TAKEN BY THE

NATIONAL CONFERENCE OF

CATHOLIC BISHOPS

ON THE SUBJECT OF

DUE PROCESS

NATIONAL CONFERENCE OF CATHOLIC BISHOPS

1312 Massachusetts Ave., N.W., Washington, D.C. 20005





Contents

Page

I. THE NCCB ON THE SUBJECT OF DUE PROCESS .... 1

II. DOCUMENTATION 4

A. Report of the Canon Law Society of America to the

National Conference of Catholic Bishops on the Subject

of Due Process 4

B. Remarks of Father Robert P. Kennedy to the General

Membership of the NCCB 39



Digitized by the Internet Archive

in 2016

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I.

THE NCCB

ON THE SUBJECT OF

DUE PROCESS

In November of 1969, during the course of the semi-annual meeting

of the National Conference of Catholic Bishops, the Committee on

Canon Law reported to the general membership on the matter of

due process. This was not the first time that the question had been

brought to the floor for discussion during a general meeting of the

U.S. bishops. At a similar meeting held a year before in November

of 1968, the subject had been discussed in detail. The outcome of

that discussion was a brief statement which concluded with these

words

:

The National Conference of Catholic Bishops is eager to

assist in the formidable task of revising the Code of Canon

Law. It is equally eager to promote adequate protection of

human rights and freedoms. For this reason, the Confer-

ence earnestly invites, with due regard for the fundamental

differences of the civil and ecclesial societies, specific sug-

gestions.

Five months later, during the general meeting of the bishops held

in Houston, Texas in the spring of 1969, the Canon Law Committee

reported to the bishops that subsequent to the Conference statement

issued during the previous meeting . . many individuals and groups,

notable among them the Canon Law Society of America, have under-

taken studies, promoted dialogue and sought the fruits of scholarly

research and pastoral experience relative to the protection of ecclesial

rights and freedom.” In reply to this heartening development the

Bishops’ Conference (NCCB) passed the following resolution:

Be it resolved: That the National Conference of Catholic

Bishops, more than ever aware of the urgency of the prob-

lem, encourages and supports these efforts, shares their

concern and awaits their results. On receipt of specific sug-

1



its competence to suggest to its members experimentation

with workable procedures and the prompt implementation

on the diocesan, provincial and regional levels of well-con-

ceived plans for the greater protection of human rights and

freedom within the Church.

When, therefore, the matter of due process came before the bishops

for a third time in November of 1969, it met with much anticipated

interest. The Conference carefully listened to a report from Bishop

Ernest Primeau, Chairman of the Canon Law Committee. As part

of his report, Bishop Primeau called upon Father Robert P. Ken-

nedy, Chairman of a special due process study commission of the

Canon Law Society. Father Kennedy presented to the bishops the

results of his committee’s studies. In presenting this report, he spoke

to them briefly and offered a few additional words of explanation

and commentary. (The text of Father Kennedy’s remarks as well

as the report of his committee are contained in the documentation

following this section.)

At the conclusion of Bishop Primeau’s report and the discussion

of it, the general membership of the Bishops’ Conference approved

the following resolution:

The promotion of adequate protection of human rights

and freedoms within the Church is central to the bishops’

role of service to the people of God. This Conference,

therefore, consistently has encouraged and supported the

scholarly efforts of those who proposed more effective pro-

cedures by which human and ecclesial rights might be

guaranteed at all times in the Church.

The report of the Canon Law Society of America to the

NCCB on the subject of due process is gratefully acknowl-

edged as an initial positive response to the request of this

Conference, made in November 1968, for concrete sugges-

tions for procedures which could operate to safeguard

rights and freedoms where existing procedures are found to

be inadequate. We believe that what is proposed in this

document is balanced, sufficiently cognizant of the specific

differences between ecclesial and civil society, pastoral in

its orientation, and that its implementation is both feasible

and needed.

2



Therefore, BE IT RESOLVED, That the National Con-

ference of Catholic Bishops, properly aware of the urgency

of the problem, recommends to its members experimenta-

tion with procedures such as are outlined in the Agenda

Report on what is called Due Process, adapted where nec-

essary to local circumstances, and to the prompt imple-

mentation on the diocesan, provincial and regional levels of

this and other well-conceived plans which may become ad-

visable for that secure protection of human rights and

freedoms which should always be among the goals of the

Church.

+Joseph L. Bernardin
General Secretary, NCCB

3



II.

A. Report of the

Canon Law Society of America

to the

National Conference of

Catholic Bishops

on the Subject of Due Process

PREAMBLE

In accordance with the authentic teaching of the Catholic Church,

the members of this Society express their conviction that all persons

in the Church are fundamentally equal in regard to their common

rights and freedoms, 1 among which are:

The right and freedom to hear the Word of God and to par-

ticipate in the sacramental and liturgical life of the

Church; 2

The right and freedom to exercise the apostolate and share

in the mission of the Church; 3

The right and freedom to speak and be heard and to receive

objective information regarding the pastoral needs and

affairs of the Church;
4

The right to education, to freedom of inquiry and to free-

dom of expression in the sacred sciences; 5

The right to free assembly and association in the Church;
0

and such inviolable and universal rights of the human per-

son as the right to the protection of one’s reputation, to re-

4



spect of one’s person, to activity in accord with the upright

norm of one’s conscience, to protection of privacy . 7

The dignity of the human person, the principles of fundamental

fairness, and the universally applicable presumption of freedom8

require that no member of the Church arbitrarily be deprived of the

exercise of any right or office.

NOTION OF DUE PROCESS

The adequate protection of human rights and freedoms is a mat-

ter of concern to all men of good will; the adequate protection of

specifically ecclesial rights and freedoms has become a matter of

increasing concern to all members of the Church.

Rights are protected in many ways. Indirectly, they are protected

by education, growth of moral consciousness, development of char-

acter; directly, they are protected by law. Rights without legal

safeguards, both preventive and by way of effective recourse, are

often meaningless. It is the noblest service of law to afford effective

safeguards for the protection of rights, and, where rights have been

violated, to afford effective means for their prompt restoration.

Phrased in abstract terms, the question whether there ought to be

“due process” in the Church answers itself since everyone is ob-

viously entitled to whatever process is “due.” In all governmental

procedures respect should be paid to the rights of all persons in-

volved, whatever this may require. The question becomes real only

when specific content is given to the expression “due process” so that

what is asked is whether certain specific substantive and procedural

protections are due, in given sets of circumstances, in order that the

rights of persons involved be adequately safeguarded.

Most of the current discussion and writing about “due process” in

the Church is conditioned by Anglo-American common law tradition

which requires, substantively, that no fundamental right or freedom

shall be denied without adequate justification; and procedurally,

that every individual be accorded certain specific protections in

administrative and judicial procedures. Among such procedural

protections are, for example; the right to be informed of proposed

actions which might prejudicially affect one’s rights, the right to be

heard in defense of one’s rights, the right, in the face of accusation

which could result in the imposition of a penalty, to confront one’s

5



accusers, and those who testify in support of the accusation, the right

not to be judged by one’s accusers. Any nuanced statement of due

process will have to make distinctions between many different types

of situations
;
the notion of due process is not univocal but analogous.

It is a principle of justice rather than a specific rule of law.

ECCLESIOLOGICAL IMPLICATIONS

a. Unity of Authority in the Bishop

It is questioned at times whether this very notion of due process

has any proper place in the Catholic Church which we understand

to be, by divine institution, a hierarchical society in which the full-

ness of governmental power is vested in the episcopate.

Bishops govern the particular churches entrusted to them

as the vicars and ambassadors of Christ . . . This power,

which they personally exercise in Christ’s name, is proper,

ordinary, and immediate, although its exercise is ulti-

mately regulated by the supreme authority of the Church,

and can be circumscribed by certain limits, for the advan-

tage of the Church or of the faithful. In virtue of this

power, bishops have the sacred right and the duty before

the Lord to make certain laws for their subject, to pass

judgment on them, and to moderate everything pertaining

to the ordering of worship and the apostolate.

The pastoral office or the habitual and daily care of their

sheep is entrusted to them completely . . .9

It is the opinion of some that there cannot be in the Church any

such separation of powers as exists, for example, in the American

form of government, in which authority is divided among legislative,

executive and judicial branches of government.

The unity of authority is a necessary element of the hier-

archical structure of the Church and a juridical expression

of the oneness of the spiritual authority derived from

Christ .
10

If the bishop has the fullness of governmental power—legislative,
executive, and judicial—it is argued that no one could enforce spe-
cific requirements of the American concept of “due process” against

the bishop; he would (in person or through his delegate), by reason

6



of the unity of authority centered in himself, be legislator, adminis-

trator, law-enforcer, prosecutor, judge, and jury.

In response to this approach, three considerations seem to be

pertinent. First: a constitutionally dictated separation of powers,

as realized, for example, in the United States, is a special doctrine

of government whose particular features are not to be identified

with the requirements of “due process.” Many of the requirements

of “due process,” both substantive and procedural, are relevant to

all forms of government, even the most centralized. The right to

be heard in defense of one’s rights, for example, is not limited to

those who live in a government characterized by separation of

powers. The particular way in which authority is distributed, or not

distributed, in a given society differs according to the nature and

traditions of the society itself; guaranteeing fundamental fairness

against abuse of authority should be the concern of every society

regardless of the particular arrangement of legislative, executive, and

judicial powers in the governmental structure of the society.

Secondly: the approach, if valid, would argue against protections

from abuse of authority already provided in the Church by the pres-

ent Code of Canon Law. Elaborate procedures are prescribed which

a bishop must follow in the removal of pastors
;

11
detailed rules con-

cerning the competence of courts, right to counsel, admissibility of

evidence, burden of proof, number of judges, and availability of

appeal, surround the exercise of judicial power
;

12 and a bishop is

required regularly to enact diocesan legislation “in synod.”
13

All

of these are in the nature of procedural limitations upon the bishop,

and yet they have been thought to be consistent with the centraliza-

tion of all governmental authority in the local bishop.

Thirdly: the approach seems to presume that securing the protec-

tion of basic human rights to members of the ecclesial society is

equivalently to undermine the authority of the bishop. “Due

process” does place limitations on a bishop’s exercise of power, but,

so far from undermining his authority, it does much to win respect

for it, and so enables him to govern more effectively. The declara-

tion and protection of fundamental rights by guaranteeing proper

substantive and procedural safeguards is one of the most important

exercises of governmental authority by the bishop. If they are

genuine rights, the bishop loses nothing by being required to respect

them.

