A Canonical Recourse to the Sacred
Congregation for the Clergy
Father Nicholas Gruner, S.T.L.,
Mons. Antonio Forte, O.F.M.
Bishop of Avellino
For Recourse Against Respondent's decree of May 16, 1996 [Prot. 102/96], and his presumed denial of excardination to Petitioner.
RECITATION OF FACTS AND LEGAL ARGUMENTS
I. Brief Summary of the Recourse
Father Nicholas Gruner (Petitioner), who has resided in Canada since 1978, seeks recourse against the May 16, 1996 decree by Most Reverend Antonio Forte (Respondent), ordering Petitioner to return to the Diocese of Avellino, Italy in less than 30 days after an approved absence of over eighteen years ("the Forte decree"). (Attachment 1)
The Forte decree has been issued despite Petitioner's prior incardination in a benevolent Archdiocese on November 4, 1995, by formal decree of a benevolent Archbishop,1 who was and is willing to allow Petitioner to remain in Canada, where he conducts a Marian apostolate which the Archbishop strongly supports. Said apostolate, among its many other good works, funds an orphanage in the benevolent Archdiocese under the guidance of Petitioner.
The only basis for the Forte decree is the alleged "failure" of Petitioner to be incardinated in another diocese, even though he has been incardinated in the benevolent Archdiocese.
By secret correspondence and without due process of canon law, the former Prefect of this Congregation, Cardinal Sanchez, and its current Secretary, Archbishop Sepe, have attempted to "order" the benevolent Archbishop to retract his formal decree of incardination, so that Petitioner, now age 54, might be compelled to return to Avellino and live there in exile for the remainder of his life pursuant to the Forte decree-with no ministry, no salary and no provision for his old age.
Petitioner is evidently expected simply to abandon his apostolate, along with the fifty orphaned children it supports, his residence, all of his personal affairs and the innumerable other permanent attachments he acquired in Canada over a period of eighteen years without any objection by three successive bishops of Avellino, who have made it perfectly clear that Petitioner's priestly services are not required in that diocese and that he would have no useful function there. This virtual sentence of exile for life and forfeiture of all goods is in complete disregard of the express criterion of natural equity stated in Can. 271, which precludes belated recall of a cleric precisely in cases of this kind.
Petitioner appeals from the Forte decree, and justly demands under Can. 270 his right to excardination for service to the benevolent Archbishop, while not conceding that excardination is lacking or that the Bishop of Avellino retains any jurisdiction over him as a priest of the benevolent Archdiocese.
Petitioner also seeks removal from this case of the aforesaid members of this Congregation, who have involved themselves in the case by preventing Petitioner's incardination outside the Diocese of Avellino with the intent of arranging for his exile. In addition, Petitioner seeks the removal of two other members - Cardinal Laghi and Archbishop Ambrozic - who are openly adverse to Petitioner's cause and likewise cannot possibly judge impartially.
II. Facts Supporting the Recourse
The facts of the controversy are as follows:
Petitioner, Father Nicholas Gruner, S.T.L., was born May 4, 1942 in Montreal, Canada.
He was ordained in Frigento, Italy in the Diocese of Avellino, on August 22, 1976. Petitioner was ordained for the purpose of joining the Franciscan Conventual Community in Frigento, but not yet being professed in that congregation he was ordained as a diocesan priest by the Bishop of Avellino, Mons. Pasquale Venezia. Since Petitioner was unable to speak the dialect of the region of Avellino and had no prospect of a parish ministry there, it was never contemplated either by Petitioner, Bishop Venezia or the Franciscan community that Petitioner would have a canonical mission from the Diocese of Avellino.
Thus, when Petitioner decided not to complete his novitiate in the Franciscan order, Bishop Venezia gave him written permission on June 5, 1978 to live outside the Diocese of Avellino and seek incardination by another bishop ("the 1978 permission") (Attachment 2). The 1978 permission was unrestricted and unconditional; it has never been revoked, except to the extent of the Forte decree in 1996, which is hereby contested.
