Rota Questions

greenspun.com : LUSENET : Catholic : One Thread

Does anyone here have any knowledge or experience with a Complaint of Nullity when appended to a Rota Appeal?

I am in the role of the Respondent appealing a decision of nullity from a diocesan tribunal. My question is on proper protocols in that I do not appear to be getting communications delivered to me from the Rota through the diocesan tribunal involved.

My case involves both an Appeal and a Complaint of Nullity to the sentence of the first instance tribunal. The case was appealed to the Rota for second instance consideration by filing an appeal at the first instance tribunal, but this was disregarded and the case was improperly considered for second instance consideration at a second diocesan tribunal which delivered a conforming erroneous decision. Thus the appeal also involves a complaint of nullity.

There appears to be a hold-up in that communications from the Rota are to come to the parties (my wife and I) through the lower tribunal involved. The reason I know there may be a problem is that the lower tribunal refuses to respond to my written inquiries, and I have already received acknowledgement of my filing from the Signatura which communicates with the parties directly through the Papal Nunciature.

The Appeal and Complaint was filed with the Rota two months ago now and the diocesan tribunal and the Signatura were all copied onn the same day. The Signatura responded with acknowledgement in less than three weeks. The diocesan tribunal has not responded to any of my written inquiries over the past two months.

My questions are as follows:

If the decree of nullity is properly appealed to the Rota, is not the decree of nullity (and declaration of freedom to marry) then automatically suspended?

Is not the diocesan tribunal required to immediately notify both the parties of an appeal to the Rota and the automatic suspension as soon as the appeal is made (thus letting them know that they are not free to marry until the question of nullity is fully decided)?

One request made to the diocesan tribunal when they were given a copy of the filed Appeal and Complaint of Nullity was for a suspension of their decrees by themselves. There has been no response to this in my letters to them. The same request has been made to the Rota. If the Rota also suspends the decrees of the lower tribunals, this communication will come from the Rota through the lower tribunal to the parties. Any idea how long this takes?

The Appeal, if it is considered on the merits entirely usually takes a couple years, but the Complaint of Nullity can happen much faster and can result in a Decree of Nullity to the Decree of Nullity. Any idea how long this takes?

If the diocesan tribunal has information or a communication from the Rota to the parties, but is not then communicating this to the parties, what is the best way of discovering this and addressing it to the proper authorities? I know the acknowledgement comes from the Rota within less than a month after a filing is made. So this should have been delivered to the parties weeks ago.

Thanks and God bless,

Anonymous

-- Anonymous (anon@anon.com), June 27, 2004

Answers

The real important question is this:

If the diocesan tribunal has information or a communication from the Rota to the parties, but is not then communicating this to the parties, what is the best way of discovering this and addressing it to the proper authorities? I know the acknowledgement comes from the Rota within less than a month after a filing is made. So this should have been delivered to the parties weeks ago.

The passage of time makes this more than just a possibility at this point. It is a probability that grows every day.

-- Anonymous (anon@anon.com), June 27, 2004.


If the decree of nullity is properly appealed to the Rota, is not the decree of nullity (and declaration of freedom to marry) then automatically suspended?

No. Canon 1684 does not include such a requirement. And if you are thinking of canon 1353, it does not apply because no penalty is involved.

Canon 1684 §1 After the judgement which first declared the nullity of the marriage has been confirmed on appeal either by decree or by another judgement, those whose marriage has been declared invalid may contract a new marriage as soon as the decree or the second judgement has been notified to them, unless there is a prohibition appended to the judgement or decree itself, or imposed by the local Ordinary.

Canon 1353 An appeal or a recourse against judgements of a court or against decrees which impose or declare any penalty, has a suspensive effect.

-- Mark (aujus_1066@yahoo.com), June 29, 2004.


Dear Anon,

My experience tells me the best you can hope for is that the Rota will arrive at the truth regarding the validity of your marriage.

I have seen no attempt at the Church controlling the illegal activities of canonists or other clerics with respect to their actions in marriage cases--no matter the consequences to the wronged party.

Grow thick skin my friend, you will need it.

I am truly sorry.

Karl

-- Karl (Parkerkajwen@hotmail.com), June 29, 2004.


Karl,

My satisfaction appears to be unfolding rather quickly. Its a matter of knowing who to call and how to be diplomatic at bringing attention to your case.

I'm amazed the Signatura has shown an interest. I'm told this is very rare. But since the first intance tribunal appears to have acted in a manner that would offensively deprive (actually, this is extremely offensive) the Holy Father of jurisdiction for the second instance decision, it appears my case is getting the fast-track.

Mark,

The canons you cited are not applicable because the second decision by a diocesan tribunal is illegitimate. That forum was rendered absolutely incompetent to hear the case when I filed my initial appeal to the Rota after the first instance sentence.

In my case, since the Rota Appeal was properly filed at the first instance tribunal within 15 days following notification of the first instance sentence, the following two Canons are operative:

Can. 1682 §1. The sentence which first declared the nullity of the marriage is to be transmitted ex officio to the appellate tribunal within twenty days from the publication of the sentence, together with the appeals, if there are any, and the other acts of the trial.

Based on this canon, the only place a second instance decision could have been considered is the Rota where the decision and my appeal were to have been sent. Unfortunately, the first instance tribunal ignored this critical canon that specifically applies to marriage cases.

My argument that the declaration of freedom is improper goes to both the first instance decision and the jurisdictionally illegitimate second instance decision. The operative canon is this.