7



b. Vatican II Development

It seems to the members of this Society that the present moment

in the history of mankind imperatively calls for further development

in the recognition of fundamental fairness in the governmental life

of the Church. We believe this position to be solidly founded in the

teaching of the Second Vatican Council:

A sense of the dignity of the human person has been im-

pressing itself more and more deeply on the consciousness

of contemporary man. And the demand is increasingly

made that men should act on their own judgment, enjoying

and making use of responsible freedom, not driven by co-

ercion but motivated by a sense of duty. The demand is

also made that constitutional limits be set to the powers

of government, in order that there may be no encroach-

ment on the rightful freedom of the person and of asso-

ciations .
14

If conscientious cooperation between citizens is to achieve

its happy effect in the normal course of public affairs, a

positive system of law is required. In it should be estab-

lished a division of governmental roles and institutions,

and, at the same time, an effective and independent system

for the protection of rights. Let the rights of all persons,

families, and associations, along with the exercise of those

rights, be recognized, honored and fostered . 15

Each of these statements refers directly not to the Church but to

civil society. But they have obvious implications for the Church,

since the Church is and must ever be “a sign and a safeguard of the

transcendence of the human person.”16 It would be unfortunate if,

while civil societies labored to build “an effective and independent

system for the protection of rights,” the Church allowed itself to

remain at a lower stage in the development of adequate safeguards

for the protection of human rights. The ferment of the gospel, which

is especially active in the Church of our time, is arousing in the

hearts of Christians an irresistible demand that the human dignity

of each member of the faithful should be recognized and protected

by suitable legal guarantees .17

That the Church must develop adequate institutions to keep pace

with modern society is implicit in the whole program of aggiorna-

mento which inspired the Second Vatican Council. The Council

8



fathers declared that the Church must always remain in harmony

with the temporal order “so that the mission of the Church may

correspond more adequately to the special conditions of the world

today.”
18

In this regard, the ecclesiology of Vatican II developed

earlier ecclesiologies in a manner consonant with secular develop-

ments in the field of human rights, particularly in the new emphasis

placed on the rights and dignity of each member of the laity.

Let sacred pastors recognize and promote the dignity as

well as the responsibility of the layman in the Church. . . .

Let them confidently assign duties to him in the service of

the Church, allowing him freedom and room for action.

Further, let them encourage the layman so that he may

undertake tasks on his own initiative . . . Furthermore, let

pastors respectfully acknowledge that just freedom which

belongs to everyone in this earthly city .
19

The characteristics of a free man are precisely that he has rights,

that he is not dependent for the enjoyment of his rights upon the

good will of his superiors, and that his rights are effectively pro-

tected so as to be legally inviolable. The aim of “due process” is

precisely to give such inviolability. For men of our time, the legal

protection of inviolable rights in the Church would be an especially

persuasive sign of that just freedom proclaimed by the gospel as

belonging to all men. To the extent that authorities in the Church

are able to secure the fundamental rights of Christians they are

fulfilling an important part of their service as pastors.

c. Disciplinary Matters

It may be asked how resort to the protective procedures of “due

process” is to be reconciled with the virtue of obedience to one’s

bishop. It seems to the members of this Society that the obedience a

bishop legitmately expects when he seeks the unity of the diocesan

apostolate never requires a person unwillingly to give up his Christian

rights. Moreover, obedience may take on new significance as God’s

People accept not only the decisions of their bishop but the con-

sensus of their fellow Christians and the Christian community at

large which explicitly concurs in and supports those decisions.

“Due process” is simply one of the effective ways in which authority

is exercised and obedience realized.

A more precise question may be asked whether in cases where the

local ordinary is himself a party to the dispute he can be bound to

9



accept, or responsibly can bind himself to accept, a decision made

by members of his own diocese.

In purely disciplinary matters it would seem evident that there is

no theological obstacle to a bishop agreeing, with regard to partic-

ular cases and even with regard to whole classes of cases, to abide

by decisions of boards or courts over which he has no direct con-

trol, just as at present he is bounded by canon law to refer disputes

involving his own rights, or temporal goods, or those of the diocesan

curia to tribunals for decision .
20 By freely submitting to the de-

terminations of impartial boards or tribunals in matters to which he

is a party, a local ordinary would win greater respect for his own

integrity and thus govern more effectively.

d. Doctrinal Area

The more difficult question concerns disputes arising in the doc-

trinal area. Here the bishop cannot abdicate his responsibility as

teacher; he must retain his traditional function of giving official

expression to Catholic doctrine. But it is the opinion of the members

of this Society that he must exercise that responsibility with due

regard to the total theological situation. A local ordinary may not

make an absolute norm out of his own personal theological interpre-

tations and arbitrarily forbid the dissemination of views which are

tolerated elsewhere in the Church.

The bishops of a region or of the nation should be mutually

solicitous for the welfare of the Church in every diocese .21 Should a

serious question arise as to whether a given bishop is excessively

strict or excessively permissive, there would be nothing inconsistent

with his episcopal office if he were to allow the matter to be referred

to a panel of his brother bishops for their judgment. Nor, in the

opinion of the members of this Society, would it be at all incon-

sistent with his office as bishop if he were to allow a like referral to

a panel of theologians who have a reputation among their colleagues

for theological competence. Such a panel, on the national level,

would be comparable to the international theological commission

recently established to advise the Congregation for the Doctrine of

the Faith. The members of this Society recommend to the American

hierarchy the establishment of such a national theological commis-

sion.

In view of the great complexity of doctrinal questions at the pres-

ent moment and the increasingly acute sensitivity of the faithful to

10



the right of free inquiry and expression in the Church, it is the opin-

ion of this Society that bishops will best maintain their authority by

involving experts of different theological tendencies and thus taking

advantage of the full resources of the theological community. In this

way they will increase, rather than undercut, confidence in their own

authority as official teachers.

Thus, “due process” should be viewed as a means to an end. It is

useful and important as an instrument to help the Church realize

itself as a community of freedom and truth. Those securing it, in

positions of authority in the Church, show their love for the People

of God, their trust in the working of the Spirit, and their personal

disinterestedness by effectively safeguarding the rights of those

entrusted to their care.

GOVERNMENTAL CONTEXT

Assessment of the adequacy of present structures in the Church

for the protection of rights and resolution of disputes entails a study

of the entire legislative, judicial, and administrative structure of the

Church.

In the area of legislation, such a study reveals, on the one hand,

underutilization of the diocesan synod in the practice of most dio-

ceses
,

22 and on the other, recent experimentation with a type of

legislative “synod” or “diocesan council” which goes beyond the

Code provisions for synods especially in regard to frequency of ses-

sions and participation by religious and laity. In regard to pro-

synodal legislation by the bishop, recent development of priests’

senates and pastoral councils as consultative and collaborative

bodies has opened new opportunities for effective participation in

law-making and in the consequent resolution of conflicting interests

in the Church through the medium of legislation.

In regard to adjudication, Church law affirms the availability of

a judicial remedy for the protection of every right
,

23
but practice

has revealed understaffed tribunals and the consequent unavail-

ability of tribunal processes for all but marriage conflicts. More-

over, the law recognizes no right to judicial review of administrative

decisions of ecclesiastical authorities.

Administrative decisions of bishops are reviewable only by one or

another of the Sacred Congregations at Rome, a process which

11



experience often has shown to be unsatisfactory because of distance,

requirements of secrecy, unavailability of evidence and witnesses,

decisions rendered without accompanying findings and reasoned

opinions, and other failures in regard to contemporary standards of

fundamental procedural fairness.

The contemplated revision of the Code of Canon Law envisions a

broader use of courts for the judicial resolution of conflicts of all

kinds, and, in particular, envisions the creation of administrative

tribunals in the Church.- 4 The Synod of Bishops, meeting in Rome

on October 7, 1967, voted unanimously for the establishment of

courts to provide review of administrative decisions. Such courts

will fit easily into the legal climate of this nation in which the

process of judicial review traditionally has sought to provide effec-

tive protection against arbitrary administrative action. It is ex-

pected that the new Code will delineate the forms such tribunals

will take, their competence, and rules of procedure applicable to

them. The value of judicial precedent and the interpretation of

law afforded by the adjudication of concrete cases will enrich the

societal life of the faithful.

It is in the administrative area of government that the Church is

experiencing the fastest rate of growth, with the creation of increas-

ing numbers of administrative boards, departments, and agencies

to supplement the bishop’s personal administrative activities. Per-

sonnel boards, liturgical commissions, parish councils, and other

administrative bodies are emerging in nearly every diocese. The

proliferation of administrative powers necessarily entails an increase

in the number of persons entitled to exercise the discretion proper

to administrative authority, and hence, an increase in the dangers

to human rights and freedom that are inherent in uncontrolled and

unchecked discretionary power.

The Code of Canon Law is not without concern for limiting ad-

ministrative discretion, but such checks as it establishes (e.g. synodal

examiners, diocesan consultors, councils of temporalities) have been

minimal and are, in many ways, unsuited to the forms of adminis-

trative entity coming into existence today.

Procedural fairness in all aspects of the administrative life of the

Church is one of the pressing needs of our time; indeed, it is the

conviction of the members of this Society that the greatest promise

for removing causes of conflict in the Church lies in the elimination

12



of unnecessary discretionary power in ecclesiastical administrators,

and in the development of effective guidelines, controls, and checks

upon necessary discretionary power.

It is, consequently, to the resolution of conflicts involving the

exercise of administrative authority in the Church that this report

principally directs itself
;
it is in this area that present-day conflicts

are most numerous, and it is in this area that grievances most often

are based on the denial of fundamental Christian rights.

PROCESS FOR CONCILIATION

Love your enemies, do good to those who hate you, bless

those who curse you, pray for those who treat you badly.

To the man who slaps you on one cheek, present the other

cheek too; to the man who takes your cloak from you, do

not refuse your tunic. Give to everyone who asks you, and

do not ask for your property back from the man who robs

you. Treat others as you would like them to treat you .52

It is not the litigious, but the poor in spirit who are called blessed

by Jesus
;

26 not judges, but peacemakers who are promised a special

reward in the kingdom . 27 Forgiveness from the Father is asked as

“we have forgiven those who are in debt to us.”28

The teaching of Christ on love of enemies, peace-making, and

forgiveness is specifically applied by St. Paul to litigation. Chris-

tians are rebuked by him for litigating with one another before

unbelievers .
29

Christians are told that “it is bad enough for you to

have law suits at all against one another
;
oughtn’t you to let your-

selves be wronged, and let yourselves be cheated ?”30

In secular situations, litigation is a last resort. Few controversies

capable of judicial resolution are judicially resolved. Conflicts so

acute that the parties to them seek the counsel of lawyers are nor-

mally resolved by the lawyers through a negotiated settlement. Even

in the administration of the criminal law, compromise is the usual

procedure. Courts function chiefly to set the outer limits within

which compromise will be made. They could not possibly adjudi-

cate all conflicts which lawyers could put before them. Without

lawyers to resolve most conflicts the courts could not work at all.