Petitioner's Canonically Licit Apostolate is Permitted by His Bishop for Sixteen Years.
For the next sixteen years – with the full knowledge and permission of three successive bishops of Avellino, the Archbishop of Kingston, Ontario, the Archbishop of Ottawa and the Bishop of the Diocese of St. Catharines – Petitioner served as full-time head of the National Committee for the National Pilgrim Virgin of Canada (also known as "The International Fatima Rosary Crusade"), a private lay apostolate founded under the auspices of The Most Reverend Michael Rusnak, auxiliary bishop of the Eparchy of Toronto in the Byzantine Rite ("the apostolate"). It was Bishop Rusnak himself who in 1978 insisted that a priest be appointed to the apostolate's board of directors, whereupon Petitioner was asked to serve in deference to the Bishop. In 1980, Archbishop Wilhelm of Kingston, Ontario, invited Petitioner to relocate the head office of the apostolate in his archdiocese with faculties to preach and hear confessions. Then, from 1981-1985, Petitioner conducted the apostolate in Ottawa, with faculties from Archbishop Plourde to preach and hear confessions.
Through various media, the apostolate engages in worldwide promotion of devotion to the Blessed Virgin Mary and greater awareness of Her message at Fatima especially the Consecration of Russia to the Immaculate Heart and the Third Secret, which was not disclosed as expected in 1960, to the dismay of many of the faithful. The apostolate also performs related good works, including the funding of the aforementioned orphanage, the feeding of needy children in Brazil and the massive distribution of rosaries, scapulars and Marian literature around the world.
Under the 1983 Code of Canon Law, the apostolate requires no permission of ecclesiastical authority, because its activities are perfectly consistent with the broad freedom of Christ's faithful, including priests, to form private associations for apostolic work without formal canonical erection or recognition of any kind. [Cfr. Cann. 208-223 and, in particular, Cann. 212, 215 and 216, 278, 298 and 299]. In fact, no bishop or other Church authority has ever forbidden Petitioner to engage in the work of the apostolate per se. On the contrary, some 400 bishops have signed a declaration prepared by the apostolate which proclaims their willingness to undertake the Consecration of Russia when the Holy Father requests it, while over 700 bishops, and at least ten cardinals, have written to the apostolate over the years expressing their support for Petitioner's work.
The Apostolate's Opponents Pressure Petitioner's Bishop to Silence Him
Although entirely licit under canon law, the apostolate is definitely opposed by several persons within the Vatican apparatus who disfavor petitions for the Consecration of Russia and disclosure of the Third Secret, despite the canonical right of the faithful to make such petitions to the sacred pastors, including the Pope, and their correlative right to discuss such concerns publicly with the members of the Church at large. [Cann. 212 and 215-216]
In letters dated May 29 and August 4, 1989 (Attachment 3), the Bishop of Avellino at the time, Most Reverend Gerardo Pierro, disclosed that he was under pressure from elements in the office of the Secretary of State and this Congregation to take some sort of action against Petitioner to silence him, despite the longstanding permission for him to reside in Canada and conduct his apostolic work there. Bishop Pierro had, however, already granted Petitioner a decree of excardination, dated August 4, 1989, thereby freeing him to become incardinated in any diocese which would accept him (“the excardination decree”). (Attachment 4)
In response to the pressure upon him, Bishop Pierro sent Petitioner another letter, dated November 15, 1989, which refers in garbled English to the 1978 permission to remain outside the Diocese of Avellino and seems to require that Petitioner advise the Bishop within one month whether he will return to Avellino or seek incardination elsewhere:
"In the meantime decide what you want to do: or you make you hing (sic) [an apparent reference to incardination outside of Avellino] or you come back to Avellino. I am waiting for your answer." (Attachment 5)
In order to clarify his status in view of this confusing letter, Petitioner immediately wrote to Bishop Pierro and also sent to Avellino on his behalf a fellow priest who speaks fluent Italian. This priest met with Bishop Pierro on or about December 23, 1989. During this meeting the Bishop made it clear that Petitioner was not required to return to Avellino by any certain date, but rather should find a new bishop to incardinate him. Bishop Pierro also dispatched a handwritten note to Petitioner, dated December 23, 1989, confirming that he had met with Petitioner's priestly representative and that Petitioner should find another bishop to incardinate him "as soon as possible". (Attachment 6) Said note does not require Petitioner to return to Avellino, nor does it even suggest that the November 15, 1989 letter had ordered Petitioner to return or revoked the 1978 permission to remain away, as some have erroneously claimed.
