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ARCHDIOCESE OF MIAMI |
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Metropolitan
Tribunal |
DUE PROCESS PROCEDURES FOR THE ARCHDIOCESE OF MIAMI
INTRODUCTION
"If your brother should commit some wrong against you,
go and point out his fault, but keep it between the two of you.
If he listens to you, you have won your brother over.
If he does not listen, summon another so that every case may stand on the
word of two or three witnesses. If
he ignores them, refer it to the Church."
(Cf. MT. 18: 15-17).
Followers of Jesus Christ must strive to imitate His
self-giving and reconciling love in every area of their lives.
Relationships should be marked by a special concern for the dignity of
the other person who is loved by God. A
central teaching of our faith is that there is to be among Christians a primacy
of love. Yet the imperfect
condition and sinfulness of a pilgrim people has resulted in misunderstanding,
honest differences, conflicts and even hostility within the Body of Christ.
Our Lord recognized that there would be occasions when his disciples
would fail to love one another as He loves them and issued the classic
reconciliation procedure for the believer.
(Archdiocese of Miami First Synod #741).
The Archdiocese of Miami is concerned about the just
treatment of people. Intrinsic to
the Church's mission in South Florida, as a true witness of the gospel, is the
protection of each person's rights and freedom, for the possible infringement of
rights, real or supposed, in the exercise of administrative authority is harmful
not only to the individual, but also to the mission of the Church.
(ADOM Synod #744).
Rights without safeguards are meaningless.
One long-established procedure in Church law as well as in civil law for
the protection of a person's specific rights is known as "Due
Process." The communion of
Christians with one another within the Church involves relationships, which
follow upon our incorporation into Christ.
Consequently, although conflicts that may arise may be quite similar to
those within a civil society, the manner of solving them ought to be different
from the ways used in the secular world. (ADOM
Synod #745).
"The Archdiocese acknowledges that in these dynamic and
troubled times, pastoral responsibility demands that wrongs be addressed
effectively and expeditiously, so that the Church's mission as a reconciler,
guardian of truth, herald of justice and peace might be readily apparent to
all." (ADOM Synod #746).
"Within the Church, "due process" recognizes
both the fullness of authority vested in the Diocesan Bishop by divine
institution and the divinely instituted rights of individual members of the
Church by reason of their baptism and from their nature and dignity as persons
created in the image and likeness of God. Since
"due process" is concerned with the resolution of conflicts involving
the exercise of administrative authority in the Church, it enables those with
this authority to govern more effectively by freeing them from unjust
accusations of being arbitrary or unfair."
(ADOM Synod #760).
"By its nature, the notion of "due process" is
analogous and not unequivocal. It
is more a principle of justice than a specific rule of law.
(ADOM Synod #762)
"Faithful to the Gospel she is called to proclaim, the
Archdiocese of Miami is committed to those methods that serve justice and
strengthen the sense of the Christian community. Therefore, the "due process" system within the
scope of its limitations is available to all people, be they priests, deacons,
laity or religious who are part of and/or work for the Archdiocese without
exception and without fear of reprisal."
(ADOM Synod #763)
The due process procedures for the Archdiocese of Miami, in
keeping with Our Lord's admonition, found in the 18th Chapter of St.
Matthew is divided into two separate procedures; namely, the Conciliation
Procedure and the Administrative Tribunal.
The first, the Conciliation Procedure is a process in which the parties
themselves, through the assistance of a mediator (conciliator), seek to resolve
the dispute themselves. The second,
the Administrative Tribunal procedure involves the injured party freely
submitting the dispute to a third party, the Administrative Tribunal, for
settlement of the matter.
CONCILIATION
ARTICLE I: THE CONCILIATION PROCEDURE
SECTION1 – INITIATING THE CONCILIATION PROCEDURE
1.
Before having recourse, the person must seek in writing from its author
the revocation or amendment of the decree under contention.
A. The petition must be made
within the peremptory time limit of ten (10) canonical days from the time the
decree was lawfully notified.
B.