13



Litigation as a way of reaching a just result requires some sort

of equality between the parties, an equality which courts try to

insure by isolating the judicial procedure from factors extraneous

to the issue, but which no court can insure if the parties are unequal

in their resources and ability to engage in protracted litigation. Few

persons have the resources and ability to engage in protracted litiga-

tion with an institution.

The Code of Canon Law itself discourages litigation as a method

of resolving disputes, and urges, in its stead, a process of conciliation:

Since it is highly desirable that litigation be avoided

among the faithful, the judge shall admonish the parties

between whom some civil controversy about their own

private affairs has arisen and which they have

taken to court to have settled by judicial trial, to come to

a compromise, if there appears to be some hope of a

friendly settlement. The judge can satisfy this duty either

before the parties are summoned to court or when they are

for the first time in court or finally at any time that he

deems most opportune and effective for proposing a com-

promise.31

For these several and convergent reasons, the members of this

Society believe that in the Church, which should not only study

secular example but also provide example for the world, the primary

process for the resolution of disputes should not be a process for the

assertion of legal rights but a process for the conciliation of human

persons.

It is the opinion of the Society that the following elements are

essential to any process for conciliation:

1. Each participant must have the opportunity of a face-to-face

dialogue with the person with whom he is in conflict. To be

treated as a human person is to be given not only a hearing,

but a response. There is no substitute for the dialogue of

persons.

2. Unmediated dialogue may become debate; each participant,

therefore, must have the opportunity of stating his side of the

conflict to a conciliator who will attempt to lead the partici-

pants to be reconciled with one another. The conciliator

should be informed of the facts and feelings of each partici-

14



pant so that he may understand what each participant believes

to be “the real reason” for the dispute.

3. Dialogue and mediation will fail if either side is convinced

that abstract principles such as “the right of conscience” or

“the rights of authority” be vindicated at any cost. There are

few imperatives of conscience that make only one course of

action mandatory, and few rights of authority which can be

asserted in only one specific way.

4. Delay and concealment of relevant information have no place

in a process of conciliation. Wounds should be healed quickly.

Persons should not be left in suspense about their status for

protracted periods. The candor of brothers, not the paternal-

istic assumption that the truth cannot be borne, must char-

terize exchange designed to heal.

5. The obligation rests with each person in authority or guided

by authority to teach by his example that he belongs to a

religion whose essence is love.

There is appended to this report a suggested plan for the estab-

lishment and procedures of a Process for Conciliation (Appendix

A). The plan is intended to be only a model, and it would be ex-

pected that individual dioceses would adapt its provisions to local

needs, or otherwise improve upon them in furtherance of the com-

mon good of the faithful.

PROCESS FOR ARBITRATION

Hopefully the vast majority of controversies will be settled

through the Process for Conciliation. But because this will not

always be possible, it is the opinion of the Society that there should

be established a Process for Arbitration for the resolution of disputes

not resolved by conciliation.

Arbitration is defined as the reference of a dispute, by voluntary

agreement of the parties, to an impartial person or persons for de-

termination on the basis of evidence and arguments presented by

such parties, who agree in advance to accept the decision of the

arbitrator or arbitrators as final and binding.

In referring a matter to arbitration, parties are presumed to have

explored every avenue of negotiation and settlement. It is as a last

15



resort that they call upon impartial persons for a definitive decision

and agree to abide by the result. There is a note of formality in

arbitration proceedings, commensurate with the seriousness and

importance which should characterize issues brought for resolution

to such a process, and there should be some form of recording the

proceedings. The time element involved in the various steps of

arbitration should be enforced since undue delay prolongs injustice,

and so is itself unjust.

An arbitrator must personally be neutral; he must be objective,

a person with judicial temperament, able to listen well, to ask good

questions, to understand each party’s point of view. The principle

of subsidiarity would call for a decision being made on a local level

whenever sufficient competence is available; on the other hand, the

principle of impartiality would indicate that a panel of arbitrators

should be selected on a broader basis than the merely diocesan. A

regional panel of arbitrators would be highly desirable.

As with the Process for Conciliation, so in regard to Arbitration,

the proposals of this Society do not represent a radical innovation

in the governmental life of the Church. The Code of Canon Law,

in discouraging judicial litigation as a means of resolving disputes,

urges in its stead a process for arbitration:

In order to avoid judicial litigation, the parties may also

make an agreement by which the controversy is committed

to the judgment of one or several persons who shall decide

the dispute according to law, or deal with the affair accord-

ing to the rules of equity. If they are to follow the rules of

law, they are called arbitri; if they are to follow the dic-

tates of equity, they are called arbitratores .
32

There is appended to this report a suggested plan for the estab-

lishment of a Process for Arbitration (Appendix B). The plan is

intended to be only a model, and it would be expected that individ-

ual dioceses would adapt the provisions to local needs, or otherwise

improve upon them in furtherance of the common good of the faith-

ful. Moreover, in a matter so complex as this, there are definite

advantages to broad experimentation. For this reason, dioceses

which already have initiated arbitration procedures according to a

plan different from the one proposed in this report are encouraged

to continue with what they have so that eventually a proper evalua-

tion can be made of all programs operative in this nation before any

particular process or processes be solidified into legislation.

16



JUDICIAL PROCESS

Notwithstanding the Christian preference for resolving disputes

through a process of conciliation of persons rather than through a

process for the assertion of legal rights, there remain values indige-

nous to the judicial process which should not be unavailable to the

societal life of the Church. Judicial interpretation of law, judicial

delineation of rights, increasingly more precise from case to case,

and judicial precedent, especially in the area of defining and pro-

tecting Christian rights, are values which the members of this

Society would regard as fundamental to an enriching of the govern-

mental life of the Church.

It is the recommendation of the Society, therefore, that pending

the establishment of administrative tribunals as part of the revision

of the Code of Canon Law, Ordinaries delegate judicial jurisdiction

either to existing diocesan tribunals, or to newly created experi-

mental tribunals, for the resolution of disputes between persons in

the Church and administrative authorities or bodies within the dio-

cese. It would be hoped that the experience of such judicial proc-

esses would provide the Church with a valuable source of direction

in the ongoing studies of the Commission for the Revision of Canon

Law.

STRUCTURING ADMINISTRATIVE DISCRETION

Not only is it important for ecclesial society to provide mechan-

isms for the peaceful and orderly conciliation, arbitration, and

judicial resolution of disputes when they arise, but also to create, as

far as is possible, an atmosphere of Christian living in which disputes

are less likely to occur. As indicated earlier in this report, disputes

between individual members of the Church and persons in positions

of authority in service to the Church arise from a variety of situa-

tions in which individuals consider themselves aggrieved by admin-

istrative action on the part of authority.

Administrative action usually involves the exercise of a large

amount of discretion on the part of administrators; and to the ex-

tent that such discretion is uncontrolled and unchecked there exist

wide possibilities not only for administrative actions which are in

fact arbitrary and unjust, but, more significantly for the rise of

17



disputes in the ecclesial community, manifold possibilities for wide-

spread supposition on the part of those affected that the actions

were arbitrary and unjust. Whence arise a proliferation of com-

plaints against authority, of accusations and counter-accusations,

and of long and bitter conflicts.

No governmental system in history has been without significant

discretionary power; none can be, and the Church’s governing

authority should be no exception. Discretion is indispensable for

tailoring decisions to unique facts and circumstances in particular

cases, and for creative solutions to new problems. Total elimination

of discretionary power would cripple authority’s service to the

people by depriving that service of all flexibility.

The conceded need for necessary discretionary power in Church

administrators, however, must not be allowed to becloud one’s

vision either of the large opportunities for abuse of such powers or

of the co-existence of much unnecessary discretionary power which

has been allowed to grow up in the Church.

There is appended to this report a series of proposals for struc-

turing administrative discretion (Appendix C)
;

it is the opinion of

the members of this Society that the preventive steps therein sug-

gested would do much to eliminate unnecessary discretionary power

in ecclesiastical administrators, and to minimize the likelihood of

injustice, real or supposed, following upon the exercise of adminis-

trative authority in the Church.

Appendix A

PROCESS FOR CONCILIATION

ARTICLE I. ESTABLISHMENT

1. Each diocese accepting this proposal shall set up a “Council of

Conciliation,” composed as follows:

Two persons appointed by the Ordinary of the diocese;

Two persons elected by the Priests’ Senate of the Dio-

cese or, if there is no senate, by all the clergy of the

diocese

;

18



One person elected by the faculty of the Catholic col-

lege of the diocese. If there is more than one Catholic

college, the colleges, in alphabetical order, shall rotate

the election. If there is no Catholic college, then the

Priests’ Senate shall elect three persons, or if there is no

senate, all the clergy of the diocese shall elect three

persons.

2. The term of office shall be three years.

3. These exceptions shall apply to the initial members of the Coun-

cil:

The first appointee of the Ordinary shall have a term of

three years.

The person receiving the largest vote from the Priests’

Senate or clergy shall have a term of two years.

The person elected by the Catholic college faculty shall

have a term of two years.

The second appointee of the Ordinary shall have a

term of one year.

The person receiving the second largest vote from the

Priests’ Senate or clergy shall have a term of one year.

4. The Council shall elect its Chairman, Secretary and Treasurer.

5. The diocese shall reimburse the Council for its expenses upon

presentation of a statement signed by the Chairman and Treas-

urer.

6. The establishment of the Council, its purposes, the biographies of

its members, and its rules of operation shall be announced by a

letter from the Ordinary to the clergy and faithful of the diocese

and by appropriate publicity in the diocesan and secular press.

ARTICLE II. STARTING THE PROCESS

1. Any person in conflict with the Ordinary of the diocese, an ap-

pointee of the Ordinary, a priest in the diocese, a Catholic col-

lege, hospital, or other charitable or educational institution in

the diocese, a parish or a diocesan council, a parish or diocesan

school board, a Catholic cemetery organization or burial associa-

tion, or any other person, group or institution exercising admin-

istrative authority in the diocese, may have recourse to the

Council.

19



2. A person having recourse to the Council shall be styled the

“initiating participant,” and the person, group or institution

with whom he is in conflict shall be styled the “convoked par-

ticipant.” Recourse to the Council shall be styled “the initia-

tive,” and the acceptance of a process for reconciliation by the

convoked participant shall be styled “an affirmative response.”

The conflict shall be designated as “the problem.”

3. An initiating participant may take the initiative by sending to

any Member of the Council a statement that he has a problem

involving one or more of the persons, groups or institutions de-

scribed in paragraph one, and setting forth the gist of the prob-

lem.