Petitioner then traveled to Avellino himself, along with the aforesaid priest, and met with Bishop Pierro on January 25, 1990. On this occasion, Bishop Pierro orally renewed the 1978 permission to remain outside the Diocese of Avellino during a dinner which the Bishop cooked himself and served to Petitioner and his representative. Bishop Pierro also admitted that he was under pressure to silence Petitioner by coercing him to return to Avellino (where he certainly was not needed) after an approved absence of over 12 years. Bishop Pierro stated as follows: "Father Gruner, to suspend you would be a mortal sin. But if the Vatican tells me to do it, I will do it."
A letter from Bishop Pierro dated April 8, 1990 evidences Petitioner's continued permission to remain in Canada, and reiterates the Bishop's wish that Petitioner find a "benevolent bishop to incardinate you." (Attachment 7) There is no reference in any of these subsequent letters to any requirement that Petitioner return to Avellino. To the contrary, on April 8, 1990 Bishop Pierro issued to Petitioner a certificate attesting to the fact that Petitioner is a priest in good standing with all of the faculties inherent to the sacred priesthood (Attachment 8), which he would hardly agree to do for a priest who was illegally absent from his diocese contrary to his orders. Petitioner requested this certificate precisely to demonstrate to public critics of the apostolate that he was a priest in good standing who had continuing permission to be outside his diocese.
After Petitioner publicized the certificate to defend his priestly reputation against public attacks, Bishop Pierro, again acting under pressure, sent Petitioner a letter, dated July 18, 1990, requesting that the certificate be returned and stating that "I revoke all of your faculties." However, Petitioner never had any faculties in the Diocese of Avellino in the first place because of his lack of fluency in Italian, although he could preach sermons if they were entirely written out in Italian in advance. This lack of fluency also precluded faculties for hearing confession, because Bishop Venezia insisted that Petitioner master the local dialect before dealing with penitents in the confessional2. It must be noted that even the July 18 letter does not order Petitioner to return to Avellino, or revoke his permission to be outside of the Diocese. Rather, it continues to urge him to find another bishop.
Petitioner's Efforts at Incardination Are All Blocked by Vatican Opponents
In the years leading up to the Forte decree, Petitioner diligently pursued incardination in a number of dioceses, only to see every offer of incardination suddenly withdrawn after improper interventions by certain members of the Vatican apparatus, as more particularly described below.
(a) Efforts in Canada
From 1981 to 1989, the Nuncio to Canada, Mons. Angelo Palmas, consistently interfered with Petitioner's efforts to find a benevolent Canadian bishop, including Bishop Morin, whose offer of incardination was withdrawn at the instance of Palmas.
In the Summer of 1981 Petitioner went to the expense of traveling to the offices of this Congregation in Rome to inquire about this untoward interference in his priestly rights. He was informed by Mons. Usai that it was the Nuncio, not the Congregation, who was going out of his way to obstruct Petitioner's efforts to be incardinated. On the same trip Petitioner met with then Bishop of Avellino, Bishop Venezia, who advised Petitioner that it was "the Nuncio" (meaning Palmas) who was preventing any effort to forge an agreement between Venezia and a Canadian bishop for Father Gruner to conduct his apostolate while assigned to Canada. Later interference in Petitioner's attempts to be incardinated by non-Canadian bishops came from within this Congregation itself, as discussed below.
