cormacburke.me.ke

Justice and Transparency in Matrimonial Decisions Angelicum (Rome) vol. 89-1 (2012), pp. 223-244.
Cormac Burke, Judge of the Roman Rota, 1986-1999

There is something both attractive and demanding in the law and in its proper administration insofar as they correspond to the pursuit of both truth and justice. Pope John Paul II dwelt on this in his 1994 Address to the Rota [1]. There he discussed "the intriguing relationship between the "splendor" of truth and that of justice". "As a participation in truth", he said, "justice too has its own splendor that can evoke a free response in the subject - one not merely external but arising from the depths of one's conscience... Hence it is legitimate to speak of the splendor of justice (splendor iustitiae) and of the splendor of the law (splendor legis) as well... It is only right, then, that human laws should aspire to reflect in themselves the splendor of truth. Obviously, the same can said of their concrete application, which is also entrusted to human agents. Love for the truth must be expressed in love for justice and in the resulting commitment to establishing truth in relations within human society; nor can its subjects be lacking in love for the law and the judicial system, which represent the human attempt to provide concrete norms for resolving practical cases. For this reason it is necessary for all in the Church who administer justice to reach the point of perceiving its beauty through regular conversation with God in prayer. This will enable them - among other things - to appreciate the wealth of truth in the new Code of Canon Law".
Applying these broad considerations further, John Paul II emphasized how, in the careful way that church law balances personal rights and duties, everyone should be able to discover its splendor or beauty. "Ecclesiastical law is concerned with protecting the rights of each person in the framework of the duty of all towards the common good... When pastors and ministers of justice encourage the faithful not only to exercise their ecclesial rights but also to be aware of their own duties in order to fulfill them faithfully, we wish precisely to urge them to have a direct, personal experience of the splendor legis".
The law, then, and its just application, should be rooted in the truth that is loved, that is loved even when it is challenging or demanding. John Paul well knew that such a concept of the law - of the law based on truth - would have little or no resonance in our secular world which subjectivizes and relativizes the truth to the point that it no longer exists. The secular attitude believes in "my" truth, but not in the truth. Catholics believe in the truth, not only in the revealed truth of salvation, which is easily found in Scripture, Tradition, and the Church's infallible magisterium (DV 10), but also in the objective truth of human situations, and concretely - to center on our present interest - in the truth of justice in interpersonal relations, when the issue of what is due to each is to be determined. But here the determination of the truth is seldom an easy matter, and indeed is practically always a fallible task. Nevertheless a judge who savors the beauty of the law in its delicate concern to attend to both rights and duties, is more likely to be balanced and objective in procedure and judgment.
Pope John Paul is fully aware that the task of pronouncing on the truth of a case is not easy. Indeed he says: "Truth is not always easy: its affirmation is sometimes quite demanding. Nevertheless, it must always be respected in human communication and human relations. The same applies for justice and the law: they do not always appear easy either. The legislator - universal or local - does not have an easy task. Since the law must look to the common good. it is quite understandable for the legislator to ask even heavy sacrifices of individuals, if necessary".
There is a further point which he also underlines: "You are well aware of the temptation to lighten the heavy demands of observing the law in the name of a mistaken idea of compassion and mercy... But if the rights of others are at stake, mercy cannot be shown or received without addressing the obligations that correspond to these rights. One is also duty-bound to be on guard against the temptation to exploit the proofs and procedural norms in order to achieve what is perhaps a "practical" goal, which might perhaps be considered "pastoral," but is to the detriment of truth and justice".
We are all aware of this temptation; we can understand it. But we should weigh well the consequences of observing, or not, the heavy demands of faithful administration of the law. People in the Church need to sense that the rule of law prevails, in justice to all. This is a first human requirement for the building of a genuine ecclesial communion. As against this, the subordination of the law to individual claims or interests which do not withstand the scrutiny of truth, creates the growing impression that this is not the Church of Christ. The Pope presents these alternatives: On the one hand, "taking advantage of justice to serve personal interests or pastoral practices - however sincere - that are not based on truth, will result in creating social and ecclesial situations of distrust and suspicion, in which the faithful will be tempted to see merely a struggle of competing interests and not a common effort to live in accordance with law and justice". On the other, "if those who administer the law strive to maintain an attitude of complete openness to the demands of truth, with rigorous respect for procedural norms, the faithful will remain convinced that ecclesial society is living under the governance of law; that ecclesial rights are protected by the law; that in the final analysis, the law is an opportunity for a loving response to God's will".
It is good to bear the foregoing in mind as we turn to a particular matter of procedure, and to the interplay of rights and duties that must be weighed in its application.
A case in point
Among other e-mails that my website brings in, a number come from respondents in marriage cases. They inquire about procedural matters, and particularly about how to proceed if, after a first instance Affirmative decision, they wish to appeal to the Roman Rota. Case after case has served to confirm the impression I formed during my years at the Rota (an impression which was common among the judges there) that, especially in the English-speaking countries, quite a number of local tribunals show a lack of due respect for the rights of the respondent, a reluctance to inform him or her of the ways open to them if they oppose a first instance decision and at times, it must be added, even a certain misrepresentation of the difficulties (especially in relation to costs) which may arise from an appeal to the Rota.
One senses a trace of partisanship here, as if the Judicial Vicar or the judges involved, yielding to a pro-nullity pastoral stance, had lost the impartiality that is a necessary quality of the just judge. If the judge, whatever his personal feelings or leanings, does not seek the truth of a case as it emerges from the actis et probatis, he is a poor judge. And if he does not actively help a party to exercise his or her ecclesial rights but rather misleads them in the matter, then he violates not only the letter of the law but its whole spirit as well, and is not worthy to be a judge.
Hitherto I have been reluctant to bring more public light on the matter, also because not all my correspondents gave the impression of sufficient lucidity and objectivity in their evaluations. However a case turned up recently that struck me differently, and also provided many concrete details which illustrate what unfortunately seems to be a rather widespread problem.
A U.S. correspondent (I will refer to him as XY) e-mailed me simply asking for advice about his desire to appeal to the Roman Rota in order to have the Affirmative first instance decision just given to his wife's petition for nullity, heard in Rome in second instance. It was XY's balanced and objective tone that led me to follow his concern more closely.
