big, with this many Catholics, who consistently put into office pro-death Democrats and are so entwined in our perverse and sickened entertainment industry, do we really deserve a top-notch Cardinal?"

Yes, could they at least once in a while elect a pro-death Republica.. oh, wait. They did.
[sarcasm off]
How does voting for nominees of one corrupt party over those of another equally corrupt party figure into the equation?

Maybe the Holy Spirit was at work in getting Mahoney in their in the first place.

Maybe we, the Mystical Body of Christ are like an alcoholic and we needed to hit rock bottom before we enter a 12-step program.

Let's see..

1. Faithful celebration of the Mass
2. Liturgy of the Hours
3. Faithful celebration of the Mass
4. Adoration and Benediction
5. Faithful celebration of the Mass
6. Confession
7. Faithful celebration of the Mass
8. Social Justice
9. Faithful celebration of the Mass
10. Novenas
11. Faithful celebration of the Mass
12. The Rosary

Oh, heck, how about a thirteenth?
Faithful celebration of the Mass

Patrick Rothwell

"Not being a lawyer, I can't begin to figure out all the angles and implications; but set this in a larger context: we have government mandating the Church provide contraception coverage (in California, by the way); we have government mandating pharmacists fill prescriptions, their consciences be damned, or lose their jobs; we have government increasingly snoopy, across the board, "for our protection" (often legitimately so); and we have a political mood that sees faithful Catholics as a "threat" to Constitutional order (witness the John Turley item in another thread)."

I only scanned the decision (which is published on the court's website), but I noticed that the court cited the Catholic Charities decision as a basis for denying the Archdiocese's appeal. That's highly telling and disquieting.

I also noticed that the Archdiocese threw up every single argument under the sun (some of which were serious long-shots) hoping that something would stick. Nothing stuck except for one document. I don't have time to digest the whole decision today, but maybe I will later. My inclination (not surprisingly) is in favor of the Archdiocese with at least some of their arguments, partiularly ones related to the 1st Amendment.

Desert Chatter

The Church has a way of throwing around the term "confidentiality" in a way that makes you believe that it could never come out under subpoena in court. How many times have you heard formation sessions, spiritual direction sessions, or annulment proceedings assure that everything will remain confidential? None of those discussions would be privileged under the civil law of most states.

Mahony is just grasping at straws.

mark

Excerpts from the opinion, THE ROMAN CATHOLIC ARCHBISHOP OF LOS ANGELES, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest. DOES 1 and 2, Petitioners, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
B177852, B180696
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION THREE
July 25, 2005, Filed

* * *

2. Documents in question do not satisfy criteria for application of clergy-penitent privilege, irrespective of the formation of clergy theory.

Evidence Code section 1032, within the article relating to the clergy-penitent privilege, defines a "penitential communication" as "a communication made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy who, in the course of the discipline or practice of the clergy member's church, denomination, or organization, is authorized or accustomed to hear those communications and, under the discipline or tenets of his or her church, denomination, or organization, has a duty to keep those communications secret." (Italics added.) n11

Petitioners argue the subpoenaed documents constitute privileged penitential communications within the meaning of Evidence Code section 1032 because they were generated in the course of the formation of clergy process during the Archdiocese's interventions to help troubled priests.

Petitioners' contention fails. The penitential communications are not privileged because they were not "made in confidence, in the presence of no third person so far as the penitent is aware," to a cleric who is obligated "to keep those communications secret." (Evid. Code, § 1032.) * * *

d. Development of California's clergy-penitent privilege.

"The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive clerical consolation in return." (Trammel v. United States (1980) 445 U.S. 40 [63 L. Ed. 2d 186].) "The present day clergy-penitent privilege has its origin in the early Christian Church sacramental confession which existed [*47] before the Reformation in England. It has evolved over the years into the contemporary 'minister's' privilege adopted in some form in virtually every state of this country. (Yellin, The History and Current Status of the Clergy-Penitent Privilege (1983) 23 Santa Clara L.Rev. 95.)" (People v. Edwards (1988) 203 Cal. App. 3d 1358, 1362-1363, 248 Cal. Rptr. 53.)

As noted, California's clergy-penitent privilege is contained in Evidence Code sections 1030-1034. Before these sections were enacted in 1965, the privilege was defined by Code of Civil Procedure section 1881, subdivision (3), which provided "A clergyman, priest or religious practitioner of an established church cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs." (Italics added.) The current statute makes no reference to confessions, and instead provides an evidentiary privilege for " 'penitential communication.' " (Evid. Code, § 1032 [*48] .)
e. For clergy-penitent privilege to attach, requirements of Evidence Code section 1032 must be satisfied.

The central provision of California's clergy-penitent privilege is Evidence Code section 1032, which defines a penitential communication as a confidential communication made to a clergy person who is authorized to hear and obligated to keep secret such communications.