Once this petition has been lodged, it is by that very fact understood
that the suspension of the execution of the decree is also being sought.
2.
If, within thirty (30) days from the time the petition mentioned in no. 1
reaches the author of the decree, the latter communicates a new decree by which
either the earlier decree is amended or it is determined that the request for
revocation or amendment is to be rejected, the period within which to have
recourse begins from the notification of the new decree.
If, however, the author of the decree makes no decision within thirty
days, the time limit begins to run from the thirtieth day.
3.
The petition for conciliation must be made within the peremptory time
limit of fourteen calendar (14) days from the beginning of the time period
mentioned in no. 2.
4.
Conciliation procedures will be formally initiated at the time that the
written petition has been received by the conciliation clerk.
5.
Upon initiation of the conciliation procedure, the parties are required
to sign and be bound by the “Archdiocese of Miami Conciliation Agreement.”
SECTION 2 – Non-allowable disputes
1.
Canonical criminal cases
in the strict sense (not administrative sanctions and disciplinary actions)
2.
Non-criminal matters where
there is a question of validity of marriage or holy orders
3.
Ecclesiastical matters
that are specifically reserved by canon law to other processes within the
structure of the Church (e.g., transfer and removal of pastors [cc. 1740-1752])
4.
Disputes involving
religious in their strictly internal affairs
5.
Spiritual matters whenever
a claim is made that requires payment
SECTION 3 – Conciliation Clerk
It is for the diocesan Bishop to appoint a conciliation clerk, whose duty
shall be to process any petition in accordance with the procedures that follow.
The term of office of the conciliation clerk shall be three (3) years.
SECTION 4 – Role of the Conciliation Clerk
1. The conciliation clerk will receive the written grievance containing
within it a signed affirmation that an effort has been made to reach a
settlement prior to filing. The
conciliation clerk will ascertain with the petitioner that the wording of the
petition is stated with precision and truly expresses the position of the
petitioner. The petitioner is
responsible for the formulation of any dispute and may obtain assistance from
any source in stating the dispute with clarity and precision.
In stating the dispute two requirements should be kept in mind: (1) a
statement of the dispute concretely and specifically, with names, dates, place,
occasion, etc; and (2) some authoritative statement of policy, law or principle
may be cite, if applicable. The
conciliation clerk will determine whether or not the petition falls within the
scope of allowable disputes within three (3) days of receiving the final
version.
2. Should the conciliation clerk find the petition allowable under these
procedures, the conciliation clerk will transmit a copy to the respondent within
twenty-four (24) hours, who is to respond in writing within ten (10) days.
3. Should the conciliation clerk find the petition not allowable under these
procedures, the conciliation clerk will refer the petition within twenty-four
(24) hours to the conciliation panel who have five (5) days in which to confirm
or overrule the conciliation clerk. The conciliation clerk will notify the petitioner of the
final determination.
4. If the petitioner does not accept a judgement that the dispute is not
allowable, the petitioner may have recourse to the diocesan Bishop.
SECTION 5 – The Conciliation Panel
1. A conciliation panel is the body that shall oversee the conciliation
procedure.
2. The conciliation panel shall consist of the Judicial Vicar, the Adjutant
Judicial Vicar, and three (3) members representative of the laity, religious,
and clergy of the archdiocese, who shall be recommended by the Archdiocesan
Committee on Peace and Justice and appointed by the diocesan Bishop for terms of
three (3) years.
3. The panel will meet at regular intervals and at least semiannually.
4. The conciliation panel shall be responsible for:
A. Maintaining an
active and adequate list of suggested conciliators.
B. Reviewing each
petition that the conciliation clerk has determined should be dismissed as an
unallowable dispute.
ARTICLE II: CONCILIATION
SECTION 1 – Role of the Conciliation Clerk
During the conciliation process, the conciliation clerk is to act as a
person processing a petition and a response and shall not make any judgment with
respect to the merits of the dispute, except to determine initially whether the
dispute is allowable within the Conciliation Procedures.