(b) Efforts Outside of Canada
On July 31, 1993, Most Reverend Gilbert Rego, Bishop of the Diocese of Simla-Chandigarh, wrote to the Bishop of Avellino to request that Petitioner be excardinated since he intended to incardinate Petitioner in his Diocese, the Bishop being a supporter of Petitioner's apostolic work. (Attachment 9) On October 28, 1993, however, Rego wrote to Petitioner, admitting that he had been advised by the papal nuncio to India not to incardinate Petitioner in his diocese. Since canon law does not provide for any recourse against a bishop's refusal to incardinate a priest from another diocese, there was nothing Petitioner could do.
On November 3, 1993, Respondent wrote to Petitioner admitting that he could not yet grant Petitioner excardination from the Diocese of Avellino because the Congregation [i.e. Sepe and Sanchez] had "put me in the condition of not being able to act", and that Mons. Sepe would be issuing "instructions" in the matter. (Attachment 10) In other words, Respondent's right to excardinate a priest of his own diocese was being usurped by members of this Congregation. [As noted above, however, Petitioner had already received a decree of excardination from Bishop Forte's predecessor, Bishop Pierro, dated August 4, 1989.]
On January 13, 1994 Petitioner and his witness met with Respondent in Avellino to discuss the constant interference in his efforts to obey Respondent's own request that he find another bishop. Respondent admitted that he had nothing against Petitioner and no complaints about him in his files, and that the only reason excardination was not yet forthcoming was the intervention of Mons. Sepe and Cardinal Sanchez who had no authority to dictate to a Bishop whom he may excardinate.
His Incardination Blocked at Every Turn,
Petitioner is Finally Recalled to Avellino
On January 31, 1994 the Respondent, acting under pressure from Mons. Sepe and Cardinal Sanchez, sent Petitioner a letter [mistakenly dated January 31, 1993] ordering Petitioner to return to Avellino within 30 days to take up permanent residence there, abandoning the work in which he had been engaged for the past 16 years with the permission of three successive bishops of Avellino ("the order to return"). (Attachment 11) Contradicting his statement on January 13, 1994 that there was "nothing against" Petitioner, this letter alludes vaguely to "copious files" containing unspecified complaints about Petitioner which to this day have never been produced. The only specified canonical ground given for the order to return was Petitioner's "failure" to become incardinated in another diocese – the very thing Petitioner had been unjustly prevented from doing by those who were pressuring his bishop to recall him. This order was promptly appealed to this Congregation, as discussed below.
Soon after the order to return was issued, however, Petitioner received yet another offer of incardination – from the Most. Rev. Manoel Pestana of the Diocese of Annapolis, which states that "Your incardination has been accepted for the 16th of July (1994)." (Attachment 19) But again the direct intervention of Cardinal Sanchez and Mons. Sepe caused Most Rev. Pestana to withdraw his support, citing "the decisions of the Congregation" in a letter to Petitioner dated November 10, 1994. (Attachment 20)
All of these interventions in Petitioner's good faith efforts to find a benevolent bishop were contrary to the prerogatives of the bishops involved and outside the proper channels of canonical procedure as well as a fundamental injustice to Petitioner, who was diligently attempting to comply with the very order he is now accused of "disobeying".
Petitioner Appeals the Order to Return
On March 27, 1994, Petitioner sought recourse against the order to return before this Congregation. On April 18, 1994 the appeal was rejected in a Decree (Attachment 12) issued by the former Prefect and the Secretary – the very members of the Congregation who had caused the case to come before themselves by preventing Petitioner from being incardinated outside the Diocese of Avellino. Thus, it appears that Petitioner's case before the Congregation was judged by members whose own actions had made them adverse parties in the very case they were judging.
On June 7, 1994 Petitioner appealed the Congregation's decision to the Apostolic Signatura.
The Signatura's Purported Decision
On May 15, 1995, a purported decision of a committee of the Apostolic Signatura (Attachment 13) declined to admit Petitioner's case to the judges of the Court on grounds that the order to return was not in the nature of an appealable penalty, and that "there is just cause in recalling [Petitioner] to his proper diocese, since he, after so many years, has not yet been incardinated in another diocese."