4. The Member receiving this statement shall contact the con-

voked participant both in writing and by telephone, shall ap-

prise him of the problem stated by the initiating participant,

and shall inquire if he will accept conciliation. The convoked

participant shall be given a description of the purposes of the

Council of Conciliation, the biographies of its members, and a

copy of its rules of procedure. He shall be asked if he would

accept as a conciliator the Member addressed by the initiating

participant or if he would prefer that the Chairman designate

a different Member or Members. He shall be advised that the

Council is supposed to proceed with dispatch and that his affirm-

ative response to the initiative is expected within two weeks of

the notice to him.

5. If the convoked participant fails to give an affirmative response,

the Member shall refer the matter to the Chairman who shall

endeavor to persuade the convoked participant to give such

response.

6. If, four weeks from the date of the initiative, no affirmative

response has been made by the convoked participant, the Mem-

ber shall refer the matter to the Ordinary who shall endeavor to

persuade the convoked participant to give such response.

7. In the event that the convoked participant is the Ordinary of

the diocese himself, the provisions of paragraph six shall not

apply, and if, four weeks from the date of the initiative, there is

no affirmative response, the Member shall refer the matter to the

Chairman of the Bishops’ Committee on Arbitration and Media-

20



tion, who, by telephone and letter and, if possible, by personal

conference, shall endeavor to persuade the Ordinary to give such

response.

8. In the event that the Member fails to discharge any of his re-

sponsibilities for referring the matter to the Ordinary or the

Chairman of the Bishops’ Committee, as the case may be, the

initiating participant may ask the Chairman of the Council of

Conciliation to make the referral; should the Chairman fail to do

so, the initiating participant may make the referral himself.

ARTICLE III. THE PROCESS

1. The Member addressed by the initiating participant and agreed

to by the convoked participant shall act as conciliator in the

process. In the event there is no agreement, the Chairman shall

designate a Member or Members to act as conciliator or concilia-

tors in the process.

2. Within three weeks of the affirmative response, the conciliating

Member shall meet alone with each participant for oral discus-

sion of the problem.

3. Within one week of the second of these conferences, the Member

shall meet with both participants together and endeavor to guide

them to a peaceful resolution of their problem. The Member

shall schedule as many of these joint meetings as seem to him

to be necessary in order to progress to conciliation.

4. The Member shall endeavor to assure that each participant

answers the questions which the other participant believes are

essential if he is to understand the actions of the other. While

the Member should exercise his discretion, he should act in the

knowledge that paternalistic concealment of facts is no longer

an acceptable mode of behavior to many persons, and he should,

therefore, encourage a trust in candor on both sides.

5. The first joint meeting of the participants and the Member shall

be restricted to these persons. Thereafter, in the discretion of

the Member, each participant may have with him one or two

advisers—theologians, lawyers, friends, or whomever he chooses.
In the event that one participant desires to have such advisers,

and the Member agrees, the Member shall notify the other

21



participant that he may come with an equal number of advisers.

In the discretion of the Member and with the agreement of the

participants other Members of the Council of Conciliation or

other persons may join the meetings from time to time.

6. If the problem is resolved by agreement, the Member shall pre-

pare a summary statement of the problem and its resolution,

and shall submit it for the approval and signature of the partici-

pants. If the problem is unresolved after the meetings arranged

by the Member have been held, and in any event if the problem

is unresolved six months from the initiative, the Member shall

ask the participants if they are willing to continue discussion of

the problem with him, with another Member of the Council,

with a person designated by the Ordinary, or, in a case where

the Ordinary is participant, with a person designated by the

Chairman of the Bishops’ Committee on Arbitration and Media-

tion. If the participants agree in their response, the Member

shall arrange the desired continuation. If one or more partici-

pants declines to engage in further discussion, the Member shall

file a report with the Council and, where the Ordinary is par-

ticipant, with the Chairman of the Bishops’ Committee on Arbi-

tration and Mediation. This report shall contain the names of

the participants, a summary of the problem and the discussions

taken to resolve it, and certification by the Member that, despite

the good faith of the participants, no resolution could be reached.

7. The Member shall have no power to force the participants to

adopt a solution. He shall have power, however, to determine

that any participant is not cooperating in good faith. Prima

facie evidence of lack of good faith will be failure to attend three

scheduled meetings, failure to respond to a substantial number

of questions which the Member believes appropriate, or failure to

suggest any way of accommodating the interests of the other

participant. In the event that for these or other reasons the

Member believes that a participant is not cooperating in good

faith, he shall apprise him of this belief orally and, failing coop-

eration, shall apprise him again in writing. If there is no coop-

eration after the written communication, the Member shall at

once notify the Ordinary of the diocese, or, if the Ordinary is a

participant, the Chairman of the Bishops’ Committee on Arbi-

tration and Mediation. The Ordinary or the Chairman shall

endeavor to persuade the participant to cooperate.

22



8. Meetings shall be private without publicity. All communications

made to a Member or between participants shall be treated as

confidential by all who share in them. If the problem is resolved

by agreement, and the parties agree to publicizing the solution,

announcement of it shall be made. If there is no agreement on

a solution or on publicizing it, no announcement shall be made.

Appendix B

PROCESS FOR ARBITRATION

ARTICLE I. ESTABLISHMENT

1. Each diocese accepting this proposal shall set up an “Office of

Arbitration.” The Office shall consist of five persons, two of

whom shall be appointed by the Ordinary, and three shall be

selected by the Priests’ Senate, or, if there is no senate, by all the

clergy of the diocese.

2. The members of the Office of Arbitration shall serve for a term

of three years. No member shall have more than two consecutive

terms in office.

For the purposes of continuity, the terms of the initial members

shall be staggered in the following manner:

The first appointee of the Ordinary shall have a term of

three years.

The second appointee of the Ordinary shall have a term

of two years.

The first person chosen by the Priests’ Senate, or clergy

of the diocese, shall have a term of three years.

The second person chosen by the Priests’ Senate, or

clergy of the diocese, shall have a term of two years.

The third person chosen by the Priests’ Senate, or clergy

of the diocese, shall have a term of one year.

3. The Office of Arbitration shall select from its own members a

chairman and a secretary-treasurer, each of whom shall serve

for a term of one year in that respective capacity.

4. It shall be the responsibility of the Office of Arbitration:

a. to select a sufficient number of qualified persons to be arbi-

trators
;

23



b. to accept all complaints made to it in writing by any member

of the diocese and to determine whether or not the case falls

within the competence of the Office as set forth in Article IV

;

c. to assist the parties in the selection of an arbitrator;

d. to supervise and administer the over-all program and to

interpret rules of procedure to be followed in arbitration

when questions are referred to it by either the arbitrators or

the parties themselves.

ARTICLE II. SELECTION OF ARBITRATORS

1. Arbitrators should be selected for their impartiality and com-

petence.

a. Impartiality. The arbitrator must receive no direct benefit

from the outcome of the decision he makes.

The following, therefore, are disqualified to serve as arbi-

trators :

i. Anyone related by consanguinity or affinity to one or

another of the parties, or who is a guardian of one of the

parties.

ii. Anyone involved with one or another of the parties in

such a way as to have a particular interest in the outcome

of the dispute.

iii. Anyone who can be shown to be inimical to one of the

parties.

b. Competence. The arbitrator should have some understanding

of how a hearing should be conducted. Expertise in the area

under discussion is helpful, but not absolutely necessary. If

the arbitrator is not himself an expert, he should feel free to

call in experts during the hearing.

2. Method of Selection in General.

a. It is the responsibility of the Office of Arbitration in each

diocese to select a panel of arbitrators from among the laity,

religious, and clergy. It is not necessary that a person be a

member of the diocese in order to be included on the panel of

arbitrators. It is recommended that there be an exchange of

panels between neighboring dioceses where possible.

24



b. The Office of Arbitration has the responsibility of screening

candidates for the panel of arbitrators. The Office shall

solicit nominations from any organized group in the diocese,

or in any other way to be determined by the Office itself.

c. There shall be maintained a minimum panel of ten arbitra-

tors in order to insure an adequate choice of selection for the

parties.

3. Method of Selection for a Specific Case.

a. If the arbitration agreement applicable to a particular case

provides a method of appointment of arbitrators, this method

shall be followed. In the absence thereof, or if the agreed

method fails or for any reason cannot be followed, or when

an arbitrator appointed fails or is unable to act, and no

provision has been made for the appointment of his successor,

the Office of Arbitration on application of a party shall ap-

point one or more arbitrators. An arbitrator so appointed

has all the powers of one specifically named in the agreement.

b. In the event the arbitration agreement does not provide a

method of appointment of arbitrators, the Chairman of the

Office of Arbitration shall appoint arbitrators according to

the following procedure:

i. The Chairman of the Office of Arbitration shall submit

to each party a list of arbitrators, large enough to assure

adequate choice.

ii. The parties shall strike out those names not acceptable to

themselves and list the others in the order of their prefer-

ence.

iii. The Chairman of the Office of Arbitration shall then ap-

point three arbitrators, following as closely as possible

the selection of the parties.

iv. The Office of Arbitration shall draft and enforce its own

rules with regard to time limits for making the selection,

and the consequence of not oberving the time limits.

ARTICLE III. PROCEDURE

1. Initiation of Arbitration

The parties shall submit to the Chairman of the Office of

Arbitration a written statement setting forth the nature of

the dispute and the remedies sought.

25



2. Time and Place of Hearing

The arbitrators shall appoint a time and place for hearings

and notify the parties not less, than five days before each

hearing.

3. Representation by Counsel

Parties to the dispute may be represented at hearings by

counsel or other authorized representative.

4. Attendance at Hearings

Persons having a direct interest in the arbitration are en-

titled to attend hearings. It shall be in the discretion of

the arbitrators to determine the propriety of the attend-

ance of any other person.

5. Adjournments

For good cause the arbitrators may adjourn the hearing

upon the request of a party or upon their own initiative,

and shall adjourn when all the parties agree thereto.

6. Arbitration in the Absence of a Party

Arbitration may proceed in the absence of any party who,

after due notice, fails to be present or fails to obtain an

adjournment.

7. Evidence

The arbitrators shall hear and determine the controversy

upon the evidence produced. Parties may offer such evi-

dence as they desire and shall produce such additional

evidence as the arbitrators may deem necessary to an un-

derstanding and determination of the dispute. The arbitra-

tors shall judge the relevancy and materiality of the evi-

dence offered, and conformity to legal rules of evidence

shall not be necessary. All evidence shall be taken in the

presence of all of the arbitrators and all of the parties

except where any of the parties is absent in default or has

waived his right to be present. The arbitrators may re-

quire the parties to submit books, records, documents, and

other evidence.

8. Evidence by Affidavit

The arbitrators shall have the power to administer oaths

and to take evidence from witnesses by deposition when-

ever witnesses cannot attend the hearing.