After an initial exchange of e-mails, I wrote to him: "I am glad you have been discreet and have not mentioned the name of the first instance tribunal. That allows me more leeway to give a general opinion. Again I am glad you have not presented me with the merits of your case, as you see it. I never give any opinion on the merits of a case; that is a matter for the tribunals to decide. In cases like yours the only observations I am ready to make concern your rights in the matter of procedure".
I will try to put together the main issues of the matter as emerge from the correspondence between XY and the tribunal.
In a letter of July 7, 2011, the Judicial Vicar of the tribunal informed XY of the Affirmative Sentence which had been handed down in first instance. No copy of the Sentence was enclosed, the Judicial Vicar simply informing the respondent of his right to appeal. He did so in these terms: "If you have serious reason to challenge this decision, or if you think your rights as recognized in church law have been violated, you yourself have the right to appeal this decision to the ordinary Court of Appeals named above, or, in extraordinary cases, to the Roman Rota. You may make this appeal within twenty-one (21) days of the date of this letter by presenting to me in writing the reason why you believe the decision is in error, or what rights were violated."
The respondent e-mailed me this brief communication and very reasonably asked, "does my being able to appeal directly to the Roman Rota to hear the case in the Second Instance, depend on whether the Court of First Instance deems the reason worthy of going to the Rota? Is the Court of First Instance within their right to require that I provide them with a list of reasons and/or grievances as to why I wish the case to be heard in Second Instance by the Roman Rota? I question whether it is their place to subjectively determine whether they think a reason may be "serious" or not. I would prefer not to provide any reasons, nor list what I believe to have been abuses during the process, to the Court of First Instance, but rather, would include this information in my appeal to the Rota" (emphasis added).
The letter from the Judicial Vicar also stated: "Although it is not necessary to do so, you may, for some substantial reason, review this decision. If so, please contact your Procurator/Advocate". XY asked me again: "Would I not have the right to view the Definitive Sentence, again, without regard to the tribunal's subjective judgment of what might be a "substantial reason" to review the decision? If my understanding is correct, I believe this right is found in canon 1615. I would think one would need to know the reasons given for the affirmative decision in order to be able to make an informed appeal of that decision. I have heard that what one would want to ask for is the Definitive Sentence, and not just a summary of the decision. Does that advice sound correct?" There are major points here that we will examine later. For the moment let us consider the issue of the appeal to the Rota.
Appeal to the Roman Rota
The respondent was quite right to raise these difficulties and to sense that there was something wrong here. The Judicial Vicar effectively misrepresents the law in saying/implying that an appeal to the Rota can be made [only] "in extraordinary cases". Canon 1444 states, as a matter of common law, that the "Roman Rota judges... in second instance, cases which have been judged by ordinary tribunals of first instance and have been referred to the Holy See by a lawful appeal". For an appeal to the Rota to be lawful, all that a party to a case has to do is to signify to the first instance tribunal his or her will that the Rota judge the case in second instance. If he or she does so, the first instance tribunal should communicate the appeal without delay to the Roman Rota; and with that, the jurisdiction of the first Instance tribunal ends. From then on, if the Rota accepts the appeal, the local tribunal's role in the case will be that of simply carrying out whatever indications the Rota may give - for the gathering of further evidence, etc.
The Judicial Vicar also showed a lack of both prudence and justice in insisting that "serious reasons" are required for an appeal to the Rota. If a respondent appeals, it will obviously be for what he or she subjectively considers serious reasons. It is up to the Rotal judges to decide not so much whether the respondent's reasons were truly serious, but whether the facts and arguments on which the first instance judges based their decision could be considered serious enough in law to justify the declaration of nullity given by them.
The Judicial Vicar equally misled the respondent in suggesting that as a condition of being able to appeal to the Rota he must "within twenty-one (21) days of the date of this letter [present] to me in writing the reason why you believe the decision is in error, or what rights were violated". This 21 day ultimatum is absurd - not only because the respondent had not even read the decision but also because there is no indication that it had actually been published under cc. 1614-1615: and, as c. 1614 says, "before publication it has no effect". We will return to this point later.
I replied to the respondent as follows: "Your right to appeal to the Rota is absolute (c. 1628; c. 1444, §1) and cannot be restricted by the local tribunal. It is up to the Roman Rota (and not to the first instance tribunal) to judge both the merit of the case and/or any claim you may make that your ecclesial rights have been violated. Of course you have the right in law to see a copy (and not just a summary) of the first instance Sentence (c. 1615). If you have had an advocate (perhaps assigned to you by the tribunal), then he or she may have received a copy of the sentence. This does not take from your right to receive the same full sentence either directly from the tribunal or from your advocate."
In making that last statement I was of course aware that some tribunals send a copy of the sentence to the advocate(s) alone, and are reluctant to provide one to the respondent. They seek support for this policy in canon 1615: "The publication or notification of the judgment can be effected by giving a copy of the judgment to the parties or to their procurators, or by sending them a copy of it in accordance with can. 1509". To my mind, it is quite abusive to appeal to the first "or" in this canon ("to the parties or to their procurators") as if this warranted a refusal on the part of the tribunal to give a copy of the full sentence to the respondent [One could also bear in mind that in many cases, though not in the one under study, the advocate is an official of the tribunal, accepted by the respondent at the suggestion of the tribunal itself [2]].
The commonsense question strikes one immediately, as it struck the respondent in this case: how can a person enter a proper appeal against a sentence the text of which they have not received or which they are not allowed to have in their possession for further study? To follow this restrictive practice (and all the more so to consider it justified), is to ignore the most elementary notions of equitable legal procedure. Consider what the Encyclopedia Britannica says in relation to civil court judgments: "originals of judgments are filed in court clerks' offices; the parties may then procure copies to use as they see fit" (Enc. Britannica CD edition 1997, under "Civil Law Procedure").
Whatever doubts or quibbles there may have been on this, the matter has been made quite clear in Dignitas connubii.
"Art. 281 – § 1. An appeal must be filed before the judge by whom (a quo) the sentence was issued, within the peremptory time limit of fifteen canonical days from notice of the publication of the sentence (can. 1630, § 1). § 2. It is sufficient that the appellant party signify to the judge a quo that he is filing an appeal."