Thus, even the purported decree of the Signatura recognizes that Petitioner's alleged "failure" to be incardinated outside of Avellino was the only reason given to justify his forced return to that diocese after an approved absence of more than 18 years.
The purported decree contains manifest and grave errors of fact, including the following:
- "Rev. Gruner thereafter for years – de facto independently of any diocesan Bishop – conducted his own private apostolate ... [which] has not received any canonical recognition."
As shown above, under Cann. 212, 215, 271, 298, 299 and many others, Petitioner has every right to conduct a private apostolate which his bishop never forbade him to conduct. In fact, Petitioner had tacit or explicit permission from three Bishops of Avellino, the Archbishop of Ottawa, the Archbishop of Kingston, the Auxiliary Bishop of the Eparchy of Toronto, and the Bishop of St. Catharines to engage in the apostolate. The statement that Petitioner was acting in "de facto independence" from a bishop is completely meaningless and without any canonical import whatsoever – not to mention utterly false.
- "The same Congregation, by its letter of 14 July 1989, formally and canonically admonished on account of his disobedience to the precept given by the Apostolic See, and in vain commanded him either to be incardinated in the Dominion of Canada or return to the Diocese of Avellino before 30 September 1989."
There was no "precept" given by the Apostolic See "commanding" Petitioner to return to Avellino, but only an ultra vires personal intervention by Cardinal Innocenti, then Prefect of the Congregation for the Clergy. Card. Innocenti had no jurisdiction in the matter, which was not even before the Congregation at that time.
After Petitioner objected to this ultra vires intervention in a letter to Card. Innocenti, the Cardinal took no steps to enforce his "command", which clearly had no force or effect. Further, this "command" to return to Avellino was based on the falsehood that Petitioner has refused a "command" of the Canadian nuncio, Mons. Angelo Palmas, to appear before him, when in fact the Mons. Palmas admitted that he had merely invited and not commanded Petitioner to make an appointment with him. This admission by Mons. Palmas was tape-recorded.
- "His Excellence the Bishop of Avellino, by letter on 15th November 1989, revoked the permission granted by his Predecessor that Rev. Gruner be allowed to reside outside his diocese."
As already shown, the permission to reside outside the Diocese was not revoked but renewed by the Bishop of Avellino in the presence of a witness, and confirmed by his subsequent correspondence. Petitioner was never ordered to return to Avellino until the 1994 order to return, issued by Respondent.
- "Rev. Gruner did not contest the revocation of faculties." [by the letter from Bishop Pierro dated July 18, 1990]
In truth, there were no faculties to revoke in the Diocese of Avellino, other than a faculty granted by Bishop Venezia in 1978 to preach written sermons, as already noted, which faculty Petitioner had never wished to exercise in the first place because it was obvious he would never have any canonical mission in that diocese due to the language barrier. Thus, there was nothing for Petitioner to contest, because no action was ever taken to revoke his inherent priestly faculties by a penal process. Indeed, this same purported document of the Signatura notes that "imposition of a penalty ... has not yet taken place" in Petitioner's case.
- "Rev. Gruner did not context ... the refused incardination." [by Bishop Rego]
In truth, canon law does not permit any recourse to a "refused incardination" where the incardination has never been accomplished but only offered, and then withdrawn. There was nothing to contest.
In any event, these supposed findings of "fact" by the committee of the Signatura are mere obiter dicta, because the purported decision itself states that there would be no definitive fact-finding, or indeed any hearing at all, because the case would not even be heard.
Yet Another Incardination is Interfered With
On November 4, 1995, some six months after the purported refusal of the Signatura to hear the case, Petitioner was incardinated in the benevolent Archdiocese by a benevolent Archbishop by formal decree of that date, as noted above (Attachment 14). The decree states that "Evil forces have conspired to destroy your work of love."