26



9.

Order of Proceedings

A hearing shall be opened by the recording of the place,

time, and date of hearing, the presence of the arbitrators

and parties, the presence of counsel, if any, and the receipt

by the arbitrators of initial statements setting forth the

nature of the dispute and the remedies sought.

The arbitrator may, in his discretion, vary the normal

procedure under which the initiating party first presents

his claim, but in any case shall afford full and equal op-

portunity to all parties for presentation of relevant proofs.

The names and addresses of all witnesses, and exhibits

offered in evidence, shall be made a part of the record.

10. Majority Decision

In the course of the hearing, all decisions of the arbitrators

shall be by a majority vote. The award shall also be made

by majority vote unless the concurrence of all is expressly

required by the terms of a particular arbitration agree-

ment.

11. Closing of Hearings

The arbitrators shall inquire of all parties whether they

have any further proofs to offer or witnesses to be heard.

Upon receiving negative replies, the arbitrator shall de-

clare the hearings closed. The hearings may be re-opened

by the arbitrators on their own motion, or on the motion

of either party, for good cause shown, at any time before

the award is made.

12. Time of Award

The award shall be rendered promptly by the arbitrators

and, unless otherwise agreed by the parties, not later than

thirty days from the date of closing the hearings, or if

oral hearings have been waived, then from the date of

transmitting the final statements and proofs to the arbi-

trator.

13. Form of Award

The award shall be in writing and shall be signed by the

arbitrators.

14. Stenographic Record

Provision for recording the entire proceedings may be made

at the request of either party, or at the discretion of the

27



arbitrators. The total cost of such a record shall be shared

equally among parties ordering copies, unless the parties

agree otherwise.

15. Interpretation and Application of Rules

Questions concerning the interpretation of these rules shall

be referred to the Office of Arbitration for final decision.

ARTICLE IV. COMPETENCE

1. The Process for Arbitration shall extend:

a. To all disputes between individual members of the Church,

or groups within the Church, where the controversy concerns

an ecclesiastical matter;

b. To all disputes between a person and a diocesan administra-

tor or administrative body, where it is contended that an act

or decision (including administrative sanctions and dis-

ciplinary actions) has violated Church law or natural equity;

c. To all disputes between administrative bodies of the diocese

when the dispute involves conflict of competency.

2. The following, however, shall not be subject to settlement by

arbitration

:

a. Criminal cases in the strict sense (not administrative sanc-

tions and disciplinary actions)

;

b. Non-criminal cases where there is question of dissolving a

marriage

;

c. Matters pertaining to benefices when there is litigation about

the title itself to a benefice unless the legitimate authorities

sanction arbitration;

d. Spiritual matters whenever the award requires payment by

means of temporal goods.

3. Disputes involving temporal ecclesiastical goods or those things

which, though annexed to the spiritual, can be dealt with apart

from their spiritual aspect, may be settled through arbitration,

but the formalities of law for the alienation of ecclesiastical

property must be observed if the matter is of sufficient impor-

tance.

28



ARTICLE V. EXPENSES

1. All members of the Office of Arbitration, as well as all arbitrators

shall serve gratis. The parties involved in the arbitration, how-

ever, shall be assessed a fee in an amount to be determined by

the Office of Arbitration to cover office expenses.

2. The expenses of witnesses shall be paid by the respective parties

producing witnesses. Traveling and other expenses of the arbi-

trators, and the expenses of any witnesses or the cost of any

proofs produced at the direct request of the arbitrators, shall be

borne equally by the parties unless they agree otherwise, or

unless the arbitrator in his award assesses such expenses or any

part thereof against any specified party or parties.

ARTICLE VI. COURT OF ARBITRATION

1. There shall be established in each diocese a Court of Arbitration.

This Court will function as a board of review. It will not review

the merits of the case as such, but rather its purpose will be to

hear and render decisions on complaints of nullity or requests

for corrections or modifications of the award.

If a tribunal already exists in a particular diocese, this tribunal

will perform the function of the Court of Arbitration. A special

turnus of judges shall be assigned to handle matters of this

nature.

2. The Court of Arbitration shall be competent to review an arbi-

tration award where it is alleged that:

a. The award was procured by corruption, fraud, or other undue

means

;

b. There was evident partiality on the part of an arbitrator;

c. The arbitrators exceeded their powers;

d. The arbitrators refused to postpone a hearing notwithstand-

ing the showing of sufficient cause for such postponement, or

refused to hear evidence material to the controversy, or

otherwise conducted the hearing so as prejudicially to affect

a substantial right of one of the parties;

e. The method of selection of arbitrators, agreed upon by the

parties beforehand, was not followed;

29



f. The decision was based on documents which are spurious;

g. New evidence has been discovered of a character which de-

mands a contrary decision;

h. Principles of fundamental procedural fairness were violated.

3. Where the Court of Arbitration decides in favor of the nullity

of an arbitration award, the Court can order a re-hearing either

before the arbitrators who made the award or before entirely

new arbitrators chosen in the same manner as the original arbi-

trators.

Where an application to vacate an award or nullify a decision is

denied, the Court of Arbitration shall confirm the award.

4. Correction or Modification of the Award

Where it is alleged that there was a material error in transcrib-

ing the award, in relating the petitions of the parties or the facts,

in describing any person, thing, or property referred to in the

award, in making calculations or in matters of form not affect-

ing the merits of the controversy, corrections may be made by

the arbitrators themselves upon petition of the party, unless the

other party opposes such corrections. In the latter event the

matter shall be referred to the Court of Arbitration for decision

and, where appropriate, for correction or modification of the

Award.

ARTICLE VII. FORM OF AGREEMENT

1 . General Agreement

For arbitration procedures to be of maximum service to a diocese,

it is highly desirable that as many persons as possible enter into

prior agreement to submit to arbitration disputes that may arise

among them which cannot be settled by conciliation.

It is desirable, therefore, that the Ordinary, after establishing by

law the Office of Arbitration, enter into a contract with the

priests of the diocese in which he, as well as they, agree to sub-

mit to arbitration any controversy that may arise among them

in the diocese. If there is to be any limitation of the matters

which may be brought to arbitration, over and above the

limits set forth in Article IV above, this should clearly be stated

in the contract.

30



A sample agreement of this kind reads as follows:

We, the bishops and priests of the diocese of
,

recognizing the value of a process for arbitration com-

mensurate with the needs of our times and the expecta-

tions of our people, vote for the establishment of an

Office of Arbitration in this diocese, and agree to submit

to arbitration, in accordance with the rules and proce-

dures of such Office, any and all controversies arising

among all in the diocese.

2. Specific Agreement

In individual instances of submission of disputes to arbitration

it is advisable for the parties to sign a specific agreement, either

by way of modification of a general arbitration agreement or in

the absence of such a general agreement, covering such matters

as the number of arbitrators, the method of their selection, and,

where no general arbitration agreement exists between the

parties, the voluntary commitment to accept the decision of the

arbitrator (s) as final and binding.

Even in those cases where arbitration is consequent upon a prior

general agreement, it is desirable that, at the time of the initia-

tion of arbitration, both parties sign a specific agreement of this

nature. A sample of such an agreement might read:

We, the undersigned parties, hereby agree to submit

to arbitration under the rules of the Office of Arbitra-

tion, the following controversy: (Cite briefly). We fur-

ther agree that the above controversy be submitted to

(1) (3) arbitrators, selected from the panel of arbitra-

tors submitted by the Office of Arbitration. We further

agree that we will faithfully observe this agreement

and the rules, and that we will abide by and perform

any award rendered by the arbitrators.

Appendix C

STRUCTURING ADMINISTRATIVE DISCRETION

I. DELINEATION OF COMPETENCE

The first step in confining discretionary power within proper

limits, and in controlling its exercise within those limits, is a clear

31



delineation of the competence of the particular administrative organ

or individual administrator. Such delineation should be found in the

enabling legislation, or if none such, in the decree of episcopal or

presbyteral authority, which brings the particular administrative

organ into existence.

When the limits of competence are not known either to those

charged with the responsibility of administration or to those who

are to be affected by the acts of administration, opportunity for

misunderstanding, mistrust, and conflict is great.

II. POLICY-STATING

There should be published by an administrator or administrative

body the considerations, the criteria, the standards that will guide

decisions to be made in individual cases.

Thus, for example, a School Board should state its basic policies

in regard to hiring and firing teachers; a diocesan Personnel Board

should make known its criteria for recommending appointments to

pastorates; a Building Commission should publish the guidelines

that will govern its decisions on applications for construction; a

pastor should make clear his standards for the admission of students

to the parochial school within his parish.

Such detailed and precise policy statements would give some

assurance of consistency in reaching decisions, and hence some as-

surance of equal justice by moving from a system of ad hoc determi-

nations of policy in particular cases to a system of pre-announced

policy determinations. By giving parties prior knowledge of the

administrator’s position, knowledgeable efforts to meet standards

and so to receive a favorable administrative decision are made

possible. Moreover, it becomes possible to obtain intelligent review,

not only of published policies before proper authorities, but also, in

conciliation, arbitration, or judicial proceedings, to obtain review

of alleged unfair or arbitrary decisions in individual cases.

Policy-stating should be preceded by an open policy-making pro-

cedure which makes available to interested persons information

concerning what policy problems are under consideration, what

criteria are being considered, and the reasons underlying the pro-

posed policy. Interested persons should be invited to offer sugges-

tions and criticisms.

32



Such a procedure would gain for administrative bodies and ad-

ministrators the benefit of ideas contributed by many qualified

persons, and would minimize subsequent tensions arising out of the

application to individuals of policies of which they had no knowledge

and to which they had no opportunity to raise objections.

III. FINDINGS, REASONS, PRECEDENTS

Written findings of fact and reasoned opinions in support of ad-

ministrative decisions should be issued whenever discretionary

power is exercised in such a way as adversely to affect the rights of

persons in the Church.

Such a procedure would minimize careless or hasty action, insure

the consideration of important facts and ideas, and enable an ad-

versely affected party to change his circumstances, if possible, so as

to obtain a favorable decision in the future. It would also facilitate

judicial review of administrative decisions, and make possible, in

conciliation and arbitration proceedings, intelligent review of alleged

arbitrariness or unfairness.

The writing of reasoned opinions should lead to the development

of a system of precedents to guide future administrative decisions

and to furnish affected parties with a basis for making intelligent

estimates of future administrative action. The resulting growth in

consistency of administrative action in the Church will do much to

minimize suspicion of arbitrariness and injustice.

It is essential that findings, decisions, and precedents be as open

as possible, consistent with appropriate protection of privacy and

confidentiality. Openness is a natural enemy of arbitrariness in the

exercise of discretion, and a natural protection against the hostility

and conflict that abound in an atmosphere of suspected injustice.