"Art. 285 – § 1. In order to pursue an appeal, it is required and it is sufficient that the party calls upon the assistance of the higher judge to emend the challenged decision, attaching a copy of this sentence and indicating the reasons for the appeal (can. 1634, § 1). § 2. But if the party cannot obtain a copy of the challenged sentence within the canonical time period, the time limits do not run in the meantime and the obstacle is to be made known to the appellate judge, who is to oblige the judge a quo to carry out his duty as soon as possible (can. 1634, § 2)."
Expenses, if one appeals to the Rota
The next point to come up was the question of expense if one appeals to the Rota. In my experience it is quite common for tribunals to suggest to a party thinking of an appeal to Rome, that this is a very expensive practice. This is not true.
XY was put through some difficulty on the matter. On July 7, 2011, he communicated his decision to appeal to the Rota. The Judicial Vicar replied the same day, also by e-mail [3]. After indicating that XY would have to see his Procurator in order to view the Sentence, he gave the following explanation about fees: "the fee that the Tribunal assesses the petitioner, in any case before it, covers the fees that are paid to the ordinary Court of Second Instance for the first [i.e preliminary] decision that the Court of Second Instance must make. The first decision is whether to confirm the First Instance decision or to open the case to an ordinary examination. If the Court of Second Instance decides to open the case to an ordinary examination, then it sets the court costs or fees and how much each party is assessed. The fee the tribunal assesses the petitioner does not come close to covering the court costs for cases that go to the Roman Rota. Therefore, the Tribunal will assess you, as the party appealing to the Rota, some court costs to make up the difference in court costs. At this time, the Tribunal is assessing you $400.00 to assist in covering the additional court costs of the initial appeal to the Rota. If the Rota decides to open the case to an ordinary examination, then you will be assessed additional court costs, as determined by the Rota, which again will be assessed through this Tribunal".
The Judicial Vicar is sowing confusion here, as he will continue to do. How can he honestly suggest that the costs of forwarding the appeal to Rome will be $400 or more ("to assist in covering the additional court costs...")? All that the Tribunal has to do is to notify the Rota of the appeal and to forward a copy of the Acts of the case. More importantly, on what grounds does he assert that the respondent, "as the party appealing to the Rota", will have to pay $400 now, as well as future additional court costs, as determined by the Rota?
Agreement between the Rota and the U.S. bishops
In communicating this to me, XY added: "As you might imagine, after having been forced through "no-fault" divorce, I don't have the financial means that they are requiring, in order to defend against the First Instance affirmative decision. And, after speaking with my Procurator/Advocate, a very good priest who he himself is a canon lawyer who served on the tribunal for 10 years as a judge and one additional year as a Defender of the Bond, he sounded fairly certain that in his diocese, where the case would go, absent my appeal to the Rota, it would surely get a conforming affirmative decision, and thus a decree of nullity would be issued." This opinion of his Procurator/Advocate naturally increased the respondent's desire to have the Rota as a second instance court in the case; but the Tribunal was unjustifiedly making it seem difficult to go ahead with his appeal.
In reply I sought to clarify the legal situation as best I could: "Re costs of an appeal to the Rota; the Web offers incomplete or misleading information. An agreement was made some twenty years ago between the U.S. bishops and the Rota whereby, in a case coming from the U.S., an ex officio Rotal Advocate is assigned to the parties without any fee [or further cost later]; and the diocese contributes $850.00 to the Rota (see September 2002 Newsletter of the Canon Law Society of America). It may be that some dioceses seek to pass this charge on to a party appealing to the Rota from a first instance decision. But that was not the mind behind the agreement mentioned. Nor does it seem just."
In support of this last statement, I went on to say: "The Petitioner in first instance chooses to exercise a right to claim nullity. If the Tribunal accepts the petition (cf. c. 1505, §1), it is logical that the Petitioner makes a payment towards the expenses of the case. But if the Respondent is opposed to the claim, there would be no logic whatsoever in requiring him or her to share in the expenses of a case initiated by the Petitioner. Taking this a step farther, if after a first instance Affirmative decision, the Respondent pursues his or her right of defense by appealing to the Roman Rota, justice requires that the local Tribunal facilitates this appeal and does not seek to make it more difficult - e.g. by suggesting that the Respondent must pay something in the order of $500 or $850. This would be totally contrary to the terms and spirit of the agreement mentioned above.
This point is borne out more strongly by the fact that while the first instance hearing following on the Petitioner's claim certainly does involve a diocesan tribunal in considerable work and expense, this is not so if the case is appealed to Rome. All the diocese has to do is to forward the Acts of the case to the Rota, and possibly gather some further details of evidence, for the sake of clarification. A party appealing to the Rota may hire a Rotal lawyer on their own. But that is an expensive procedure. If the Rota accepts your appeal, you could request an "ex officio" (gratis) rotal advocate to represent you. If you choose, you can certainly make some sort of contribution to the expenses of the Rota. It is the Vatican, not the local diocese, that bears the burden of these costs - which far exceed $850.00".
It should be borne in mind, however, that where the Respondent opposes the nullity, his or her concerns are already thoroughly defended by the rotal Defender of the Bond [3a].
On July 15, XY communicated to me that he had just received the following e-mail from the Judicial Vicar, on this matter of the costs to be incurred by a party who appeals to the Rota: "There is no arrangement with the Rota whereby an appellant to the Rota is not charged anything. Just like any court, ecclesiastical or secular, there are costs incurred with the operations of the court - the Rota and this Tribunal are no different. The United States Conference of Catholic Bishops and the Rota have entered into an arrangement that determines the cost of the initial filing fees - $800.00, US dollars, although there apparently is some discussion that there may soon be an increase in the filing fees. Almost all US tribunals have court costs that are assessed to one or both parties. Many US tribunals assess additional court costs when the case goes to the Second Instance Court and some US tribunals will not send the case on until the costs are paid. The bishops of this Province have an arrangement regarding costs when it comes to ordinary second instance courts; however, each tribunal is on its own when it comes to cases that go to the Rota. The policy of this Tribunal is to assess the appellant to the Rota, $400.00 with the Tribunal, using part of the first instance fee that the Tribunal almost always assesses to the petitioner to cover the additional initial rotal filing fees. If the Rota assesses additional fees when they open a case to an ordinary examination, then we pass that fee along to whomever the Rota indicates is assessed the fee. Many tribunals in the US assess the full $800.00 US dollars to the appellant and do not send the case until the fee is paid. It is the policy of this Tribunal to assess the fee to the appellant and the appellant can pay monthly. The Finance Office issues monthly statements and we encourage appellants to pay at least a minimum amount each month."