However, even with the privilege centered on a "communication," rather than on a "confession," not every statement made to a member of the clergy is privileged. "In order for a statement to be privileged, it must satisfy all of the conceptual requirements of a penitential communication: 1) it must be intended to be in confidence; 2) it must be made to a member of the clergy who in the course of his or her religious discipline or practice is authorized or accustomed to hear such communications; and 3) such member of the clergy has a duty under the discipline or tenets of the church, religious denomination or organization to keep such communications secret. (§ 1032; 2 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) § 39.1, pp. 1405-1407.)" (People v. Edwards, supra, 203 Cal. App. 3d at pp. 1362-1363, [*49] italics added.)

f. Petitioners' theory as to why clergy-penitent privilege is applicable.

Mindful of the criteria of Evidence Code section 1032 requiring a communication to be made in confidence, in the presence of no third person, to a member of the clergy who is authorized to hear the communication and who, under the tenets of the church, has a duty to keep said communication secret, the petitioners invoke the Roman Catholic church's formation of clergy doctrine. They presented evidence below showing that pursuant to this religious doctrine, a bishop is charged with the obligation to care for the physical, spiritual, emotional and psychological well-being of the priests within his diocese. Further, the obligation imposed by this doctrine includes intervention with priests who are experiencing problems related to celibacy and sexuality, including an "intervention interview" with the accused priest. The evidence also showed the Los Angeles Archdiocese encouraged priests to discuss such problems with Cardinal Mahony and the Vicar for Clergy.

The Archdiocese argues the challenged subpoenaed documents fall within California's clergy-penitent privilege [*50] because they were confidential communications made in the course of troubled-priest interventions, and under the tenets of the Church, Cardinal Mahony and the Vicar for Clergy were authorized to hear the communications and obligated to keep them secret. The Archdiocese also presented evidence the interventions with troubled priests depend on the troubled priests' understanding the communications will be held in confidence within the Church.

g. Subject communications do not meet criteria of Evidence Code section 1032.

Petitioners' theory conflicts with Evidence Code section 1032, which defines a "penitential communication" as "a communication made in confidence, in the presence of no third person so far as the penitent is aware," to a clergy person who must keep the communication secret. (Italics added.)

The record demonstrates the participants in the Archdiocese's troubled-priest interventions knew any communications likely were to be shared with more than one person. According to the Archdiocese's declared policy, priests experiencing psychological and sexual problems were encouraged to discuss those problems with [*51] the Archbishop and the Vicar for Clergy. Furthermore, the subpoenaed documents themselves amply demonstrate that communications to and from the individual priests were routinely shared by Cardinal Mahony, whoever happened to be the current Vicar for Clergy, and sometimes other Archdiocese employees as well.

This sharing of information violates Evidence Code section 1032's requirement that the penitent's communication be "made in confidence, in the presence of no third person so far as the penitent is aware," to a cleric who is obligated "to keep those communications secret." The fact both parties to the original communication knew it likely would be transmitted to a third person vitiated ab initio any privilege under Evidence Code section 1032, or, alternatively, constituted a waiver of the privilege under Evidence Code section 912, subdivision (a). n14

Here, the record demonstrates the District Attorney met the burden of rebutting Evidence Code section 917's presumption of confidentiality by proving the priests were aware the communications were likely to be transmitted to third persons.

The Archdiocese argues these communications were not transmitted "to any third party, that is, someone outside of the bishop (or his alter ego, the Vicar for Clergy)." The contention is unavailing. We reject the argument that just because Cardinal Mahony considers the Vicar for Clergy his surrogate for dealing with troubled priests, there was no violation of Evidence Code section 1032's requirement that the communication be "made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy who . . . has a duty to keep those communications secret."

mark

More excerpts, expanding on the arguments of the Archdiocese --

2. Petitioners' evidentiary declarations; their reliance on the church's "formation of clergy" doctrine.

In declarations supporting its motion to quash, the Archdiocese asserted that according to Roman Catholic doctrine, bishops are the direct successors of the 12 apostles of Jesus Christ. n2 Under the church's formation of clergy doctrine, a bishop is charged with the responsibility of sanctifying his priests, and is obligated to "care for and treat any emotional, physical, or spiritual problem a priest may be experiencing." n3 In carrying out this obligation, a bishop "may establish detailed boundaries for his priests concerning chastity" and "pass judgment in particular cases concerning the observance of this obligation. The bishop is obliged to intervene and judge inappropriate conduct of any priest and to impose restrictions and penalties as appropriate in his moral judgment." The Archdiocese argued these tasks require "open communications between the bishop and his priests."

A bishop "is permitted to appoint Episcopal vicars. An Episcopal vicar has the same power as a Bishop in the specific type of activity for which he is appointed." The Archbishop in Los Angeles, Cardinal Mahony, has appointed such a vicar, called the Vicar for Clergy, who is obligated to care for the "emotional, physical, psychological and spiritual lives" of the archdiocesan priests. Monsignor Craig Cox, who is both a canon lawyer and the Vicar for Clergy, declared Cardinal Mahony had [*10] established policies for the Archdiocese under which accusations of clerical sexual misconduct immediately are investigated. "The involved priest is confronted and is encouraged to discuss whatever problems he is experiencing regarding chastity." "Msgr. Cox states 'Based on the fundamental religious relationship between the bishop and his priest, the priest is encouraged to communicate his deepest psychological and sexual issue[s], to undergo psychiatric evaluation and treatment, and to share the results of this therapy with the Vicar and the Bishop. All of this for the purpose of the ongoing formation and sanctification of the priest.' " (Italics added.)