SECTION 2 – Representation
A party may seek representation during the conciliation process.
SECTION 3 – Selection of the Conciliator
Within five (5) days after the receipt of the response, the conciliation
clerk shall assist the petitioner and the respondent in selecting a conciliator
who in the opinion of the petitioner and the respondent is a competent person
who, would be informed of the facts involved in the petition, sensitive to the
feelings of the parties, and would be capable of bringing both parties together
in a face to face dialogue.
SECTION 4 – Role of the Conciliator
1.
The conciliator selected should have as a primary concern the
reconciliation of the parties. As
much as possible, the conciliator will try to motivate and assist the parties in
settling the dispute, discretely suggesting possible areas of compromise or
other suitable solutions.
2.
Within five (5) days from the date that the conciliator is chosen, the
conciliator shall schedule a meeting with the parties in an effort to resolve
the dispute. The conciliator shall
make every effort to conciliate the dispute within twenty (20) working days [and
not beyond thirty (30) days] after the conciliator’s first meeting with the
parties. In the event that
resolution of the dispute is for any reason not possible within such a time
period, the conciliator may take additional time to bring about a resolution,
but such a conciliation effort should not extend beyond forty-five (45) days
from the date of the conciliator’s first meeting with the parties, except by
the written consent of all interested parties.
SECTION 5 – Resolution of the Dispute
1.
When there has been a resolution of the dispute, the conciliator shall
make a written report to the conciliation clerk concerning the nature of the
resolution.
2.
In the event that a resolution of the dispute is not possible, the
conciliator shall make a written report describing the reasons that a resolution
was not possible. The parties may
mutually agree to further conciliation.
ARTICLE III: COSTS OF CONCILIATION PROCEDURE
Operational costs for the archdiocesan office of conciliation should be part
of the archdiocesan budget. All
other costs of the conciliation procedures should be borne equally by the
parties involved unless they agree otherwise or unless the conciliator assesses
such expenses or any part thereof against a specified party or parties.
ARTICLE IV: CONCILIATION PROCEDURE AND CIVIL LITIGATION
1.
At any time during the conciliation procedure, introduction of an issue
into civil court by the petitioner or respondent will require a judgment by the
conciliator as to whether the procedure will continue or be terminated.
2.
If there is civil litigation pending involving the same issue, the
conciliation panel will determine whether or not to accept the petitioner into
the conciliation procedure.
ARTICLE V: CONFIDENTIALITY
In order to enter into conciliation, the parties are required to sign and be
bound by the “Archdiocese of Miami Conciliation Confidentiality Agreement.”
CONCILIATION AGREEMENT see addendum
CONFIDENTIALITY AGREEMENT see addendum
ADMINISTRATIVE TRIBUNAL
Article I: Procedure in the Administrative
Tribunal
Section 1 – Unless otherwise provided in these norms, procedure in the
administrative tribunal shall be governed, mutatis mutandis, by cannons
1656-1670 of the Code of Canon Law, the Oral Contentious Process.
Section 2 – Pertinent provisions of the canons concerning the appointment
of judges (cc. 1419-1427), the ordinary contentious process (cc 1501-1655),
discipline to be observed in tribunals (cc. 1446-1475), parties in a case (cc.
1476-1490), and actions and exceptions (cc. 1491-1500) shall also be applicable,
mutatis mutandis, to proceedings in the administrative tribunal.
Section 3 – In order to expedite matters, but with due regard for the
demons of justice, the administrative tribunal may deviate from procedural
norms, which do not affect validity.
Article II: Access to the Diocesan Administrative Tribunal
Section 1 – Any person or group in conflict with a parochial or
archdiocesan administrator or administrative body, other than the diocesan
Bishop, may petition the archdiocesan administrative tribunal to resolve the
dispute.
Section 2 – No petition shall be accepted by the archdiocesan
administrative tribunal unless it appears from the petition that:
a.
The dispute involves a claim of injustice, that is, a claim that some
action or inaction of a parochial or archdiocesan administrator or
administrative body has violated or threatens to violate a right recognized in
the law of the Church or in the documents of the magisterium;
b.