On July 18, XY asked the Tribunal for further clarification on this matter: "Your reply still leaves me a bit puzzled. It seems to indicate that I as appellant must pay the fees you assess (or agree to pay them in installments) - and perhaps further fees - before you will send my appeal to the Rota. I am not in a position to pay such fees, nor do I understand how the Respondent can be made liable for them".
Twelve days elapsed before the Judicial Vicar replied to this. He wrote: "Please carefully read the e-mail that I sent to you dated 15 July 2011. I did not say that you "must pay the fees...before (I) will send (your) appeal to the Rota." I did say that such a practice is the practice of many tribunals in the United States but it is not the practice of this tribunal. However, it is the practice of this tribunal to assess part of the fees that the Rota assesses to whomever is the appellant to the Rota. As I stated in my prior e-mails to you, this tribunal includes in the fee assessed to the petitioner of a case the fee for the de iure review should a case receive an affirmative decision and that fee also is used when a party appeals a decision to the Rota, which is not the ordinary court of appeal for this tribunal. However, the fee that the Rota assesses is more than the fee that this tribunal's ordinary court of appeal assesses. A respondent can be made liable for part or all of the fee assessed by the Rota, when it is the respondent who is the appellant because, as I stated before in prior correspondence with you, all courts have costs associated with the operations of the court, and, ordinarily, it is the party who initiates the action before the court who is assessed all or the major part of the court costs. Even combining the amount that you are assessed with the amount the petitioner was assessed for the de iure review by this tribunal's ordinary court of appeal does not equal the full fee that the Rota assesses - this tribunal makes up the difference. If, in the same circumstances, you had appealed this case to this court's ordinary court of appeal, you would not be assessed any cost by this tribunal or the ordinary court of appeal because a de iure review is required any way and thus, the petitioner is assessed the fee. Again, the Roman Rota is not this tribunal's ordinary court of appeal and therefore it is unreasonable to include the court costs for the Roman Rota in the fee assessed to the petitioner for the de iure review required if there is an affirmative decision, but rather to assess the fee to the party who chooses to appeal to the Rota. I do not know how I can make it any clearer. This Tribunal is preparing the documents to send the case referenced above to the Roman Rota. When the documents are ready, the case will be sent, whether you have paid something, all, or nothing of the court costs. At some point in the future, if not already, this tribunal will assess you $400.00 for court costs. Once assessment is made you will receive a monthly statement until it is paid. Should the Rota decide to assess additional fees, which may happen if the Rota decides to open the case to an ordinary examination, you will be assessed such fees. Once the case is in the hands of the Rota, this tribunal acts only as the point of contact between the parties and the Rota."
The Judicial Vicar's statement here does make his tribunal's policy clearer. What is not clear is whether this policy is based on any common law, and - less still - whether it reflects the intention and spirit of the agreement of the early 1990s between the Rota and the U.S. bishops. In effect the tribunal is insisting that the respondent, if he or she chooses to appeal the first instance decision to the Rota, is bound to pay the fee involved in such an appeal. This is to insist on what is false, for there is no such fee involved. Again it simply false to assert that if the Rota opens the case to an ordinary examination, it may decide to assess additional fees which will be passed on to the respondent. I have never come across a case where the Rota assessed additional fees to be passed on to an appellant. As explained above, the costs of a hearing at the Rota are covered in part by the $850 paid by the diocese; the remaining costs are paid by the Holy See itself.
"Sealing" of part of the Acts
Immediately after being notified by the Judicial Vicar of the decision XY spoke on the phone with his Advocate who gave him further information. "According to my Procurator/Advocate, it looks like a great deal of weight in coming to an affirmative decision was based on the psychological expert's evaluation of my wife. However, based on her Advocate's request, both her psychological records as well as the expert's report, were sealed so that I was not able to view them [at the moment of publication of the Acts]. Thus, I'm left with the question of how do I defend against an affirmative decision that was apparently largely based on information that was off limits to me?"
The respondent found himself placed in a situation where he was understandably perplexed. What I propose to examine is whether the situation in which he was placed is just and according the norms of church law. My opinion, which I will advance already, is that it is not.
Nevertheless, the "sealing" of part of the evidence - almost always the psychiatric or psychological expert's report on which the Sentence will most probably be based - seems quite widespread in cases of consensual incapacity (the grounds on which 95% or more of the petitions of nullity heard in the English-speaking world are based). The manner in which it is habitually practiced must be called into question, being based on a - to my mind, inequitable - application of a provision contained in c. 1598 which gives norms governing the publication to the parties of the Acts. The canon states:
"§1 When the evidence has been assembled, the judge must, under pain of nullity, by a decree permit the parties and their advocates to inspect at the tribunal office those acts which are not yet known to them. Indeed, if the advocates so request, a copy of the acts can be given to them. In cases which concern the public good, however, the judge can decide that, in order to avoid very serious dangers, some part or parts of the acts are not to be shown to anyone; he must take care, however, that the right of defense always remains intact" [emphasis added].
"§2 To complete the evidence, the parties can propose other items of proof to the judge. When these have been assembled the judge can, if he deems it appropriate, again issue a decree as in §1".
A number of points should be noted:
a) The last phrase in paragraph §1 must remain paramount in the mind of the judge in any application of the canon. The reason is that, in accordance with c. 1620, 7̊, any violation of the "ius defensionis" can lead to the irremediable nullity of the eventual sentence (and every canonist who has followed rotal jurisprudence will know that violation of the right of defense is by far the most common cause of a sentence being declared irremediably null).
b) This point is also a guide in studying the scope of the phrase, "in cases which concern the public good" (it is only in such cases that a judge can "seal" or deny access to some part or parts of the acts). Marriage and the validity of a marriage are certainly matters which concern the public good, for it is very much to the public good that the institution of marriage - marriage in its human reality, as created by God - be defended and that its dignity be recognized and upheld.