If "a canonical investigation of a boundary violation or accusation of sexual misconduct [is required], the process is conducted in accord with the requirements of Canons 1717-1719" n4 and pursuant to Archdiocesan practice. These Canons require the bishop to inquire carefully either personally or through some acceptable person, about the facts and circumstances and about the imputability of the offense. [P] . . . [T]o date, the bishops and priests have always understood that these records would be confidential, and files [*11] covering these materials would be kept separately from the priest's normal personnel file."
* * *
CONTENTIONS

Petitioners' chief contentions are that disclosure of the subpoenaed documents is barred by the First Amendment of the federal Constitution and by the free exercise clause of the California Constitution, as well as by Evidence Code provisions relating to the clergy-penitent and psychotherapist-patient privileges.

Additionally, petitioners contend disclosure of the subpoenaed documents is barred by California's attorney-client and work product privileges; under Stogner v. California, supra, 539 U.S. 607, disclosure of the subpoenaed documents is barred by the ex post facto clause; the District Attorney improperly usurped the grand jury's authority; the subpoenas duces tecum were impermissibly vague and were issued without proper authority and without the requisite good faith affidavit; and disclosure of the subpoenaed [*15] documents is barred by assorted statutory and constitutional rules.

Zhou

I like Cardinal Mahony.

How many other Cardinals have there been that were born in Hollywood, California?

My family has deep and twisted roots in Los Angeles. Cardinal Mahony is just like family. And we found a bottle of "Cathedral of Our Lady of Angels" wine in our closet Sunday night, selected by Cardinal, with a drawing of the Cathedral on the wine label, although we can't remember how we came to possess it. Has anybody tried this wine? (Matt Lickona---are you reading this?)

He's a real LA Cardinal. Just like Cal Worthington was a real LA car salesman.

Ken

Then who's Mahoney's "Dog Spot"?

Joel

thomas tucker, I'm not sure why you are confused or ticked off by Nancy's comments. Having recently left the RCC, it is obvious that she decided already that the Universal Pastor is sub-par. You knew that already, since you already knew she left. And this particular thread seems the obvious place to remind everyone of her other reasons for leaving.

Desert Chatter

For the full opinion, go to:
http://www.courtinfo.ca.gov/opinions/documents/B177852.PDF

Touchy Tech

Zhou,

A neighbor of mine gave my wife and I a bottle of that label last year. It was a red wine (I can't recall the variety) and was rather good. I think that we can trust the good cardinal's taste in spirits if not in architecture or theology.

DarwinCatholic

On a somewhat related point, we talk a lot around here about bishops needing to be removed by Rome, but as I was thinking about it last night, I couldn't remember any times when the Vatican has removed a bishop (who hasn't already tendered his resignation) except in cases of excommunication/schism.

Does anyone with a better grasp of 19th and 20th century Church history know how many time bishops have been actively removed by Rome because of bad moral character or severe misgovernance? Does it _ever_ happen?

thomas tucker

Two reasons, Joel.
First, it is bad form to go to a website devoted to another religion than yours and make snarky comments about their leader.
Second, it is deceptive for her to use words like "us", and "our" in discussing Catholicism, thereby giving the impression that she is a Catholic when she is not.

Septimus

I read the legal material posted above, and it sounds like the issue hinges on the access of a third-party to the communication.

If that's correct, I raise again the instance I gave above: a penitent comes to a priest for absolution; the sin in question is a "reserved" sin, so the priest -- with the penitent's permission -- must communicate with the bishop.

At the point he does that, does the law no longer recognize this information as under the seal? Because the Church absolutely does. The penitent's permission would free the priest to discuss it with the bishop, but with no one else. Ever.

Sandra Miesel

Well, Jacques Gallot, gay and dissenting bishop of Evreaux was removed from his diocese to the titualr one of Partenia in the 1990s. Other malefactors have surrendered to "strong suggestions" that they retire.
In the early 19th C Pius VII removed the entire French episcopate in the wake of the Revolution's Constitution of the Clergy--and then reappointed selected ones.

reluctant penitent

darwin catholic is right, however, that the Pope cannot remove a Bishop, but only accept a Bishop's resignation.

The post-V2 'collegiality' policy is to 'strongly suggest' a resignation only in cases of open dissent or crime (e.g., the Phoenix Bishop).

There have been other Bishop resignations, but these were the result of strong pressure from fellow (i.e. local) Bishops, clergy, and laity for a resignation. There is no such pressure in the case of Cardinal Mahony because the Cardinal has a great deal of support from clergy, laity and many fellow Bishops.