Following the principle of hierarchical recourse, a request for
revocation or modification of the administrative action in question was
presented to the parochial or archdiocesan administrator (or administrative
body) within ten (10) days of the action and denied;
c.
Good faith efforts to resolve the dispute through mediation or
conciliation have not been successful; such efforts shall include the use of the
conciliation procedure of the Archdiocese.
d.
The petitioner agrees to be bound, through the execution of a binding
arbitration agreement valid under the laws of the State of Florida, by the
sentence of the administrative tribunal.
Section 3 – The petition shall briefly set forth the names of all parties
to the dispute, the basic facts, the issue or issues involved in the dispute,
and a precise statement of the right or rights alleged to have been violated or
threatened with violations.
Section 4 – The petition shall be accompanied by a copy of the written
request for revocation or modification, referred to in Section 2b above, with an
indication of the response to such request, and by an appropriate document from
the conciliation clerk attesting to the failure of efforts to resolve the
dispute by conciliation.
Article III: Suspension Pending Resolution of Dispute
Section 1 – A petition for resolution of a dispute by the archdiocesan
administrative tribunal shall be understood as also petitioning for the
suspension of the administrative action, which has occasioned the dispute.
Section 2 – In those matters in which hierarchical recourse automatically
suspends the execution of an administrative decree, the same effect shall ensue
upon the filing of a petition before the archdiocesan administrative tribunal.
Section 3 – In other cases, the archdiocesan administrative tribunal shall
determine within five (5) days whether or not to suspend, for grave reason, the
execution of the administrative decree or other administrative action pending
resolution of the dispute by the administrative tribunal.
Article IV: Relationship Between Recourse to Archdiocesan Administrative
Tribunal and Hierarchical Recourse
Section 1 – When hierarchical recourse has been taken from an
administrative action or inaction to the diocesan Bishop, the diocesan Bishop
may, at his discretion, remit the matter for resolution to the archdiocesan
administrative tribunal.
Section 2 – If the same dispute should be brought to the archdiocesan
administrative tribunal by one disputant, and to the diocesan Bishop by another
disputant, the diocesan Bishop shall be understood to be competent to resolve
the dispute; the diocesan Bishop may, of course, remit the matter to the
archdiocesan administrative tribunal, in accord with Section 1 above.
Section 3 – At any stage of the proceeding before the archdiocesan
administrative tribunal, prior to the definitive sentence, the presiding judge
may, with the written consent of all parties, transfer the matter to the
diocesan Bishop for resolution in accord with the norms for hierarchical
recourse.
Article V: Peremptory Time Periods
Recourse to the archdiocesan administrative tribunal must be taken within a
peremptory period of thirty (30) days from the day on which the attempt at
conciliation has been formally abandoned.
Article VI: Acceptance of the Case
Section 1 – Within fourteen (14) days after receiving a petition the
judicial vicar shall determine whether there exists a sufficient basis to accept
the case. A case may be accepted
if:
a. Proper subject matter
jurisdiction is alleged. Namely,
that the administrative tribunal is competent to hear a controversy of the type
alleged.
b.
Proper personal jurisdiction is alleged.
Namely, that all parties to a case are under the authority of the
diocesan Bishop, or that they have agreed to be bound by decisions of the
tribunal.
c.
Taking the facts alleged in the light most favorable to the petitioner,
there is a reasonable possibility that the petitioner would be able to prove his
or her case at a hearing.
Section 2 – If a case is accepted the judicial vicar shall assign a judge
or panel of judges and notify the parties of the acceptance.
Section 3 – The coordinator shall then forward to all parties to the
dispute a list of approved advocated that they might choose to represent them
before the administrative tribunal.
Section 4 – The respondent, in conjunction with his or her advocate, must
submit a formal response to the libellus within fifteen (15) days of reception
of the citation.