Few things spawn as much conflict in the Church as uncontrolled

discretionary power exercised through administrative decisions

secretly made, insulated from criticism, unsupported by findings of

fact, unexplained by reasoned opinions, and free from any require-

ment of consistency in the light of precedents.

IV. FAIRNESS OF PROCEEDINGS

Justice to individual parties in the Church is administered or

denied far more outside than within formal tribunal procedure.

33



Whatever is to be said of the adequacy of provisions in Church law

for the protection of the rights of persons in ecclesiastical court

proceedings, it is essential that adequate procedural protections be

developed for the rights of persons likely to be affected by extra-

judicial discretionary determinations of ecclesiastical administrators.

It is a mandate of fundamental fairness that a person likely to

be adversely affected by administrative action be informed of the

proposed action and of the reasons underlying it, and be given

adequate opportunity to respond.

It is a mandate of fundamental fairness that information concern-

ing a person is not to be used as a basis for administrative action

adversely affecting that person without disclosing to the person that

the information is to be used, and without affording opportunity for

explanation, rebuttal, or denial of the “information” in question.

Exceptions to this principle of fundamental fairness should be ex-

tremely rare and only in the interest of protecting confidentiality

deemed essential to the good order of the ecclesial community .33

FOOTNOTES

1. “. . . the chosen People of God is one ... As members, they share a com-

mon dignity from their rebirth in Christ. They have the same filial grace

and the same vocation to perfection. They possess in common one salva-

tion, one hope, and one undivided charity. Hence, there is in Christ and

in the Church no inequality on the basis of race or nationality, social con-

dition or sex ... all share a true equality with regard to the dignity and to

the activity common to all the faithful for the building up of the Body of

Christ.” Vat. Cone. II, Lumen Gentium, #32.

“Since all men possess a rational soul and are created in God’s likeness,

since they have the same nature and origin, have been redeemed by Christ,

and enjoy the same divine calling and destiny, the basic equality of all

must receive increasingly greater recognition. True, all men are not alike

from the point of view of varying physical power and the diversity of in-

tellectual and moral resources. Nevertheless, with respect to the funda-

mental rights of the person, every type of discrimination, whether social or

cultural, whether based on sex, race, color, social condition, language, or

religion, is to be overcome and eradicated as contrary to God’s intent.”

Vat. Cone. II, Gaudium et Spes, #29.

“Furthermore, let pastors respectfully acknowledge that just freedom which

belongs to everyone in this earthly city.” Vat. Cone. II, Lumen Gentium,

#37.

2. “The laity have the right, as do all Christians, to receive in abundance

from their sacred pastors the spiritual goods of the Church, especially the

assistance of the Word of God and the sacraments.” Vat. Cone. II, Lumen

Gentium, #37.

34



"“Mother Church earnestly desires that all the faithful be led to that full,

conscious, and active participation in liturgical celebrations which is de-

manded by the very nature of the liturgy. Such participation by the

Christian people ... is their right and duty by reason of their baptism.”

Vat. Cone. II, Sacrosanctum Concilium, #14.

3. “. . . the laity . . . share in the priestly, prophetic, and royal office of Christ

and therefore have their own role to play in the mission of the whole

People of God in the Church and in the world. They exercise a genuine

apostolate by their activity on behalf of bringing the gospel and holiness

to men, and on behalf of penetrating and perfecting the temporal sphere

of things through the spirit of the gospel . . . The laity derive the right

and duty with respect to the apostolate from their union with Christ their

Head.” Vat. Cone. II, Apostolicam Actuositatem, #2, 3.

“Upon all the laity, therefore, rests the noble duty of working to extend

the divine plan of salvation ever increasingly to all men of each epoch

and in every land. Consequently, let every opportunity be given them

so that, according to their abilities and the needs of the times, they may

zealously participate in the saving work of the Church.” Vat. Cone. II,

Lumen Gentium, #33.

“Bishops, pastors of parishes and other priests of both branches of the

clergy should keep in mind that the right and duty to exercise the apos-

tolate is common to all the faithful, both clergy and laity, and that the

laity also have their own proper roles in building up the Church.” Vat.

Cone. II, Apostolicam Actuositatem, #25.

“Let sacred pastors recognize and promote the dignity as well as the re-

sponsibility of the layman in the Church. Let them willingly make use

of his prudent advice. Let them confidently assign duties to him in the

service of the Church, allowing him freedom and room for action. Further,

let them encourage the layman so that he may undertake tasks on his own

initiative.” Vat. Cone. II, Lumen Gentium, #37.

4. “Every layman should openly reveal to (his sacred pastors) his needs and

desires with that freedom and confidence which befits a son of God and a

brother in Christ. An individual layman by reason of the knowledge,

competence, or outstanding ability which he may enjoy, is permitted and

sometimes even obliged to express his opinion on things which concern

the good of the Church. When occasions arise, let this be done through

the agencies set up by the Church for this purpose. Let it always be done

in truth, in courage, and in prudence, with reverence and charity toward

those who by reason of their sacred office represent the person of Christ

. . . Let sacred pastors . . . consider with fatherly love the projects, sug-

gestions, and desires proposed by the laity.” Vat. Cone. II, Lumen

Gentium, #37.

“.
. . by reason of the gift of the Holy Spirit which is given to priests in

sacred ordination, bishops should regard them as necessary helpers and

counselors . . . as . . . brothers and friends . . . (the bishop) should gladly

listen to them, indeed, consult them, and have discussions with them

about those matters which concern the necessities of pastoral work and

the welfare of the diocese. In order to put these ideals into effect, a group

or senate of priests representing the presbytery should be established.”

Vat. Cone. II, Presbyterorum Ordinis, #7.

“In dioceses, as far as possible, there should be councils which assist the

apostolic work of the Church either in the field of making the gospel

known and men holy, or in the charitable, social, or other spheres. To

35



this end, clergy and religious should appropriately cooperate with the

laity . . . Councils of this type should be established as far as possible

also on the parochial, interparochial and interdiocesan level as well as in

the national or international sphere.” Vat. Cone. II, Apostolicam Actuo-

sitatem, #26.

. . there must be made available to all men everything necessary for

leading a life truly human, such as . . . the right ... to appropriate informa-

tion.” Vat. Cone. II, Gaudium et Spes, #26.

“By the natural law, every human being has the right ... to be informed

truthfully about public events.” John XXIII, Pacem in Terris, #12.

“In addition, the use of the media is a testament to the Church’s belief in

two fundamental principles of communications, namely, the right to infor-

mation; and the necessity of public opinion within the Church . . . Man’s

right to be informed is a natural, inherent right. It is given him by God

himself. It is not a privilege conferred by any authority ... If there have

been abuses of this right by any authorities in the Church, we members

of the people of God can only regretfully acknowledge the fact and at the

same time strive to amend our ways . . . The right to information, how-

ever, we firmly believe must be stressed today because only a true and

complete knowledge will enable society and man as an individual to stand

secure in an age of intellectual and moral turmoil. Moreover, the corollary

of the right to information is the right to full expression. The distinguished

Commission on Freedom of the Press observed twenty years ago that

‘public discussion is a necessary condition of a free society and that free-

dom of expression is a necessary condition of adequate public discussion’

. . . History affords us many examples of the fact that freedom suffers the

moment man’s inherent right to information begins to be curtailed . . .

Closely associated with man’s right to information is the necessity of

both Church and State to cultivate a healthy public opinion . . . Public

opinion, as a symbol and factor of social cohesion, is always an important

element in every decision that leaders of both Church and State must

make. Those will govern most wisely who attempt most assiduously to

evaluate decisions in terms of such a public opinion . . . (As) Pope Pius

XII enunciated : ‘There would be something missing from the Church’s life

if there were no public opinion within her, a defect for which pastors as well

as the faithful would be responsible.’ ” U.S. Bishops’ Committee for Social

Communications, Statement for World Communications Day, (1967).

5. “. . . while adhering to the methods and requirements proper to theology,

theologians are invited to seek continually for more suitable ways of com-

municating doctrine to the men of their times. For the deposit of faith

or revealed truths are one thing; the manner in which they are formu-

lated without violence to their meaning and significance is another . . .

Theological inquiry should seek a profound understanding of revealed

truth without neglecting close contact with its own times. As a result, it

will be able to help those men skilled in various fields of knowledge to

gain a better understanding of the faith . . . This common effort will very

greatly aid in the formation of priests. It will enable them to present to

our contemporaries the doctrine of the Church concerning God, man, and

the world in a manner better suited to them with the result that they will

receive it more willingly. Furthermore, it is to be hoped that many lay-

men will receive an appropriate formation in the sacred sciences, and that

some will develop and deepen these studies by their own labors. In order

that such persons may fulfill their proper function, let it be recognized that

all the faithful, clerical and lay, possess a lawful freedom of inquiry and

36



of thought, and the freedom to express their minds humbly and coura-

geously about those matters in which they enjoy competence.” Vat. Cone.

II, Gaudium et Spes, #62.

“By the natural law, every human being has the right to . . . freedom in

searching for truth and in expressing and communicating his opinions

within the limits laid down by the moral order and the common good.”

John XXIII, Pacem in Terris, #12.

6. “There is a great variety of associations in the apostolate ... As long as

the proper relationship is kept to Church authorities, the laity have the

right to found and run such associations and to join those already existing.”

Vat. Cone. II, Apostolicam Actuositatem, #19.

“Worthy too of high regard and zealous promotion are those associations

whose rules have been examined by competent Church authority, and

which foster priestly holiness in the exercise of the ministry through an apt

and properly approved rule of life and through brotherly assistance. Thus

these associations aim to be of service to the whole priestly order.” Vat.

Cone. II, Presbyterorum Ordinis, #8.

“From the fact that human beings are by nature social, there arises the

right of assembly and association. They have also the right to give the

societies of which they are members the form they consider most suitable

for the aim they have in view, and to act within such societies on their

own initiative and on their own responsibility in order to achieve their

desired objectives.” John XXIII, Pacem in Terris, #23.

7. “. . . there is a growing awareness of the exalted dignity proper to the

human person, since he stands above all things, and his rights and duties

are universal and inviolable. Therefore, there must be made available to

all men everything necessary for leading a life truly human, such as . . .

the right ... to a good reputation, to respect ... to activity in accord with

the upright norm of one’s own conscience, to protection of privacy and to

rightful freedom in matters religious too.” Vat. Cone. II, Gaudium et Spes,

#26.

“By the natural law, every human being has the right to respect for his

person, to his good reputation . . .” John XXIII, Pacem in Terris, #12.

“Every human being has the right to honor God according to the dictates

of an upright conscience, and therefore the right to worship God privately

and publicly.” John XXIII, Pacem in Terris, #14.