As I have said before, I would welcome the Papacy taking for itself greater power over Bishops and the establishment of an institution under the direct control of the Pope with the power to investigate and evaluate the performance of Bishops. The Pope must be able not merely to 'suggest' resignation but to demand it, and to do so not only in cases of criminal wrongdoing or open dissent but also in cases of negligent conduct that has not been found criminal and in cases where a Bishop has been too tolerant of dissent, though not guilty of dissent himself. This would require an augmentation of the authority of the Papacy that goes beyond even pre-V2 days, but it's the only way to enable the Church to get rid of its Mahonys.

Matt

"darwin catholic is right, however, that the Pope cannot remove a Bishop, but only accept a Bishop's resignation."

Could not the Pope also call the bishop to Rome for a consultation, and basically keep him there at the Vatican, waiting a couple of years before taking the meeting? Or perhaps transfer him to some nice missionary church in some undeveloped place in Central/South America? especially since he is so fond of immigrants from that area?

reluctant penitent

The answers to your questions are 'no' and 'no.' The Pope cannot 'keep' a Bishop in the Vatican against his will. Nor can he 'transfer' a Bishop to a new office without the Bishop resigning his previous office. I'm not familiar with the case of the French Bishop Sandra Miesel mentioned, but I suspect that he was offered the titular post as an enticement to leave his present post, precisely because the Pope cannot force Bishop to resign. Canon law merely stipulates that the offer of a resignation under appropriate circumstances is a Bishop's duty of office, but it's not a duty that the Pope can force a Bishop to fulfil.

Often the Vatican will appoint a coadjutor Bishop as a signal that they want the current Bishop to step down. This was done, for example, in the Grahmann case. But Grahmann simply refuses to step down. Here's something about this (from http://www.bishop-accountability.org/tx-dallas/Dallas-2003-07.htm):

"It was no surprise when the Holy See named a coadjutor bishop to the Dallas diocese, given the financial and pastoral catastrophe for which Bishop Grahmann bore significant responsibility. It had to have come as a shock to Grahmann, who had requested an assistant bishop, not a coadjutor. The appointment of a coadjutor is universally recognized as a sign from Rome that it expects the sitting bishop of a problem diocese to retire and make way for new management. Bishop Joseph Galante of Beaumont, Texas, was installed in Dallas in January, 2000 - whereupon Bishop Grahmann announced he had no intention of resigning before he reached the mandatory retirement age of 75."

There's really not much the Vatican can do about Grahmann until his mandatory retirement age, when he is required by Church law to offer his resignation.

Septimus

It may not make much soap to some folks here, but there are larger, theological-historical issues at stake with the question of removing bishops, namely, the question of primacy in relation to collegiality, and how the primacy of Peter will function in the future.

Some, of course, love a monarchical pope, and I'm not trying to pick a fight with such folks; but the successor to Peter has not always functioned that way, and need not; the larger question is, can Peter be more modest in the exercise of his office, and still be Peter?

John Paul II of happy memory raised the possibility in Ut Unim Sint, in service of Christian Unity, especially with the East.

Again, I suppose some might not think the Church ought to pursue this, but its clear the Church is trying to effect a new, more collegial exercise of primacy; and you can't do it unless you somewhere, somehow, begin to do it.

That's not to minimize the scandal issue; but if you're the pope, trying -- at the same time -- to decide in relation to present-day, and also keep the next 500 years and millenium in view...that's hard!

Patrick Rothwell

I know that Thomas Cranmer was deprived of his See by Reginald Pole in his capacity as papal legate. But, then again, Thomas Cranmer was convicted of heresy and perjury in his ordination oath in a trial held under papal auspices by Cardinal Pole. It's not quite the same thing as removing someone for malfeasance.

The Pope has supreme, immediate, ordinary jurisdiction throughout the Church and can act unimpeded. I can't believe that he doesn't have the power to depose a bishop. Whether the exercise of that authority tends to tear down communio in a given case is another question. In any event, the 2002 cry of "fire 'em all!" from the Catholic Far Right was a patently hysterical overreaction and I am glad that the Pope did not take such a damaging course of action.

DarwinCatholic

The Pope has supreme, immediate, ordinary jurisdiction throughout the Church and can act unimpeded. I can't believe that he doesn't have the power to depose a bishop.

Again, I'm not an expert on these things (Septimus or reluctant penitant might be able to fill more in) but I'm pretty sure (and the comments above seem to back this up) that the pope has never had much power to depose a bishop unless the bishop in question is schismatic or in heresy (at which point the pope is essentially filling an empty see). Now, at certain points in the past, nailing a bishop for heresy was done pretty fast and loose (for instance you could claim that he supported the selling of the sacraments) but (all for the best, generally) it's hard to do these days without a solid case.

And I guess that fits well with tradition in that I can't exactly picture Peter "firing" one of the other apostles. I think the rule is that essentially once you are a bishop, a direct successor to the apostles, you're pretty much there for good.