It is of course equally to the common good that only true and valid marriages be upheld. The maintenance of a null marriage (i.e. a union that was a non-marriage from the outset) would be contrary to the common good. That is why the Church's tribunals hear marriage cases, so that if the whole of the evidence properly weighed induces moral certainty in the judges that a marriage was null (no valid consent having been given), such a 'non-marriage' should be publicly declared null. Conversely, if the whole of the evidence does not induce that certainty, the plea of nullity should be denied. Either way not only is the dignity of marriage favored, but also the common good. For it is fundamental for the common good that a non-marriage should not be held as a real marriage, and that a real marriage should not be subjected to the violation of justice represented by an unwarranted declaration of nullity.
So, the Church has always considered matrimonial cases to involve the bonum publicum. This is also the reason why the hearing of such cases is governed by special procedural norms (cf. cc. 1671-1707). The public good is indeed prejudiced if, in a matter so important to society as matrimony, these norms are not faithfully observed.
But - then we come to the point. What grave danger to the public good is averted by the frequent practice of denying one of the parties access to all the evidence? The danger of increased resentment between the spouses? Unfortunately such resentment is usually there already, at least on the side of one of them. Is it a matter of public concern, of the public good, to contain such resentment? One could argue so, although some would maintain that it is rather a question of private good. However, one could only questionably argue that a possible increase in this resentment poses a grave danger to the public good. The most one could admit is that it poses a minor danger to whatever good one wishes, public or private.
Even if one did not fully agree with the above reasoning. it seems to me that whatever force it may have should be weighed by any disinterested judge when he considers refusing a party access to the full Acts under c. 1598. Moreover, if he does in fact "seal" part of the Acts, surely he should put on record what precisely was the grave danger to the public good that he regarded as justifying this drastic measure. Any reluctance to do so would seem to call into question his disinterestedness as a judge.
I would insist on this: that the judge must be clear in his mind, and specific on record, about the grave danger to the public good that he fears will result from disclosure of part of the Acts to one of the parties. The provision of c. 1598 that we are discussing is evidently meant for exceptional cases. It would be an abuse if its application were to become a general rule. The seriousness of this procedural measure becomes more obvious when one also considers that it cannot be justly taken without weighing any possible grave danger to the public good against the real injury done to the good - to the reasonable interest - of the party so deprived of the opportunity of knowing and contesting evidence on which the eventual judgment may hinge. After all, that too poses a danger to the due process of law, and hence a danger to the public good.
We could add a further consideration. Transparency in matters that affect the public is constantly being called for today. It is debatable whether or not the demand for transparency in civil trial is always a good thing; one can take one side or another. But in a matter as important for both parties concerned as a matrimonial case, transparency, to each of the parties, certainly corresponds to the splendor of justice. Justice simply does not shine through a veiled process tilted in favor of a one-sided decision.
c) The canon lays down an elementary rule of procedural law: that each of the parties should be fully acquainted with all of the evidence that the other has brought forward in support of his or her position, the purpose being to enable them, if they can and wish, to produce further evidence in rebuttal of the case advanced by the other side (cf. par. §2 of the canon).
It can help if we take a look at canon 1678: "§1 The defender of the bond, the advocates of the parties and, if engaged in the process, the promotor of justice, have the right: 1̊ to be present at the examination of the parties, the witnesses and the experts, without prejudice to can. 1559; 2̊ to see the judicial acts, even if they are not yet published, and to inspect documents produced by the parties." / §2 The parties themselves cannot be present at the sessions mentioned in §1, n. 1."
One might consider §2 of this canon as a limitation on the rights, or at least the desires, of the parties. But such a limitation is clearly in the interests of the objective instruction of the case. The presence of each party at the examination of the other or at that of witnesses, might have the effect on the one hand of worsening the probably already strained relationship between the parties themselves, and on the other of acting as a unwarranted constraint or inhibitory factor on the evidence of the witnesses, including the experts. That said, the fact that all the evidence will be seen by both parties does act as a warranted constraint on both witnesses and experts, favoring objectivity, balance and serenity in a process.
The right of defense
d) In my opinion (but of course I am speaking with hindsight) c. 1598 could have been more carefully formulated for, as presently worded, it does lend itself in practice to a violation of the "ius defensionis". Time and again the Rota has decreed the irremediable nullity of a sentence on the grounds that the refusal to let the respondent examine the Acts violated his or her right of defense. Bearing in mind the innovative nature of canon 1598 (it had no equivalent in the previous Code), it is interesting to note that its importance and proper application were the subject of one of Pope John Paul II's early addresses to the Roman Rota after the promulgation of the new Code: that of 1989 [4]. We will quote from it at some length.
He emphasized that "the new Code of Canon Law attributes great importance to the right of defense", for indeed "one cannot conceive of a just judgment without the concrete possibility granted to each party in the case to be heard and to be able to know and contradict the requests, proofs, and deductions adopted by the opposing party or ex officio" (emphasis added). "The right of defense of each party in the trial, that is, not only of the respondent but also of the plaintiff, should obviously be exercised according to the just dispositions of positive law. It is not the function of positive law to deprive one of the exercise of the right of defense, but to regulate it so that it does not degenerate into abuse or obstructionism, and at the same time to guarantee the practical possibility of exercising it. The faithful observance of the positive law in this regard constitutes a grave obligation for those engaged in the administration of justice in the Church".
Pope John Paul continued: "The right of defense demands of its very nature the concrete possibility of knowing the proofs adduced both by the opposing party and ex officio. Canon 1598, §1 therefore lays down that when the evidence has been assembled, the judge must, under pain of nullity, permit the parties and their advocates to inspect at the tribunal office those acts which are not yet known to them". And he emphasizes "This is a right of the parties and their advocates".
Then he deals with the exception mentioned in the canon: "in cases that concern the public good, the judge can decide that, so as to avoid very serious dangers, some of the Acts are not to be shown to anyone; he must take care, however, that the right of defense always remains completely intact"; and immediately comments, "With regard to the aforementioned possible exception, it must be observed that it would be a distortion of the norm of law and also a grave error of interpretation if the exception were to become the general rule. One must therefore abide faithfully by the limits indicated in the canon".
