"Judging and Firing Bishops': a Response to Thomas Reese

By Jennifer Haselburger
Canonical Consultation
November 28, 2014

http://canonicalconsultation.com/blog.html

Today, the online version of the National Catholic Reporter published a commentary by Father Thomas Reese, SJ, titled 'Judging and Firing Bishops and Due Process in the Church'. You can read it here. In his commentary (prompted, no doubt, by the recent rescript clarifying the resignation process for bishops), Father Reese expresses concern that 'When people do not like their bishop, they often call for the pope to fire him and appoint another'. Reminding us that bishops are not CEOs but rather the vicars of Christ (not to mention the successors to the Apostles), Father Reese argues that such removals should not result from caprice but rather follow an established process with recognized procedural protections in place. While I agree with many of the points that Father Reese makes, including his general call for due process protections, I disagree with his assessment that the absence of the protections that he lists indicate a 'paternalistic church that believes it always knows what is best for its children'. I would respectfully argue that Father Reese's position on 'people who do not like their bishops' is equally paternalistic, especially considering the very serious issues that have led to some of the removals that have occurred in recent times.

Let me be the first to admit that at this time last year, I would have (and did) articulate the same skepticism towards removing bishops that Father Reese expresses in his article. It is very difficult to reconcile Catholic theology with the idea of removing a bishop when he has earned, rightly or wrongly, the disfavor of his people. One only has to think of the situation of Archbishop Joseph Rummel and his desegregation of the Archdiocese of New Orleans to understand why bishops ought not to be subject to removal based on popular opinion.

Yet, there are certainly times when a bishop cannot be permitted to continue in office. Father Reese offers a number of examples of bishops who have resigned or been forced to resign, including Cardinal Bernard Law, Bishop Franz-Peter Tebartz-van Elst of Limburg (the so-called 'Bishop of Bling'), Bishop Joseph Martino of Scranton, Bishop Rogelio Livieres Plano, Bishop Thomas O'Brien (involved in a fatal hit-and-run), and Bishop William Morris of Australia (theological positions). I put together a similar list, exclusively of American bishops, that included Bishop James Sullivan of Fargo, Bishop Donald Pelotte of Gallup, and Bishop Fernando Isern of Pueblo. Laurie Goodstein of the New York Times reminded me of Bishop Robert Sanchez of Albuquerque, Bishop Anthony O'Connell of Palm Beach, Bishop Kendrick Williams of Lexington, and Archbishop Rembert Weakland of Milwaukee.

Many of the bishops on this list offered their resignations or were forced to do so as a result of public scandals involving their personal conduct. Others- including Law, Tebartz-van-Elst, Martino, and Livieres- were ousted because of administrative problems or personality issues. Bishop Fernando Isern is said to have resigned for health issues but has been dogged by rumors of an affair with a woman. In all of these cases one has to assume that the bishops were aware of the reasons why their resignation was being sought, and in many cases they admitted to the conduct that led to their resignations. Livieres and Morris, both who link their ousters to their theological positions, might be the exceptions, but in those cases there was extended dialogue and/or an apostolic visitation prior to a decision being taken. I am not sure it is fair to look upon these situations as evidence of an unjust form of paternalism. If anything, I think they can be canonically and theologically justified as offering the resigning clerics the opportunity to admit their faults and offer amends, without causing further harm and scandal to the Church.

From a due process perspective, the more concerning cases are that of Bishop Sullivan and Bishop Pelotte. In both cases, the bishops were suffering from health issues (dementia and traumatic brain injury) that not only called their administration into question, but their very competence. In such cases, one wonders if they were even capable of validly offering their resignations, much less whether they had sufficient understanding of the situation to be willing to do so. Interestingly, although the Code of Canon Law contains provisions for the governance of a diocese when its bishop is impeded (canons 412 and 413) and those provisions include the administration temporarily devolving upon someone of the bishop's own choosing, in both of the cases I have listed the Holy See intervened and appointed an administrator with the authority to govern despite the impeded bishop retaining possession of the diocese.

Anyone who has dealt with aging parents or grandparents understands the difficult emotions and considerations that accompany such situations, as well as the infighting that occurs as different family members struggle to accept and cope with a loved one's declining capacity. The Church is no different, and the chaos that ensued in each of these situations demonstrate exactly why there must be a way for a bishop's hierarchical superior to intervene for the good of the Church, even if in doing so questions arise as to whether such actions respect the rights of the individual bishop. Often the individual or the civil authorities designate an individual to act on behalf of the incapacitated person, even if those actions are opposed to the individual's desires at the moment. We can view the intervention of the Holy See in these cases as analogous.

But these situations also highlight the need for a means by which 'people' can make their concerns or observations known to those in positions of authority without being subjected to scorn or derision for doing so. What I struggle with, and what has not been clarified by the rescript, is the process that well-intentioned individuals can use to bring such concerns to the attention of the Holy See before they become problems of such seismic proportions. Some have suggested that the Apostolic Nuncio is the appropriate route, but I think those who advocate this approach are not always aware of the complex levels of relationships that exist within the hierarchy, nor of the nunciature's practice forwarding complaints to the bishop in question, with a request that he address the matter at the local level.

For me, this lack of accepted procedure is not a merely academic concern. I know that there have been those with close ties to the administration (and therefore with more information than the general public) who have been advocating for Archbishop Nienstedt's resignation since at least this time last year, but their methods have been largely limited to requests and entreaties to himself. And, I had to deal with the situation in a very practical way several months ago when I was contacted by Greene and Espel to provide information to the investigators hired to look into Archbishop Nienstedt's conduct. I agreed to meet with the investigators because they promised to show me letters authorizing their investigation. Yet, upon my arrival I quickly learned that while they had sufficient information to justify a contract between their firm and the Archdiocese, they were unable to provide me with any evidence that the process was authorized by anyone with the canonical authority to do so. I don't think an investigation into an Archbishop conducted by his own priests and auxiliary bishop satisfies anyone's notion of due process, nor do I imagine that the Holy See is satisfied with an investigation conducted by a civil law firm, no matter how solid its reputation.

The Church would do well to clarify how individuals may voice legitimate concerns about the conduct of those who have been declared the vicar of Christ when their governance is un-Christlike (even if through no fault of their own). The need for this type of process is not simply because 'when people do not like their bishop, they often call for the pope to fire him and appoint another', but because (as this post should make abundantly clear) at times bishops, who after all are merely human, are unable to fulfill the charge which they have been given.