Matt

"And I guess that fits well with tradition in that I can't exactly picture Peter 'firing' one of the other apostles. I think the rule is that essentially once you are a bishop, a direct successor to the apostles, you're pretty much there for good."

I would agree that, once he holds the office of bishop, he is "pretty much there for good," he is not made a non-bishop. But a simple transfer seems to me to be a different animal altogether. That would not involve "firing" him. I don't see how a bishop has any particular "title," i.e. property right, to any particular diocese -- At least I'm not sure that he should. I'm certainly no expert, or even an amateur canon lawyer, but it seems to me that any given Cardinal from any given archdiocese could be transferred elsewhere, like a transfer to papal nuncio for Guatemala or somewhere, at the pleasure of the Pope.

reluctant penitent

"I can't believe that he doesn't have the power to depose a bishop."

He doesn't. There is no provision for Bishop removal in the Code of Canon law. Whenever we hear of a Bishop being 'removed' it's always the Bishop offering his resignation, never the Pope telling the Bishop 'you're fired!'

A Bishop can remove a Priest from a parish, a Church tribunal can declare the nullity of a sacred ordination (a time-consuming trial, but one which is necessary in order for a person to be removed permanently from priesthood) but there is no process for removing a Bishop.

This is what the Code of Canon Law has to say as far as the end of a Bishop's tenure is concerned:

"Can. 401 §1. A diocesan bishop who has completed the seventy-fifth year of age is requested to present his resignation from office to the Supreme Pontiff, who will make provision after he has examined all the circumstances. §2. A diocesan bishop who has become less able to fulfill his office because of ill health or some other grave cause is earnestly requested to present his resignation from office."

There are cases in which Bishops have refused to resign even at the age of 75. For example, in Toronto in the 90's, Ukranian Catholic Bishop Isidore Borecky held on until the age of 82, even though the Vatican had wanted him to resign at the age of 75, and had even appointed an Apostolic Administrator (a step beyond coadjutor), which is done very rarely, and only when a Bishop has gone mad or is otherwise mentally impaired. It caused a very acrimonious split in the Ukranian Catholic community (some followed the Bishop, some the Apostolic Administrator), and I don't think that the Vatican is likely ever to do that again.

reluctant penitent

"Thomas Cranmer was convicted of heresy and perjury in his ordination oath in a trial held under papal auspices by Cardinal Pole"

In other words, Cranmer's ordination was annulled, just as a tribunal might annul a marriage. That's not a process that can reasonably be applied to negligent Bishops.

reluctant penitent

"it seems to me that any given Cardinal from any given archdiocese could be transferred elsewhere, like a transfer to papal nuncio for Guatemala or somewhere, at the pleasure of the Pope"

Again, there is no provision for such transfers in Canon law. There are only provisions for the transfer of pastors by Bishops. (http://www.vatican.va/archive/ENG1104/__P70.HTM)

Patrick Rothwell

"In other words, Cranmer's ordination was annulled, just as a tribunal might annul a marriage."

Please cite a historical source that says that Pole determined that Cranmer was not validly ordained.

"I can't believe that he doesn't have the power to depose a bishop."

"He doesn't. There is no provision for Bishop removal in the Code of Canon law. Whenever we hear of a Bishop being 'removed' it's always the Bishop offering his resignation, never the Pope telling the Bishop 'you're fired!'"

It does not matter, strictly speaking, that there is no provision for removing a bishop in the Code of Canon Law. The Pope may do so under his supreme authority even if canon law is silent.

Septimus

Patrick may well be right, that the pope *can* do it in view of authority in the fullest sense.

That doesn't mean he *ought* to, for the reasons I gave: Benedict, and John Paul the Great before him, endeavoring to exercise their authority with a lighter touch to promote more collegiality, and facilitate reunion with the East.

thomas tucker

So it's not in the current Code of Canon Law. Couldn't the Pope just add it to the Code on his own authority?

Vatican Watcher

If Mahony loses his appeal and the higher court orders him to turn over the papers, that might provide the impetus for his resignation. That's what happened with Cardinal Law. It was when the court ordered the papers to be made public that the real uproar began. If whatever Mahoney wants to hide comes to light, it may put him in a bad enough light to pressure him to resign.

reluctant penitent

"It does not matter, strictly speaking, that there is no provision for removing a bishop in the Code of Canon Law. The Pope may do so under his supreme authority even if canon law is silent."

Canon law is not silent on the matter. Canon law defines the office of Bishop as one that is held until a Bishop resigns. The Pope is bound by Canon Law in his relations with Bishops. He can use his authority to change the law, but he cannot use his autority to ignore the law.

The Pope should use his authority to change the law and establish for himself greater power over Bishops. This would amount to a revolution in relations between the Papacy and the episcopacy but, given the crises of sexual abuse and dissent, it's a necessary revolution.

reluctant penitent

"That's what happened with Cardinal Law."

Even Cardinal Law had to be persuaded to resign with the promise of a ceremonial posting in Rome. Even with all of Archbishop Weakland's disgraceful actions, it must be admitted that he, at least, offered his resignation. (Though even he is still Archbishop emeritus I believe.)