Can. 1638 An appeal suspends the execution of the sentence.

I figured out how to solve my mail problem with the diocesan tribunal yesterday as I have hired my own advocate in Rome. The mandate will be filed at the Rota this week and all mail from the Rota to me will now come through my advocate, instead of through the first instance tribunal.

The wheels of justice are rolling in Rome. What I need now is for the local tribunal to formally recognize that the declaration of freedom to marry is erroneous and not recognizing this is irresponsible to the moral formation of my wife who happens to live in that diocese and is looking to that diocese for her moral guidance on this matter.

The Rota may have already done this itself as the request was incoporated into the Appeal/Complaint of Nullity. I'll know soon if this is the case, and if the first instance tribunal is sitting on this information that should have already been communicated to my wife and myself.

-- Anonymous (anon@anon.com), June 30, 2004.


The following is taken from pp. 49-50 of "Trends in Rotal Jurisprudence: Surveying U.S.A. Cases (1980-1985)", by William A. Varvaro, in Proceedings of the 53rd CLSA Annual Convention, pp. 19- 62:

"A new procedural element must be considered due to the possibility of conflict arising when an appellate jurisdiction issues a decree of ratification of an affirmative decision, while a party or the defender appeals the affirmative decision to the Rota. One such case is found among those surveyed. Mary Joan approached the tribunal of Monterey in California on August 15, 1974 and an affirmative decision was given on June 17, 1976. The defender of the bond and the advocates of the parties appealed to the higher tribunal of Los Angeles. But the respondent, on his own initiative, appealed to the Rota on July 3, 1976. Meanwhile, the tribunal of Los Angeles issued a confirmatory decree on July 13, 1976 ratifying the affirmative decision given by Monterey. The defender of the bond of the Rota said that the action of the male respondent could not affect the first and second judicial sentences since they were given in accordance with the law; but he did say that the respondent could seek a new proposal of the case if he had serious and new arguments to propose. The doubts were formulated as follows: Are the affirmative sentence of Monterey and the ratification decree of Los Angeles null? If so, has the nullity of marriage in the first instance been proven? If not, is a new proposal of the case to be admitted? If so, has the nullity of the marriage been proven. [sic] Nine years later, the Rota determined on July 13, 1985, that a new proposition of the case was not to be admitted and that the question of nullity was not to be examined. (footnote: Coram DiFelice, July 13, 1985, in Decisiones (LXXVII) 373-378.) I would guess that we can anticipate other cases of a similar nature since there is an inherent problem with the present law covering appeals and the confirmatory decree, since it allows appeals to the Rota at the same time as it prescribes a mandatory review of all affirmative decisions of nullity."

-- Mark (aujus_1066@yahoo.com), August 18, 2004.



Interesting case Mark. But some important facts are missing including:

1) Why on Earth was the Respondent acting independently of his advocate in appealling to the Rota?...this causes me to ask whether his advocate had a valid mandate, and whether the advocate was properly advising the Respondent on appellate procedure (as would have been his duty); 2) Where did the Respondent place the appeal (did he place it with the first instance tribunal or did he just mail it to Rome?) and when was he actually notified of the first instance decision?...the appeal here was made prior to the 1982 Code under which the Respondent has 15 days from his actual notification to place his pre- emptory appeal with the first instance tribunal. Because the case facts occur prior to 1982, this point of procedure is a bit up in the air; 3) Did the Respondent merely request what amounted to a third instance consideration without introducing evidence (another instance of the negligent advocate) or was he really seeking for second instance consideration at the Rota by Appeal in addition to a Complaint of Nullity?

It just appears to me that this Respondent was not getting adequate legal advice from the advocate that was probably appointed to him by the tribunal or the first instance bishop. This is the heart of the problem. These advocates are not really advocates. They are in fact an obstruction to justice.

I'll take a look at that C.L.S.A. book you cite. Unfortunately, it is my experience that members of the C.L.S.A., and that organization as a whole, are pretty much beholden to the local diocesan bishops, both in their activities and in the material they publish. When I tried to get help from the C.L.S.A. at different times in my own case I was repeatedly (over the years) treated like a bit of stinky, bothersome, ignorant garbage (at least that was my perception of their treatment).

I've analyzed the most recent Annotated Code of Canon Law published by the C.L.S.A. and find their commentary on the marriage statutes in the Code to be highly slanted to favor an interpretation that favors petitioners and tribunals that are pro-nullity. Of course, these same statutes are interpreted differently in Rome (where they were written) and by the Holy Father (the sole authoritative legislator).

Great input! If you get a chance, take a look at the Rota cases published in Monitor Ecclesiasticus (M.E.). The cases there are not selected for publication and translated through the C.L.S.A. filter. I find the cases and commentaries in M.E. to be much more objectively presented.

Once more, if you feel you are being mistreated or ignored in a tribunal proceeding and want better representation by a solid canon lawyer that will provide objective advice, contact me at this email and I can help you get one. Or contact the Saint Joseph's Foundation in Texas. They can be found via Google.

-- Pat Delaney (pat@patdelaney.net), August 19, 2004.


I'll see if I can find any copies of Monitor Ecclesiasticus.

That particular CLSA Proceedings (53rd, 1991) only had one other paper relevant to this discussion:

"The Right of Defense in Certain Stages of the Matrimonial Process as Found in the Decisions of the Roman Rota", by Mark A. Plewka, pp. 249-262.

-- Mark (aujus_1066@yahoo.com), August 19, 2004.


Moderation questions? read the FAQ