Unfortunately it seems that the exception has in fact tended to become the rule. Insofar as this has occurred it may be due to pseudo-pastoral criterion prevailing over a responsible juridical sense. But, as I have already indicated, I would also blame the poor wording of the canon itself. The trouble, I think, lies precisely with "the limits indicated in the canon". One of these limits or requirements (and certainly the most important) is that "the right of defense always remains completely intact". This is so elementary a requirement for the just carrying through of a case that any competent judge should have little difficulty in discerning if it is fulfilled or not. The law is so clear that one may say that little discretion or leeway of judgment is allowed to the judge in the matter. It is different with the other limit or condition indicated in the canon: that "sealing" of the Acts from one of the parties must be judged necessary "so as to avoid very serious dangers". The Code gives no clue as to what these "very serious dangers" may be (personally I find it surprising that such a broad and imprecise provision should have been given the status of a legal norm). So it is left to the discretion of the judge to determine: a) whether very serious dangers are indeed present; b) whether they appear serious enough to deprive a party of his or her right to know some important part of the evidence; and c) whether such deprivation undermines that party's right of defense.
"Sealing" of part of the Sentence?
The Pope was worried about the all-too-common abusive interpretation of c. 1598. In any case, it is clear that c. 1598 refers to the possible "sealing" of part of the Acts of the case at the moment of their publication. Such "sealing" is not foreseen when it comes to the publication of the subsequent Sentence. Regarding the Sentence, the Code lays down the following: "A judgment is to be published as soon as possible, with an indication of the ways in which it can be challenged. Before publication it has no effect, even if the dispositive part may, with the permission of the judge, have been notified to the parties" (c. 1614). "The publication or notification of the judgment can be effected by giving a copy of the judgment to the parties or to their procurators, or by sending them a copy of it in accordance with can. 1509" (c. 1615).
In the same 1989 address to the Rota, Pope John Paul II also wished to stress how the right of defense demands this publication of the Sentence. "In relation to the right of defense, it cannot be a matter of surprise to speak also of the necessity of publishing the judgment. How could one of the parties defend himself or herself in the court of appeal against the judgment of the lower tribunal if deprived of the right to know the reasons, both in law and in fact, supporting it? The Code therefore requires that the dispositive part of the judgment must be prefaced by the reasons on which it is based (see c. 1612, §3). This is not only to render its acceptance easier when it goes into effect, but also to guarantee the right of defense in the event of an appeal. Canon 1614 therefore decrees that a judgment has no effect before publication, even if the dispositive part has been made known to the parties with the permission of the judge. One cannot therefore understand how it could be confirmed in the appeal court without due publication (cf. c. 1615)".
These last words of Pope John Paul also bear directly on the case we have been considering. For the tribunal wished to "seal" from the respondent the sentence itself, or the most substantial part of it, i.e. the psychological report on which it mainly rested. XY wrote to the Judicial Vicar, expressing his natural perplexity when his Advocate confirmed that this "sealing" applied to the sentence also. "Having spoken with my Procurator/Advocate, I have been told that it appears substantial weight was given to the psychological expert's evaluation in determining the sentence. How can I be expected to pursue an appeal against a decision based on evidence that I was not allowed to see, due to the expert's report being sealed from my viewing? It seems elementary that the appellant should know on what basis the tribunal made their decision. So I must insist in asking that you forward me an authenticated copy of the full sentence" [5]. This was to produce a more than surprising response from the Judicial Vicar.
The right to see the full sentence
In a letter of July 30, the Judicial Vicar said: "You have received a copy of the decision because your representative, Fr. X, received a copy, which fulfills the requirement of the law. You have seen all the evidence in the acts, including the expert's report, because your representative, Fr. X, reviewed the expert's report as well as all other documents and declarations that the Court used in achieving moral certitude, which fulfills the requirement of the law. You may contact your representative and arrange a time with him to review the decision of this Court, which it seems to me is what any non-canonist would do rather than assuming that he or she has the necessary and sufficient knowledge of law and jurisprudence to understand a legal document written in a technical language."
The Judicial Vicar here engages in legalism, indeed in sophistry, that is unworthy of a judge. It is sophistry to assert that "You have received a copy of the decision because your representative, Fr. X, received a copy, which fulfills the requirement of the law". We recall c. 1615: "The publication or notification of the judgment can be effected by giving a copy of the judgment to the parties or to their procurators, or by sending them a copy of it in accordance with can. 1509". Does the Judicial Vicar seriously wish to argue that the mind of the legislator, in the use of these "ors", is that a party to the case can be excluded from having a copy of the full sentence? We would recall the paragraphs of Dignitas Connubii cited earlier.
Again it is sophistry to assert "you have seen all the evidence in the acts, including the expert's report, because your representative, Fr. X, reviewed the expert's report as well as all other documents and declarations that the Court used in achieving moral certitude, which fulfills the requirement of the law". It is more than sophistry if what XY wrote to me on August 6 is accurate: "my Advocate did read the expert's report. However, he advised me that he was required to take an oath or sign a document promising not to reveal the contents to me". Star chamber proceedings...?
Other less than transparent procedures
Now we turn to some lesser details where the splendor of justice appears to have been, deliberately or carelessly, put under a bushel. XY complains at having been misled or at least not properly informed about appointing an Advocate. On July 13 he wrote me: "One thing that I do believe put me at a disadvantage at the start of the case, is that my right to an Advocate, and how I go about appointing one, was not presented when I received the initial citation. Along with the initial citation, was included a form for me to indicate what level of participation I wished to have. One of the questions stated: "If you wish to participate, please give the information requested below regarding the priest you would like to assist you with the preparation of your testimony OR name the Catholic parish nearest you." Since there was no specific mention of one's right to an Advocate, and being new to this process and unfamiliar with canon law and Dignitas Connubii, I was under the mistaken impression that this request for me to name a priest to assist me with my testimony, was for the purpose of naming him as my Advocate.
I found out the tribunal did not view him as my Advocate, when I later questioned the timing of giving my testimony to my Advocate prior to the decree of the formulation of the doubt being notified to the parties, thus not knowing what grounds had been set upon which the validity of the marriage was being challenged. In response, the Ponens wrote that this priest would not be taking my testimony as my advocate, but would be representing the tribunal when taking my testimony. It was at this point, almost 2 1/2 months from the date of the initial citation letter, that mention of my right to a Procurator and/or Advocate was conveyed to me. I was also told that I was not required to have a Procurator and/or Advocate; stating a person can appear before the tribunal, pro se".