HA

Cardinal Law's offer of resignation was initially turned down by the Vatican. This was months before any posting to Rome.

Jim

For a Pope to strip a bishop of his office would be tantamount to admitting that a Pope had made a mistake in naming the bishop in the first place. In case you haven't noticed, Popes don't like to own up to their mistakes.

HA

For a Pope to strip a bishop of his office would be tantamount to admitting that a Pope had made a mistake in naming the bishop in the first place.

Not as long as there is free will and not as long as people can choose to do good or evil. The fact that a bishop is worthy of being removed doesn't mean he was always that way.

reluctant penitent

"This was months before any posting to Rome."

But what motivated him to offer the resignation in the first place, and to offer it again later, after he had answered prosecutors' questions? Perhaps the assurance that he would be moved to a ceremonial post.

reluctant penitent

"For a Pope to strip a bishop of his office would be tantamount to admitting that a Pope had made a mistake in naming the bishop in the first place."

Again, you're operating under the false assumption that the Pope can 'strip' a Bishop of his office. That's how it should be, but that's not how it is.

Joseph D'Hippolito

The preceding discussion merely serves to point out that Canon Law does not make any provision to relieve the faithful from a corrupt, incompent or misfeasant bishop. Essentially, a bishop can stay in his see for life, no matter what. It's no wonder why so many of them act like little monarchs, view the faithful as their "subjects" and view their dioceses as personal fiefdoms.

Is this how Christ wants His Church governed?

HA

But what motivated him to offer the resignation... Perhaps the assurance that he would be moved to a ceremonial post.

I can't disprove that -- no one can. But without something else to go on, it's total speculation, and it shouldn't be assumed. The man has enough to answer for as it is.

HA

Is this how Christ wants His Church governed?

Joe D, why don't you start up an ultra-Montane faction to undo collegiality? Run it by the Orthodox (just for grins), and see what they think.

Jim

reluctant:

The Canon Law on this can read any way the Pope wants to make it read. The Pope can change the law by his fiat.

The fact that Popes have chosen not to give themselves this power in the canon law speaks volumes: they want the raw power to appoint every bishop, but none of the blame or the responsibility to do something about it if one turns out to be unworthy of the office. It's quite cowardly, actually.

HA

The fact that Popes have chosen not to give themselves this power in the canon law speaks volumes...

See my post to Joe D'Hippolito. Try and promote the notion that Popes are allowed to depose by personal whim -- see how far that gets you. Not to mention the notion that the Popes can write whatever power they desire into canon law.

reluctant penitent

"Is this how Christ wanted His Church governed?" Well, actually yes. Christ instituted Apostolic succession. Has Christ annulled that institution in His private conversations with you?

DarwinCatholic

The Canon Law on this can read any way the Pope wants to make it read. The Pope can change the law by his fiat.

The fact that Popes have chosen not to give themselves this power in the canon law speaks volumes: they want the raw power to appoint every bishop, but none of the blame or the responsibility to do something about it if one turns out to be unworthy of the office. It's quite cowardly, actually.

It's not surprising that people these days would neither understand nor be sympathetic towards how monarchy worked, but this really isn't it. Because the monarch enforces and to an extent creates the law does not mean that he is above the law.

It's true as Reluctant says that canon law could to changed to allow the pope, though some ecclesiastical process, to remove a bishop due to bad management or public scandal. However, that would be a very, very major change, one which might be necessary, but which should be considered very carefully before implementation. It would give the pope incredible power for ill as well as good, and as with all forms of power, it might be most likely to be used by someone with bad intentions rather than good.

HA

PS Joe D'Hippolito, I don't mean this to sound as condescending as it no doubt does, but your posts the last day or so -- even those I disagree with -- are what I would call a big step up from some of your previous stuff. Thanks for that -- I mean it sincerely. Again, sorry if that sounds patronizing.

Venerable Aussie

"but it seems to me that any given Cardinal from any given archdiocese could be transferred elsewhere, like a transfer to papal nuncio for Guatemala or somewhere, at the pleasure of the Pope."

"Or perhaps transfer him to some nice missionary church in some undeveloped place in Central/South America?

Ay carumba! I'm not sure that our fellow Latino Catholics in the One, Holy, Catholic and Apostolic Church would appreciate this.

Joseph D'Hippolito

HA, I don't find your remarks patronizing in the slightest. Many thanks. :)

"Is this how Christ wanted His Church governed?" Well, actually yes. Christ instituted Apostolic succession. Has Christ annulled that institution in His private conversations with you?

RP, does apostolic succession include corruption and malfeasance? Why don't you read Ezekiel and Jeremiah, who both laid rhetorical waste to a religious bureaucracy that claimed to be the descendents of Moses?

For that matter, why don't you read about the exploits of the high priest Eli and his sons in I Samuel? God was really "pleased" with those guys....

If Canon Law makes no provision for a Pope to strip a bishop of his see unilaterally, does it make provision for a group appointed by the Pope at least to investigate any claims against the bishop in question? If so, who constitutes such a group, and are those members untainted by potential conflicts of interest? If no such provision exists, why not?