The Archbishop personally presented the decree to Petitioner at St. Mary's Church in the benevolent Archdiocese, during a visit by Petitioner to promote his apostolic work in the Archdiocese, including the orphanage. At the Archbishop's request, Petitioner supplied him later with the aforementioned excardination decree issued by Respondent's predecessor, thereby completing the requirements for Petitioner's incardination in the benevolent Archdiocese.
The benevolent Archbishop is at least the third benevolent bishop to offer protection to Father Gruner since 1992. The interference with this incardination by the aforesaid members of the Congregation was even more egregious than in the cases of Bishops Morin, Rego and Pestana. In this case, Petitioner has been reliably informed that Cardinal Sanchez and Mons. Sepe actually advised the Archbishop in a privately dispatched letter not to incardinate Petitioner, even though the Archbishop has already issued the formal decree of incardination and received a decree of excardination. Without any real authority to do so, they have literally "ordered" an Archbishop to ignore his lawful incardination of a priest who is otherwise welcome in his diocese and who has no impediments to the exercise of his sacred priesthood. The actions of these members of the Congregation are totally inconsistent with its obligation under the Apostolic Constitution Pastor Bonus to serve as an impartial arbiter of the rights of clergy [Art. 95 §1]. Their actions have made them adversaries of the very priest whose rights this Congregation is supposed to uphold and defend. Moreover, said actions are hardly consistent with Art. 95, §2 of Pastor Bonus, which provides that the Congregation is to work with bishops, not against them, to ensure adequate distribution of clergy to undeveloped regions like the benevolent Archdiocese, where Petitioner's apostolate funds an orphanage and spreads devotion to Our Lady by way of pilgrimages which have stirred up Marian devotion in many souls.
Despite the enormous pressure being applied to the benevolent Archbishop by members of this Congregation, the decree of incardination has never actually been revoked by any competent subsequent decree of the Archbishop [Can. 54, §2], and such a decree could not be issued in any event without a penal process to expel Petitioner from the Archdiocese on the basis of some grave canonical offense. There has been no such process, and no such offense.
In sum, Petitioner is unaware of any other priest in the history of the Church whose transfer to a new diocese was systematically thwarted in this manner by members of the Congregation of the Clergy where there were no legitimate canonical impediments to the transfer of the priest.
Since the beginning of 1996, when we promised to hold The Fatima Crusader's Third Fatima Peace Conference, the same few Vatican bureaucrats stepped up their war against Father Gruner in their vain attempt to stop our Rome Conference. Pictured above, is one of the sessions of our Conference in Fatima. Any lie and tactic is considered legitimate when opposing these conferences. Apparently, if there is anything these bureaucrats fear, it is a gathering of Catholic Bishops to hear the full truth about Fatima.
Respondent's Decree Is Issued
On January 26, 1996 Respondent "admonished" Petitioner to return to Avellino pursuant to the January 31, 1994 order to return (Attachment 15), citing as the only grounds for the order Petitioner's failure to become incardinated in another diocese – which incardination has been systematically prevented by members of this Congregation in the manner described above.
On February 3, 1996 (Attachment 16) Petitioner wrote to Respondent to advise him that he had been incardinated by another bishop and to request a formal decree of excardination, if it were necessary. Fearing precisely what has happened in this case – coercion of the benevolent Archbishop – Petitioner did not disclose the name of his new bishop in the February 3 letter. The February 3 letter also formally demands Petitioner's right to excardination under the circumstances, pursuant to Can. 270. No reply was given to this letter.
On February 23, 1996 Petitioner again wrote to Respondent (Attachment 17), providing him with a copy of the decree of incardination by the benevolent Archbishop, and a copy of the prior excardination decree, which he had recovered from his files. The February 23, 1996 letter asserts for the second time Petitioner's right to excardination under Canon 270.
On or about March 14, 1996 the excardination decree was formally delivered to the benevolent Archbishop, as noted above, thereby obviating any possible technical objection to Petitioner's incardination in the benevolent Archdiocese.