8. “In the use of all freedoms, the moral principle of personal and social re-

sponsibility is to be observed. In the exercise of their rights, individual

men and social groups are bound by the moral law to have respect both

for the rights of others and for their own duties toward others and for the

common welfare of all ... For the rest, the usages of society are to be

the usages of freedom in their full range. These require that the freedom

of man be respected as far as possible, and curtailed only when and in

so far as necessa^.” Vat. Cone. II, Dignitatis Humanae, #7.

9. Vat. Cone. II, Lumen Gentium, #27.

10. 8 New Catholic Encyclopedia 61 (McGraw-Hill, 1967)

11. C.I.C., cc. 2147-2167.

12. C.I.C., cc. 1552-1924; 1933-1959. Cf. Krol, The Defendant in Contentious

Trials (C.U., 1942).

13. C.I.C., cc. 356-362.

37



14. Vat. Cone. II, Dignitatis Humanae, #1.

15. Vat. Cone. II, Gaudium et Spes, #75.

16. Vat. Cone. II, Gaudium et Spes

,

#76.

17. Vat. Cone. II, Gaudium et Spes, #26.

18. Vat. Cone. II, Lumen Gentium, #36.

19. Vat. Cone. II, Lumen Gentium, #37.

20. C.I.C., c. 1572.

21. “As lawful successors of the apostles and as members of the episcopal col-

lege, bishops should always realize that they are linked one to the other,

and should show concern for all the churches. For by divine institution

and the requirement of their apostolic office, each one in concert with his

fellow bishops is responsible for the Church.”
,

Vat. Cone. II, Christus

Dominus, #6.

“From the very first centuries of the Church the bishops who were placed

over individual churches were deeply influenced by the fellowship of

fraternal charity and by zeal for the universal mission entrusted to the

apostles. And so they pooled their resources and unified their plans for

the common good and for that of the individual churches.” Vat. Cone. II,

Christus Dominus, #36.

22. Canon 356 requires a diocesan synod every ten years. Although such

synods were frequent in the pre-Code Church in America, few dioceses have

adhered to the law in this regard in recent decades.

23. C.I.C., c. 1667.

24. The reorganization of the Roman Curia, accomplished by the Apostolic

Constitution Regimini Ecclesiae Universae (1967), pointed the way to the

establishment of administrative courts elsewhere in the Church. The Con-

stitution enlarged the competency of the Apostolic Signatura to include

review of contentions arising from the exercise of administrative ecclesias-

tical authority by one or another of the departments of the Roman Curia.

25. Luke 6:27-31.

26. Mt. 5:3.

27. Mt. 5:9.

28. Mt. 6:12.

29. 1 Cor. 6:1-6.

30. 1 Cor. 6:7-8.

31. C.I.C., c. 1925.

32. C.I.C., c. 1929.

33. For an excellent treatment of the need to structure administrative discre-

tion, as applied to American civil law, see Davis, Discretionary Justice

(L.S.U. Press, 1969).

38



B. Remarks of Father Robert

Kennedy to the General Membership

of the NGGB

Below is the formal text submitted by Father Robert

Kennedy subsequent to the November, 1969, meeting of

the National Conference of Catholic Bishops. The text

corresponds substantially to his remarks made to the

bishops at that time.

Few issues in the Church of our day have become immersed in

emotion and confusion to the extent of the issue of “due process.”

It is necessary to defuse it of the emotion and extricate it from the

confusion if it is to be truly understood and appreciated.

The expression “due process” is borrowed from Anglo-American

jurisprudence, where the full expression is “due process of law.” It

is a technical expression, not easily definable, analogously applica-

ble to a great number of differing situations. It has to do with rights,

with the protection of rights, but more particularly with insuring the

availability of structures to protect rights should they be threatened,

and to vindicate rights when in fact they have been impaired.

“Due process of law” is not limited to criminal court proceedings,

though much of what one hears and reads today about due process

in the Church could incline one to believe that it is so limited; so

much is said about the rights of an accused, the right to a speedy

and public trial, and the right to trial by jury. Such rights form one

aspect of due process, but they do not exhaust its content. Nor is

“due process” limited to court procedures considered generally, as

encompassing both criminal and non-criminal matters. Again, much

of what is said and much of what is written these days would incline

one to think that due process concerns only “courtroom rights” such

as the right to cross-examine witnesses, the right to counsel, the

right of appeal. Such rights do form one aspect of due process, but

the notion is not confined to them.

This is why concern for due process in the Church is not solely,

nor even principally, concern for the revision of the Church’s ju-

39



dicial procedures as set forth in the Code of Canon Law. The fact

is that the 1918 Code does contain a good deal of what is entailed

in Anglo-American due process as applied to judicial procedures.

It does not contain it all, but it does contain a good deal of it. It

could and perhaps should be part of the revision of the Code of

Canon Law to have it reflect to a greater extent the values of the

governmental experience of English-speaking nations as regards

court procedures.

That, however, is not our concern; it is not the urgent need to

which we were asked to respond. Due process applies also to ad-

ministrative activities of government, and, to a lesser extent, even

to legislative activities. It is in the area of administrative action

that we believe the need for due process is most urgent in the

Church. An immense amount of the governmental activity of our

Church is administrative, and it is, to a large extent, unstructured.

Moreover, there are scant and inadequate procedures available for

the resolution of disputes that arise out of the exercise of administra-

tive authority in the Church. So it is to this area that our concern

for due process is primarily directed.

Moreover, the Anglo-American notion of due process is not even

confined to procedures. In addition to procedural due process,

Anglo-American jurisprudence knows what it calls “substantive”

due process. This is simply a principle of justice according to which

no one is to be deprived of the exercise of any right without ade-

quate justification, without sufficient reason. Notwithstanding per-

fectly adequate procedures, it is still possible that reasons offered

in support of a given decision might be found to be insufficient to

support the decision. In such a case, the decision would be set aside

as violative of substantive due process. Such a notion is confusing

for us clerics because the word “process” to canonically trained

clerics necessarily connotes just “procedures.” The fourth book of

the Code, dealing exclusively with procedures, is entitled De Proces-

sibus. But in American jurisprudence the expression “due process”

applies not only to procedural fairness but also to this substantive

notion that there is to be no infringement of a right without ade-

quate justification and without grave reason.

Now, both procedural and substantive due process in the Amer-

ican experience are ordained to the protection of the dignity of the

human person, the freedom of the human person and the basic rights

40



of the human person. These are values which we understand the

Second Vatican Council to have emphasized as distinctively Chris-

tian and belonging to the core of the Gospel message. That is why

we see the origin of the due process issue in the ecclesiology of the

Second Vatican Council, and not in any particular conflict or dis-

pute which has grown up in the life of the Church during the past

couple of years.

The problem we face in regard to human rights and freedom in

the Church is not so much injustice as it is supposed injustice.

What we are seeking in introducing notions of due process into the

administrative life of the Church is not protection of the people from

the human weaknesses of bishops or diocesan administrators or

pastors; what we seek is protection for all of us from the effects of

that human weakness which inclines us to be suspicious of the un-

known. When one does not know that a particular decision was

made fairly, when there is no guarantee that it will be made fairly,

human beings are exposed to rather widespread suspicion of arbi-

trary action. I think that bishops suffer immensely from the effects

of this common weakness in the people they serve; you are very

often accused unjustly of being arbitrary and unfair, simply for the

want of structures and procedures of which people are aware and

from which they derive assurance of the fairness of your actions.

In looking to Anglo-American jurisprudence for this notion of

adequate protection of rights, it is true that we are looking to secular

society and to secular law, but the Church has always done so for

governmental structures and forms. Revelation contains no specific

directions as to forms of governmental activity or structures for the

protection of rights. The 1918 Code of Canon Law is borrowed in

large measure from secular Roman law, with intermingled elements

from secular Germanic law. Moreover, for the Church to borrow

some structures and procedures from Anglo-American experience

would be nothing more than reclaiming Christian capital which we

invested a long time ago. The dignity of the individual, his rights

and freedoms and their recognition and protection have always been

part of the Christian message and came to a particular flowering in

Christian England several centuries ago. In post-Reformation times

those values tended to get lost in the Church which, for historical

reasons, found it necessary to emphasize the rights of authority

rather than the rights of the individual person, but they continued

to flourish in the civil society of England and were brought to this

41



country. They stemmed from Christian England’s understanding of

the core of the Gospel message regarding the dignity of the individ-

ual. So in borrowing them from Anglo-American civil jurisprudence

we do little more than reclaim for the governmental life of the

Church the fruits of the Christianization of English society. In yet

another sense, I would agree with those who object that the Church

should not follow secular society; I don’t think we should follow

secular society; I think we should lead it in this area of protection

of rights which is so distinctly Christian.

What we have tried to do in submitting the results of our study to

the Bishops’ Committee on Canonical Affairs is to suggest a three-

fold structure for the resolution of disputes which arise in the

Church.

The first aspect of the threefold structure is conciliation. It is

the heart of conciliation that two disputants agree to engage the

services of a third person or persons who will seek to bring them to

agreement. The conciliator or mediator makes no decision. He

simply offers his services in an attempt to bring the disputing

parties to agreement. We believe this to be the most distinctly

Christian aspect of the proposed structure. Christian notions of

forgiveness, peace-making and fraternal charity argue that the

primary process for resolving disputes in the Church should involve

a conciliation of human persons rather than the assertion of legal

rights.

The second aspect of the proposed structure for resolving disputes

is arbitration. Arbitration differs from conciliation, as you know, in

that it entails decision-making by the intervening third party or

parties. The disputants agree to submit their dispute for decision by

an arbitrator or arbitrators and to be bound by the decision so made.

Specific suggestions for setting up a Process of Conciliation and

an Arbitration Process in a particular diocese are offered in Ap-

pendices A and B of the report. None of these specific provisions are

incontestable; some of them do not even represent the unanimous

opinion of those of us who studied them and now propose them.

They are offered to you as models which must be tailored to your

own diocesan circumstances and to which must be added your

wisdom, your learning and your experience. It is our understanding

that we were asked to submit something concrete, something spe-

42



cific; that is why we went into such detail. We have not presumed

to offer you the only way, but simply to suggest a way in which to

begin.

The third aspect of the proposed structure for resolving disputes

in the Church is a suggestion that a judicial process be used on rare

occasions. The reason for this suggestion is that both conciliation

and arbitration offer ad hoc solutions to disputes. It does seem

that in our evolving Church increasingly precise meaning must be

given, authoritatively, to just what a Christian’s rights are in given

situations. Some sort of body of precedents should gradually emerge

so that your declarations at the Second Vatican Council regarding

the human and ecclesiastical rights of persons in the Church can

be more specifically delineated through experience as time goes on.