See, RP, you can argue apostolic succession all you want but doing so in this context equates apostolic succession with corruption and misfeasance.

Again, I pose the question, Does Christ want His Church governed in such a fashion in which
those who hold authority in His name are accountable to nobody in this life?

reluctant penitent

No Christ did not want corruption in His Church, but He also did not erase original sin from human beings, nor did He deprive us of the freedom to do evil. If your denomination claims to have rid itself of original sin with some institutional arrangement they're not being honest.

Samuel J. Howard

Yes, the Pope can remove bishops. Note the third way vacancies occur in the following canon, privation.

"Can. 416 An episcopal see is vacant upon the death of a diocesan bishop, resignation accepted by the Roman Pontiff, transfer, or privation made known to the bishop."

Yes, the Pope can transfer Bishops. No, they don't resign as part of the process, they automatically lose their authority in the old diocese when they take posession of the new one.

"Can. 418 §1. Upon certain notice of transfer, a bishop must claim the diocese to which he has been transferred (ad quam) and take canonical possession of it within two months. On the day that he takes possession of the new diocese, however, the diocese from which he has been transferred (a qua) is vacant."

reluctant penitent

Mr. Howard,

Look at the Code of Canon Law on 'privation':

"PRIVATION Can. 196 §1. Privation from office, namely, a penalty for a delict, can be done only according to the norm of law. §2. Privation takes effect according to the prescripts of the canons on penal law."

In other words, privation is permissible under Canon Law only when a delict has been established before a tribunal. Delicts are listed in Book VI part II. These are all violations of Church law--e.g. blasphemy, usurpation of ecclesiastical office, etc. You will see that none of the Bishops who have resigned in recent years or who ought to resign can be found guilty of any of these delicts. Thus, none of them can be removed from office by 'privation'.

Samuel J. Howard

Take another look at the delicts.

Can. 1389 §1. A person who abuses an ecclesiastical power or function is to be punished according to the gravity of the act or omission, not excluding privation of office, unless a law or precept has already established the penalty for this abuse.

§2. A person who through culpable negligence illegitimately places or omits an act of ecclesiastical power, ministry, or function with harm to another is to be punished with a just penalty.

Covers the kinds of cases of horrible mismanagement we've seen in the U.S.

Plus, you've got the general law:

"Can. 1399 In addition to the cases established here or in other laws, the external violation of a divine or canonical law can be punished by a just penalty only when the special gravity of the violation demands punishment and there is an urgent need to prevent or repair scandals."

As for the fact that a trial is required, a canonical process is required for a Bishop to contentiously remove the Pastor of a parish. We still speak of the Bishops as having the power to remove pastors.

Joseph D'Hippolito

No Christ did not want corruption in His Church, but He also did not erase original sin from human beings, nor did He deprive us of the freedom to do evil.

RP, may I refer you to James Madison who said the following:

"If men were angels, no government would be necessary."

Neither would checks upon executive authority.

The fact that you failed to provide any examples in Canon Law of how bishops can be held accountable by the Church -- and you portray yourself as an expert in Canon Law, RP -- demonstrates that no such provisions exist. For if they did, you would certainly point them out.

The lack of such provisions merely points out the fact that "apostolic succession," as expressed through Catholic governance, is nothing but an excuse for corruption and malfeasance. If you don't believe that, just check out the history of some of the more notorious bishops and popes (cf, Alexander VI).

Sure, such men succeeded from an apostle. Judas.

reluctant penitent

Mr. Howard,

Ask a Canon Lawyer when in Church history a Bishop has been found guilty of delict so that he lost his office by 'privation' and how likely it is that any of the Bishops in question might be found guilty of a delict. A delict is essentially the Canon Law version of a serious crime against the Church.

You cite:

"Can. 1389 §1. A person who abuses an ecclesiastical power or function is to be punished according to the gravity of the act or omission, not excluding privation of office, unless a law or precept has already established the penalty for this abuse."

An 'abuse' of 'ecclesiastical power or function' would be any use of the episcopal office for private gain--e.g., if a Bishop were to take bribes in handing out contracts for the diocese. 'Abuse of office' does not cover every act in which a Bishop might be doing something less than exemplary.

Can. 52 refers to cases in which a " person who through culpable negligence illegitimately places or omits an act of ecclesiastical power, ministry, or function"

The ecclesiastical power, ministry, function of a Bishop are well-defined. Omissions in this area would include things like failing to reside in the diocese, to make an ad limina visit, or do any other specific act required of the Bishop by Canon law.

The only part of the code describing a Bishop's duties which might be relevant is the following:

"Can. 383 §1. In exercising the function of a pastor, a diocesan bishop is to show himself concerned for all the Christian faithful entrusted to his care, of whatever age, condition, or nationality they are, whether living in the territory or staying there temporarily."