Section 5 – Once the libellus and response have been received the judge or
presiding judge is to “formulate the doubt,” and set forth the issue or
issues to be decided at a hearing. The
judge or presiding judge shall then set a hearing date, to be held within thirty
(30) days.
Article VII: Personnel
Section 1 – Judicial Vicar and Adjutant Judicial Vicar
a.
The judicial vicar of the metropolitan tribunal will also be the judicial
vicar of the archdiocesan administrative tribunal.
The judicial vicar will oversee the administrative tribunal, assign
judges to cases, and report to the Archbishop when appropriate.
b.
The adjutant judicial vicar of the metropolitan tribunal will also be the
adjutant judicial vicar of the administrative tribunal.
He will assist the judicial vicar in overseeing the administrative
tribunal and will replace the judicial vicar when he is unavailable.
Section 2 – Coordinator of the Administrative Tribunal
The judicial vicar shall appoint a coordinator of the administrative
tribunal. The duties of the
coordinator are to:
1.
Function as an intake clerk, receiving grievances from parties.
2.
Investigate allegations, screen cases, and present facts to the judicial
vicar with a recommendation whether or not this tribunal is competent to
adjudicate a case.
3.
Correspond with the parties throughout the process providing information
and guidance.
4.
Meet with the parties when appropriate and provide counsel in term of
their canonical rights and duties.
5.
Prepare an annual budget for the costs of the administrative tribunal.
6.
Record all expenditures associated with the administrative tribunal and
when appropriate bill parties for costs associated with their case.
7.
When a case is completed, organize all material and archive appropriate
documents.
Section 3 – Promoter of Justice
a.
The diocesan Bishop shall appoint a promoter of justice for all cases in
the administrative tribunal.
b.
The promoter of justice is bound by office to safeguard the public good.
The promoter of justice is not in the service of either party to the
dispute.
c.
The promoter of justice is to be cited in every case before the
administrative tribunal.
d.
If the promoter of justice is not cited in a case, the acts are valid if
the promoter of justice is in fact present or, prior to the sentence, is
afforded opportunity to inspect the acts of the case and to intervene.
Section 4 – Advocates
a.
The judicial vicar shall maintain a list of approved advocates.
This list will be made available to all parties in a case.
b.
The petitioner or respondent may select an advocate who is not on the
list of approved advocates. Before
functioning as an advocate in the administrative tribunal, this advocate must
have the permission of the judicial vicar.
c.
Advocates must have at least attained the age of majority, be of good
reputation and knowledgeable in the rights and obligations of the Christian
faithful.
d.
The role of the advocate is to assist the party whom they represent in
the presentation and argumentation of the case before the court.
Section 5 – Auditors
a.
The judicial vicar shall appoint auditors.
b.
The tasks of the auditor will be to collect the proofs according to the
mandate of the court and to authenticate documents.
Article VIII: The Hearing
Section 1 – Once a written response to the libellus has been received; the
judge in consultation with the judicial vicar shall set a date for the hearing
in a case.
Section 2 – Each of the parties and their advocates shall be present at
the hearing.
Section 3 – Each party, by their advocate, shall be allowed a short
opening statement.
Section 4 - The petitioner shall present his or her proofs, both as
witnesses and as written documents, or in any other acceptable form.
Section 5 – The respondent shall then present his or her proofs.
Section 6 – Each witness shall be sworn in by the presiding judge before
testifying. Such swearing in may
take place immediately before testimony is given, or may be given to all the
witnesses at once.
Section 7 – The presiding judge shall question the witnesses.
The parties and the promoter of justice may suggest questions and areas
of inquiry to the judge.
Section 8 – After all the witnesses have been called and all the documents
received into evidence, each party’s advocate shall give a short closing
statement, summarizing their arguments.
Section 9 – The presiding judge will either announce the decision of the
court at the same hearing or will inform the parties that a written sentence
will be forthcoming.
Section 10 – If justice demands it, the presiding judge may seal the acts
of the case and/or order all parties not to reveal the testimony that was
received, outside the hearing.