Such gradual delineation of the content of Christian rights can best

be achieved, we believe, through careful adjudication of disputes

involving conflicting assertions of rights.

The availability of a judicial process would also seem advisable

for the resolution of disputes in the Church where one or the other

party is unwilling to conciliate or submit to arbitration.

No one of these suggested procedures—conciliation, arbitration
or adjudication—represents a radical departure from what is
already to be found in Canon Law. Canons 1925 to 1928, for exam-

ple, express the wish that, in order to avoid litigation in the Church,

parties would engage the services of someone who could bring

them to an out-of-court settlement. The canons declare the right of

an ecclesiastical judge to suggest at any stage of the proceedings that

the parties settle their dispute outside of the judicial environment.

This, in effect, is conciliation. Similarly, regarding arbitration,

canons 1929 to 1932 of the present Code again express the wish that

litigation be avoided wherever possible and, to that end, suggest

that parties submit disputes to the judgment of an independent per-

son or persons called “arbitri” or “arbitrators.” Canon 1667 asserts

the fundamental canonical principle that every right can be enforced

in court; thereby affording the basis for the suggestion that judicial

processes be made available for the resolution of disputes involving

conflicting claims of rights by persons in the Church. Heretofore,

ecclesiastical courts only rarely have been so used; being bogged

down with the intricacies of marriage cases has, in fact, prevented

their being so used.

43



There is one significant departure that the proposals of our Report

do make from the Code provisions for dispute-solving procedures.

We suggest that conciliation, arbitration and adjudication be appli-

cable to disputes arising out of the exercise of administrative author-

ity on all levels in the Church. The Code itself does not extend its

provisions to such disputes. According to the Code, disputes arising

out of administrative action are resolved administratively. Recourse

for one aggrieved by administrative action is by way of appeal to

the next highest echelon of administrative authority. The experi-

ence of the last fifty years has taught us that the largest area of

conflict in the Church arises out of the exercise of administrative

authority and that merely administrative avenues of recourse for

the resolution of such disputes are not effective. We suggest, there-

fore, experimentation with para-canonical processes such as are

outlined in the Report.

Thus far we have spoken of proposed structures for the resolution

of disputes which arise in the Church, with particular emphasis on

those which arise from the exercise of administrative authority. I

would now direct your attention to the last part of the Report,

entitled “Structuring Administrative Discretion.” While the resolu-

tion of disputes is an area of great concern in the Church today, an

area which must be of even greater concern is the creation of an

atmosphere of Christian living in which disputes are less likely to

arise.

We have already indicated our belief that it is in the field of ad-

ministrative action that conflict is most often spawned today. This

is due, we believe, to the immense amount of unstructured and un-

controlled discretionary power exercised by administrative author-

ities. Where the exercise of discretion is unlimited and unchecked,

there exist manifold opportunities for widespread supposition on the

part of those adversely affected by administrative decisions that the

actions were arbitrary and unjust. The greatest promise for mini-

mizing conflicts in the Church and for easing tension lies in eliminat-

ing unnecessary discretionary power where it exists and in limiting

and controlling necessary discretionary power which must exist in

any kind of governmental system. Consequently, there are sug-

gested in Appendix C of the Report four areas in which we think

steps could and should be taken to eliminate conflicts and disputes.

The first concerns the competence of administrative authorities

or bodies. Whenever an administrative authority is established in

44



the Church, it is essential to the peace of the Church that the pre-

cise competence of the particular body or the particular administra-

tor be clearly delineated. One of the great causes of unrest and frus-

tration in the Church is lack of knowledge as to who made a

particular decision. This spawns many charges of arbitrariness. Not

only is it difficult, and at times impossible, to pin down who made a

particular decision, but competence of administrative bodies often is

seen to overlap without any clear delineation.

Secondly, once the competence of an administrative body or an

administrator has been defined, we urge that these bodies or admin-

istrators make policies and state them. It is crucial to the minimiz-

ing of disputes that there be made known what standards and what

criteria will be used by particular administrators or administrative

bodies in reaching decisions in individual cases. Thus, for example,

a school board should make known what its standards will be for

hiring and firing teachers; a personnel board should make known

what the criteria will be according to which it will recommend men

for pastorates; a building commission should make known what its

standards will be for authorizing construction or demolition; a

pastor should make known what the criteria will be according to

which he will admit or not admit students to the school in his parish.

The great value of announcing policies is that it lessens tension and

it forestalls a great deal of the feeling of arbitrariness in decisions

subsequently made in individual cases. It gives people an assurance

of consistency. We would move away from ad hoc determina-

tions of policy in each individual case to a system which would give

greater assurance to people that like cases will be treated in like

manner.

Moreover, pre-announced policies make it possible for people to

adjust the circumstances of their lives so as to obtain favorable ad-

ministrative decisions. Where the policies and the standards which

are going to be used have not been announced beforehand, it is very

difficult, if not impossible, for people to know exactly what it is they

are supposed to do and, consequently, there is great opportunity for

them to assume that the decision in a particular case will be arbi-

trary and without rational basis.

There is yet another value in making policies and stating them.

It permits intelligent review of a particular administrative action.

When someone claims to have been treated arbitrarily or unjustly

and there are no pre-announced standards according to which he

45



was supposed to have been treated, he has a free field to claim that

he was treated arbitrarily and no one can point to pre-announced

policy and say, “You have been done no injustice. These policies

were announced beforehand and everything was done in accord with

them; you simply do not measure up to this or that criteria.” The

formulation and publication of policy can do much to save authority

from many charges of arbitrariness.

It is also suggested in the Report that the making of policy, so

far as is possible, should be open. That is, an administrative body

or individual administrator should announce a proposed policy as

“proposed” and invite interested parties to direct their thoughts,

objections or criticisms to it. This would serve to assure people that

the administrator or administrative body is trying to utilize a wide

range of ideas. It also would insure greater acceptability of policies

by people who would realize that they did have the opportunity to

contribute to the formulation of the policy. Few things, I think,

spawn unrest and cater to the human fear of the unknown as much

as administrative decisions secretly made, isolated from criticism,

unsupported by findings of fact, unexplained by reasoned opinions

and free from any requirement that they be related to past prece-

dents.

Thirdly, once the competence of administrative authority is

clearly delineated and policy openly has been made and stated, it

is important to the elimination of disputes that administrative de-

cisions made in individual cases be accompanied by clearly stated

findings of fact and supporting reasons.

Fourthly and lastly, the administrative procedure itself which

leads to administrative decisions on all levels in a diocese should be

fair and should be seen to be fair. Here again, the problem is not

that bishops or administrative agencies or pastors make a practice

of dealing unfairly. The problem is that, for want of established

structures and procedures, it is not known that people have been

dealt with fairly, simply because people do not know what steps

have preceded the administrative decision itself. The People of God

need to know that a bishop or a pastor or other diocesan authority

hears before he acts, that there has been a fair hearing, a process

due the dignity of Christain persons, and that whatever action is

taken is consequent upon such a process. Unquestionably, in the

vast majority of cases, the bishop or other administrative authority

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does investigate thoroughly, does give manifold and fair hearings,

and does reach decisions affecting individual persons impartially.

But that is not the point. The people have no knowledge that such

was done, they observe no procedural guarantee that such will be

done, and they are aware of no procedural reminder for administra-

tors that such must be done.

Thus, whenever administrative action is to affect a person ad-

versely, we believe he should be notified of the action before it takes

place. This will do much to defuse not only his feelings of being

dealt with unjustly but, more importantly, the feelings of others

who will learn of the action and might think that there was no

preceding confrontation of the person with the proposed action and

with the opportunity to be heard. Moreover, where information is

to be used in reaching an administrative decision, we urge that the

information be made known to the parties concerned. There will be

times when exceptions will have to be made to such a rule of pro-

cedure; but we urge that exceptions in the interest of confidentiality

and privacy be made only where it is in the interest of the com-

munity and not simply in the interest of an individual who does not

wish to be embarrassed by the communication.

There are other aspects of the Report on due process about which

I would like to speak but the time allotted to me has just about

expired. What is offered in this study is in response to what we

understood to be your request for something specific, something

concrete. It is offered as a beginning, not as the last word. Several

dioceses have been working on approaches to due process and have

developed plans of various sorts; we have learned from them and are

indebted to them. What we offer is, we believe, a more comprehen-

sive and more detailed study on this subject than is available at

present. We also believe that this study will quickly be surpassed

by the application to it of your own learning, your experience and

that of those who work with you in your respective dioceses. It is

offered to you as something with which to start, not something on

which to rest.

We have been moved by a sense of urgency to offer a report to

you on due process because we do not want the issue of due process

to become the property of radicals, rabble rousers and wild men in

the Church, who attack authority on every front and seem to be

seeking to shake the structures of the Church. It is not their cause

;

47



it is yours
;
it is ours. It belongs to all the members of the Church. I

would not like to see it become theirs by default. I think due process

is your issue more than anyone else’s. Filling the structural and pro-

cedural gap in the Church’s concern for the rights of all Christians,

especially in the area of administrative activity, is an opportunity

for you to demonstrate the great concern for justice and fundamental

fairness that rests in every one of you. Once structures and proce-

dures are established, both to minimize suspected injustice and to

afford peaceful, orderly means for the resolution of disputes, the

rabble rousers of our day quickly will be defused. Publicity will

not gather around them because people will realize there are per-

fectly adequate structures for the airing of grievances; those who

claim grievances but who will not resort to adequate procedures for

their resolution will not rally the emotional support of the public.

Much of the criticism leveled at positions of authority in the Church

will be effectively dissipated. Consequently, the effectiveness of

your own authority will be enhanced.

That we offer something new necessarily implies, I suppose, a

certain amount of criticism on our part of what has been and what

is now. I hope, however, that you will not misunderstand such

criticism as bespeaking a lack of reverence or a lack of love on the

part of those of us who offer it. The Roman Catholic Church is

that to which our lives are dedicated. We believe that one may

criticize what one reveres, and that the greater the love, the greater

the freedom to criticize. We believe it would be less than devotion

if, perceiving what we think to be the ideal of the Church’s future,

we hesitated to point it out or press toward it with all our hearts.

Mr. Justice Holmes once said: “We must sail, sometimes with the

wind, sometimes against the wind, but we must sail and not drift or

lie still at anchor.” We think that future learning in this area of

affording protection for rights in the Church should come from ex-

perience, from experimentation. Consequently, we offer you a small

craft in which to set out and the bare beginnings of a course on

which to sail. The craft will have to be made stronger and the

course will have to be altered many times. But we offer you a

beginning. Whether you judge it opportune to set sail now or not,

we assure you of our continuing devotion and our continuing efforts

to serve you in any way we can.

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