But note that the code stipulates here that he must show concern 'in exercising the function of a pastor'. Now you might claim that someone who sends a suspect priest to some parish isn't really showing concern for the Christian faithful in that parish, but that's not what is meant by a Bishop 'exercising his function as a pastor.' He would fail to show concern as a pastor if he refused, for example, to care for a parishioner's catechesis or access to the sacraments. For example, if the Bishop were to say 'I can easily provide a pastor for people in parish x, but I don't like the people there because they didn't lavish me with enough praise when I last visited, so they can go to hell.'

Again, I urge to consult a canon lawyer about the possibility of successfully trying any of the Bishops that you and I don't like--Mahony, Grahmann, for example--for delict.

The Canon Law is the law of the Church. It is not meant to cover all criminal acts by Bishops but only specified delicts against the Church. The Church has always relied on the state to try clergy for criminal acts against individuals, even when those individuals are also Catholics. The Vatican required Cardinal Law to stay and answer prosecutors' questions, for example, rather than looking into his criminal culpability themselves. Why? Because the Church simply does not prosecute people for the sorts of crimes of which he was excused. The Church does not have something like a Sharia law that governs all aspects of human life, both religious and secular.

Finally you say:

"As for the fact that a trial is required, a canonical process is required for a Bishop to contentiously remove the Pastor of a parish. We still speak of the Bishops as having the power to remove pastors."

Agreed. But my claim was that the Pope does not have the power to arbitrarily remove Bishops--i.e. outside of Canon Law. However, it would be erroneous to think of the relationship between Popes and Bishops as analogous to the relationship between Bishops and pastors. The trial of a Bishop for delict would be more comparable to a trial annulling ordination which, as you no doubt know, is not a simple process. The Pope's power over Bishops under canon law is not at all comparable to the power that a Bishop has to remove a pastor from a parish, especially not in these days of 'collegiality.'

reluctant penitent

Mr. D'Hippolito,

You believe that the Catholic and Eastern Bishops are the successors of Judas, I believe that they are the successors of the other apostles. People can just read some Church history and decide which of these claims has stronger evidential support.

Joseph D'Hippolito

RP, I did not say that all "Catholic and Eastern bishops" desceded from Judas. Only the evil ones.

Check out the following quote from my last post:

"If you don't believe that, just check out the history of some of the more notorious bishops and popes (cf, Alexander VI).

Sure, such men succeeded from an apostle. Judas."

If you knew anything about the English language, RP, you would know that the phrase "such men" refers directly to the last element reflecting a plural noun, "the more notorious bishops and popes."

Of course, there were very holy and Christ-centered bishops and popes, and there will be more. But for you to deny the historical fact of corruption and malfeasance in the hierarchy, RP, is astounding.


Desert Chatter

"The Church has always relied on the state to try clergy for criminal acts against individuals, even when those individuals are also Catholics."

I do not believe this to be true. I believe that there was a long and extensive period of friction between the church and monarchs as to whether or not clerics were subject to civil courts, even in criminal matters.

reluctant penitent

Desert Chatter,

The point is that Canon Law does not cover civil criminal matters. As far as the question of how willing the Church has been to submit clergy to civil prosecution, that has always depended on the quality o the civil prosecution. Of course the church is going to oppose a bishop being tried before a communist show-trial. In a state like the US, however, the Church does not deny the right of the state to prosecute clergy. It does, however, reserve the right to act defensively when such prosecution might harm church interests.

Mark Shea

RP, does apostolic succession include corruption and malfeasance? Why don't you read Ezekiel and Jeremiah, who both laid rhetorical waste to a religious bureaucracy that claimed to be the descendents of Moses?

No they didn't. They thundered against a priesthood that claimed to be descended from Aaron. No prophet, however, said that the Levitical priesthood was not descended from Levi or Aaron, because they were. Moreover, no prophet sought to establish a "system of checks and balances" on the Levitical priesthood. Nor did any prophet say the Levitical priesthood was rendered illegitimate by the sins of its members. The prophets promised judgment for sins (and God delivered). The prophets also declared that God would establish a "new covenant" with Israel, *because the Mosaic covenant was never intended to be eternal*. Therefore, the priesthood of that covenant was never intended to be eternal either.

That new covenant has now been established with a new covenant priesthood. This no more means now than it did then that priests can get away with murder. But neither does it mean that God's design for the priesthood is a Jeffersonian system of checks and balances. And it emphatically does *not* mean that God is going to eliminate the priesthood and replace it something else. For the new covenant is new and *everlasting*. Therefore the priesthood is permanent too: "You are a priest *forever*--even in hell, if the priest violates his vows badly enough.

You've been dancing around the Protestant notion that God is going to sweep away the new covenant priesthood and replace it with yet another covenant, Joe. Either come out and say that or acknowledge that there is no basis for this notion in revelation.

Not that I wouldn't love to see Mahony go.

Septimus

Joseph - can't you just acknowledge you're speaking out of intense anger and pain, and frustration? I don't fault you for that; but when people are yelling, red-in-the-face, I don't even try to talk with them; just calm them down, or wait till they do.

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