The Judicial Vicar, in informing the respondent that he had not in fact nominated an Advocate but was entitled to do so, put the matter rather negatively. He wrote: "You are not required to have a Procurator or an Advocate, as a person can appear before a tribunal, pro se. You appear to have knowledge of the law of the Church regarding marriage better than many advocates that I have experienced who have appeared before this Tribunal". Possibly the respondent considered acting "pro se", for in fact he only made up his mind to procure an advocate some three months later "when inquiring into the status of the case by phone, as all witness testimony had been submitted, as well as asking about what the process was to view the Acts once they are published, the tribunal notary stated that I would not be able to view the Acts without having an Advocate present. When I wrote to the ponens to confirm if that was correct, he now stated, "Yes, you must have an advocate in order to review the acts of the case not yet known to you once the decree publishing the acts is issued".
Possibly these rather painful misunderstandings could have been avoided if the initial documentation sent to the parties by the tribunal had been clearer. According to XY, the documentation included "a copy of the petition (libellus), which listed the various grounds one could petition for nullity of one's marriage, and a place for the petitioner to check indicating whether the chosen ground or grounds apply to the petitioner, respondent, or both. Finally, they included a brochure explaining the process and answering common questions. The text of the brochure was geared towards the petitioner, stating how they are put in touch with an Advocate by one's parish pastoral leadership (Pastor or Pastoral Administrator). No mention is made in the brochure of the respondent's rights. There was the following statement on the "Response of the Respondent" form, which I understood (incorrectly, it turned out) to be asking me to name my Advocate. It said, "If you wish to participate, please give the information requested below regarding the priest you would like to assist you with the preparation of your testimony OR name the Catholic parish nearest you." As I said, by asking me to name a priest to assist me with my testimony, I was under the impression that this was where I named my Advocate. As I knew nothing about the mandate for an Advocate/Procurator, and no mention was made of how one goes about obtaining or naming an Advocate/Procurator, I believed this was how I went about naming such."
That the respondent misunderstood the proper procedure is clear. It is also clear that the Judicial Vicar did little to help him avoid these misunderstandings. After all, a special obligation of justice weighs on the head of a tribunal to give impartial assistance to all the parties involved in a case, so that they understand procedural requirements.
The respondent also says that after the publication of the Acts he was allowed to inspect them - in part. "I believe what I was allowed to read was the complete Acts, except for the psychological expert's report/evaluation and any psychological and/or counseling records, which were sealed from my viewing". And then he repeats what we have seen earlier: "My Procurator/Advocate was allowed to view the expert's report, but had to take an oath not to reveal the contents of the report to me".
On the basis of what law, one may ask, can a Tribunal require the Advocate of one of the parties to take an oath not to reveal part of the evidence - a decisive part, it would seem - to his client? If, as in this case, the Advocate is a priest well experienced in tribunal work [6], surely the Judicial Vicar could have left it to the Advocate to decide how to harmonize common good and personal rights in the matter? XY felt that prejudice was at work in the matter. His final impression was "that merely for trying to defend the validity of my marriage, I was seen by the tribunal as a troublemaker..."
Expert evidence
The knowledge I have of this case is simply about procedural matters as related to me by the respondent. So I am in no position to judge on the merits of the Affirmative decision given, and have no wish to do so. Nevertheless, I sense some further significant flaws in the process by which the judgment itself was reached, and in the way it was written. Having frequently come across such flaws in similar cases, I would like to offer some reflections on them.
After what was said above, we will pass over the fact that the tribunal did not let the respondent have a copy of the Sentence. The most he could achieve was to read his Advocate's copy - in which the Expert's report was not included. He does not know if the copy was the full sentence or a truncated version of it. Let us presume that it was the full sentence - since otherwise, under cc. 1614-1615, it would not have yet been published and would have no effect. I will also take the liberty of presuming that (as the respondent's advocate indicated to him) the Affirmative decision rested mainly on the psychological expertise given in the case. If so, then the Sentence itself would seem to be defective inasmuch as it fails to observe some important canons governing the use of expert evidence.
Can. 1578 §2 states: "Experts must state... the principal arguments upon which their conclusions are based". This is common sense, for a conclusion not supported by cogent arguments is of little worth to a judge. The judge's conclusion in turn must be the result of clear reasoning. The next canon drives this home: "When he is giving the reasons for his decision, the judge must state on what grounds he accepts or rejects the conclusions of the experts" (c. 1579 §2). This is in accordance with c. 1611 3̊: the judgment must "set out the reasons or motives, both in law and in fact, upon which the dispositive part of the judgment is based".
It is clear then that insofar as a sentence is based in whole or in part on an expert opinion, it must cite the expertise and state why, in the judge's estimation, it gives grounds for the decision. Can the judge not simply accept the authority of the expert's opinion without any further judicial weighing of it? No; that is not to fulfil his proper function as judge.
This is not an idle matter. I recall a case (also from the U.S.) at the Rota, where the judge gave his detailed opinion (presented in psychological terminology over several pages) as to why the petitioner was consensually incapable. He then commented, "The tribunal's opinion is borne out by the findings of the psychological expert" - which were then given in full. Having read the judgment, I began to go through the expertise. After a few moments came the reaction, "I've read this before". And so it was, right through. The "tribunal's opinion" was in fact a word-for-word transcription of the psychological expertise. An extreme case, no doubt. Yet it is indicative of how far meekly accepted psychological opinions are taking the place of true judicial pondering of the evidence.
It is hard not to see an offense against truth and justice in the current practice of slotting practically all petitions for nullity under the grounds of consensual incapacity, and then of automatically calling in the services of a psychological expert (at times with very minimal professional qualifications) whose opinion becomes decisive. If psychology becomes the ultimate court of appeal and the definitive criterion for judgment, then we are in danger of undermining not only the credit of our judicial system, but that of psychology as a science. It would be evasion on the part of the judge to habitually delegate his function to the psychologist. At the same time no responsible practitioner of psychology, at least if a Catholic, would consent to having his or her professional opinion used as, in effect, the one grounds for something as ecclesially significant as a declaration of the nullity of a marriage.
More on experts
While on the topic of expert opinions, we could note another little-publicized canon - one that in contested cases (such as has sparked off this study) might in justice be brought to the attention of parties. This is c. 1581 which states (§1), "Parties can designate their own experts [peritos privatos], to be approved by the judge", and adds (§2): "If the judge admits them, these experts can inspect the acts of the case, in so far as required for the discharge of their duty, and can be present when the appointed experts fulfil their role. They can always submit their reports".