Article IX: The Sentence
Section 1 – The archdiocesan administrative tribunal may rescind or
declare null, in whole or in part, an administrative action which it judges with
moral certitude to have violated or to threaten with violation, a substantive or
procedural right of the petitioner recognized as such in the law of the church
or in the documents of the magisterium; the archdiocesan administrative tribunal
may not, however, amend or otherwise alter the administrative action.
Section 2 – Alternately, upon a finding that such right was violated, the
tribunal may order a specific sum of money to be paid to the petitioner, by the
respondent, as compensation for the violation of their rights.
Section 3 – In the absence of moral certitude that a recognized right of
the petitioner has been violated or threatened with violation, the judge shall
pronounce that the claim of the petitioner has not been established, shall
dismiss the respondent as absolved, and shall revoke any suspension of the
administrative action in question that may have been imposed.
Section 4 – Appeal of a sentence of the archdiocesan administrative
tribunal is to the person of the diocesan Bishop.
Article X: Expenses
It shall be the policy of the tribunal that economic means shall not dictate
access to Justice. The following
policies have been established to make the tribunal accessible to all aggrieved
parties regardless of economic resources:
1.
Operational costs for the archdiocesan administrative tribunal shall be
part of the archdiocesan budget.
2.
The expenses of witnesses and the costs of producing proofs shall be paid
by the respective parties producing witnesses or proofs, unless the parties
agree otherwise of the judicial vicar determines otherwise according to the
circumstances of the particular case.
3.
All other costs shall be borne equally by the parties unless they agree
otherwise or unless the judicial vicar determines otherwise according to the
circumstances of a particular case.
4.
Because services received at no cost often are perceived to have no
value, all parties should pay something toward their representation.
This minimum shall be $20.00 toward the advocate’s fee.
This may not be waived, except under extreme and unusual circumstances.
5.
Anyone who feels unable to pay the advocate at the publishes rate,
(currently $20.00), and for whom a payment schedule is of no help, is encouraged
to contact the advocate to see if he or she is willing to reduce that rate.
6.
If the advocate is unwilling or unable to reduce the rate, the party
should make an application to the coordinator of the administrative tribunal.
The coordinator shall furnish a financial disclosure form to be filled
out by any party requesting relief. If
determined to be indigent, the Archdiocese will then pick up the advocate’s
fee, minus the $20.00 minimum charge.
7.
It is not anticipated that most cases will involve significant expense to
any party except for the retention of an advocate.
However, in the unusual case where there is a need to transport
witnesses, or pay for the services of an expert, or any other significant
expense, the procedure shall be the same as in no. 6 above.
Under these circumstances if justice demand it, and if the party
genuinely lacks adequate resources, the Archdiocese shall bear these costs.
8.
All decisions regarding financial responsibility may be appealed to the
judicial vicar, whose judgment in such matters shall be final.
Article XI: Confidentiality
Section 1 – The fact that a case has been filed with the tribunal, as well
as the names of the parties, shall be a matter of public record.
Section 2 – A notice shall be sent to all interested parties when a case
is accepted for review by the administrative tribunal.
Section 3 – All documents, proofs, or acts in a particular case may always
be viewed by any member of the administrative tribunal in the course of their
official duties.
Section 4 – In any case involving a minor, or in any case involving
especially sensitive matter, the case shall be sealed and the facts and
documents of the case shall be restricted to those who actually need them.
Section 5 – In all other cases, the facts and documents of the case shall
be a matter of public record, unless the judge or judicial vicar chooses to seal
them, either in response to a request of one of the parties or sua sponte.
Section 6 – In all cases, general information which can be divulged
without identifying any of the specific parties may be shared with professional
bodies for study and research purposes as well as to develop a body of
jurisprudence.
Section 7 – Any communications between a party and their advocate shall
always be absolutely confidential. The
advocate and the party shall consult before deciding what facts to make a part
of the official record.
Article XII: Interpretation
The judicial vicar has final authority to interpret these policies in any
case until a court is appointed in that case.
Once a court is appointed, the presiding judge has final authority to
interpret these policies.
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