The judge is allowed considerable discretion here. He must approve or admit these private experts. He has the discretion (also in virtue of c. 1575) to admit their report into the Acts. This discretionary power of the judge is logical, given that a party might wish to designate a totally unqualified person as expert. On the other hand, it would be unjust for a judge to exclude an evidently qualified expert proposed by one of parties, to refuse them access to the Acts, etc., or not to incorporate their reports into the final Acts.
We could add that in rotal practice different experts often give contrasting opinions; and this is welcomed by the judges since it enables them to weigh and pronounce upon the merits of the varying opinions. This accords with c. 1579 §1: "The judge is to weigh carefully not only the experts' conclusions, even when they agree, but also all the other circumstances of the case".
The law is clear then about the role of psychological experts. They can be admitted when necessary (not therefore when not necessary). Canon 1574 states that their services are to be used whenever "their study and opinion, based upon their art or science, are required to establish some fact or to ascertain the true nature of some matter". In matrimonial cases, the "fact" or the "true nature of some matter" that the expert has to give his opinion on is simply the nature and the degree of the psychic disorder from which, in his opinion, one or both of the parties suffer or suffered. It is not his or her job to relate this disorder to capacity for matrimonial consent. That is a judicial matter for the judge or judges to decide upon, weighing all the circumstances of each case, and reaching a final decision in harmony with the two fundamental criteria in these matters that rotal jurisprudence (following sound logic) has established for judging consensual incapacity: that the psychic disorder alleged (however named) was grave; and that (as c. 1095 specifies) it must have been incapacitating with regard to the essential rights and duties of matrimony.
It is not a requirement in an ecclesiastical judge to have an academic degree in psychology. But it is certainly a requirement - of natural law, we might say; and certainly of common sense - that he have a practical degree of psychological wisdom, i.e. of insight or discernment. How otherwise can he be a competent judge of human situations, and particularly of the interpersonal relationship of marriage in its multiple aspects?
Canon 1598: and why not canon 1554, §3?
As things stand at present, the widespread current practice of "sealing" part of the Acts from inspection by one of the parties (particularly if he or she is opposed to the declaration of nullity) appears to me to be doing considerable damage to the credibility of our tribunals. If we want "the faithful [to] remain convinced that ecclesial society is living under the governance of law", then "those who administer the law [must] strive to maintain an attitude of complete openness to the demands of truth, with rigorous respect for procedural norms" [7]. Too many cases seem to lack this "rigorous respect" for procedure; the consequence is a rift in ecclesial society far greater than many would admit. Among respondents who oppose a declaration of nullity, there is a growing awareness of the right to appeal to the Rota, for a second instance hearing; and an awareness too that the Rota is far more sensitive to the issues arising out of c. 1598 than local tribunals may be. It could be the moment for local judges to ponder not only the continuing risk of appearing biased, but the very substantial danger of inviting a higher instance declaration of the nullity of a sentence due to violation of the right of defense.
To my mind, c. 1598 needs tidying or tightening up. As it stands, "very serious dangers" is far too loose an expression. It can mean almost anything. Further there is no provision that the judge must specify the nature of these very serious dangers. The drafters of the Code could well have followed a specification such as that found in c. 1455, §3: "the judge can oblige witnesses, experts, and the parties and their advocates or procurators, to swear an oath to observe secrecy. This may be done if the nature of the case or of the evidence is such that revelation of the acts or evidence would put at risk the reputation of others, or give rise to quarrels, or cause scandal or have any similar untoward consequence".
The factors listed here, to justify the imposition of an oath, are specific enough, and the canon itself is designed to avoid serious dangers to the public good. Canon 1455 has the advantage over c. 1598 of providing that both parties can be bound to secrecy. This avoids, on the one hand, the unilateral discrimination that so easily arises from c. 1598; and, on the other, the danger of violating the ius defensionis. Hence, so it seems to me, local tribunals would serve not only the Church and the faithful better but their own prestige and interests as well if, when thought necessary, they had recourse to c. 1455, §3 instead of c. 1598.

NOTES
[1] http://www.vatican.va/holy_father/john_paul_ii/speeches/1994/documents/h....
[2] An even more recent correspondent tells me that her Advocate is a tribunal member; and that early in a discussion about the case the Advocate said "she thought it was insulting of me to have stated several times that I was going to the Roman Rota. She said they were "threats" - She reiterated this three times - saying they were "threats"... She said "We are not afraid of the Roman Rota"..." My correspondent's reaction is understandable: "I asked her, very politely, in what way she was my advocate"; but she got no reply to that.
[3] A small point might be made in passing: that tribunals would be unwise and perhaps unfair to communicate too much through e-mail. Certainly the Judicial Vicar in this case did well to await the Respondent's written appeal to the Rota. We are in an area where matters are far too serious not to keep written records of every communication of some substance that takes place. The correspondence we have quoted between the Judicial Vicar and XY certainly had substance to it. It is to be hoped that the tribunal, also for its own sake, kept a full written record of these exchanges.
[3a] In order to clarify better the respondent's position, this observation (missing in the original printed version) has been added here.
[4] http://www.vatican.va/holy_father/john_paul_ii/speeches/1989/documents/h....
[5] In the end, the most the respondent could achieve was to briefly 'review' the copy of the sentence received by his advocate (involving him in a 5 hour trip). Apparently, although based on the psychological "expertise", the sentence did not give the expert's arguments nor ponder their value. This is perplexing in the extreme. It seems inconceivable that the respondent should have been shown a 'censored' version of the sentence, i.e. with the expert's report and the judge's evaluation of it cut out. It seems equally inconceivable that the judge should hand down an affirmative sentence based mainly on the report, but without giving and weighing the substance of the report's evaluation or conclusion. (See below on "Expert evidence").
[6] XY says of him, "He is a canon lawyer and served as a tribunal judge in a neighboring diocese for 10 years, and served one additional year as a Defender of the Bond. Apparently, he had quite a reputation of vigorously defending the bond, much to the dismay of many priests in his diocese who, as my priest friend said, "were telling petitioners that getting their annulments were a slam dunk (sure thing)." That didn't always turn out that way in cases which he was involved".
[7] 1994 Address to the Rota: see above.