On May 16, 1996 Respondent responded to Petitioner's letter of February 23, 1996 by issuing the Forte decree (Attachment 1). The Forte decree recites the purported refusal of the Signatura to hear the appeal from the original January 31, 1994 order to return. It also states (without any factual basis) that the subsequent incardination in the benevolent Archdiocese is 'non-existent" because Petitioner is "deprived of possession of" a decree of excardination and is not "set free" to be incardinated elsewhere. The decree orders Petitioner to return to Avellino to take up residence by June 15, 1996 or he will be suspended from "all of the acts specified in Can. 1333, §1 and 1.2 (sic)".
According to the Forte decree, Petitioner is apparently expected to (a) simply forget his incardination in the benevolent Archdiocese by the benevolent Archbishop who fully supports his ministry; (b) leave behind the apostolate, its 100 employees, the orphanage it funds in India and the children it feeds in Brazil; (c) abandon the home and real estate where he has lived without diocesan support since 1978; (d) leave all of his personal affairs in disarray; and (e) return to Avellino entirely at his own expense to live as a virtual prisoner for the rest of his life in a diocese which has no need of his services and which has never provided for his support.
It must be noted again that at no time in this entire process did any of the aforementioned Bishops or Archbishops of Avellino, Kingston, Ottawa and St. Catharines forbid Petitioner to engage in the work of the apostolate, whose existence and activities are entirely licit and beyond canonical reproach. Rather, this entire process has involved a concerted effort to silence the apostolate through indirection by coercing Petitioner to return to the Diocese of Avellino, after making it impossible for him to be incardinated elsewhere. This effort has extended even to the extreme of direct intervention by supposedly impartial members of this Congregation, who have attempted to intimidate the benevolent Archbishop into disregarding his own formal decree incardinating Petitioner in his Archdiocese, and to disregard a formal decree of excardination from the ordinary of Avellino.
By letter of May 31. 1996 (Attachment 18) Petitioner petitioned Respondent to revoke his May 16 decree based on the facts discussed above. There having been no response to that petition, the within recourse is hereby proposed.
III. Canonical Grounds for the Recourse
A. Respondent lacked jurisdiction to issue the decree sub judicebecause Petitioner had already been validly incardinated in the benevolent Archdiocese.
On November 4, 1995 the benevolent Archbishop issued a decree formally incardinating Petitioner in the benevolent Archdiocese, and the Archbishop was provided with the prior decree of excardination issued by Respondent's predecessor, Bishop Pierro.
The decree of excardination did not cease to operate when Bishop Pierro left office because it was not granted with the provision beneplacitum nostrum or some equivalent terminology and it therefore survived the termination of Bishop Pierro's authority. [Cann. 46, 81] Moreover, as a privilege, the decree/rescript of excardination is presumed to be perpetual in duration unless the contrary has been proved, which it has not, or the privilege has been revoked, which it has not. [Cann. 78, 79 and 47]
The decree of excardination granted by Bishop Pierro would not have ceased to operate unless it had been revoked by a subsequent decree. [Cann. 58, 79] There was no such revocation by either Bishop Pierro or the Respondent, and the decree of excardination was therefore still operative when Petitioner was incardinated in the benevolent Archdiocese by the formal decree of its Archbishop.
Thus, all requirements for Petitioner's incardination in the benevolent Archdiocese were satisfied before the Forte decree was issued. [Cann. 265, 267] The Forte decree was, therefore, void for lack of jurisdiction over Petitioner, who was no longer a priest of the Diocese of Avellino on the date it was issued. Respondent's claim in the decree sub judice that the incardination in the benevolent Archdiocese was "non-existent" is a mere ipse dixit without factual or canonical support.
Furthermore, although the benevolent Archbishop has since been subjected to coercion to revoke his formal decree of incardination, said decree has never been revoked by a legitimate subsequent decree and therefore still stands. [Cann. 58, 79]
Nor could Petitioner's incardination in the benevolent Archdiocese be revoked in the first place without a penal process against him, since the deprivation of an already-granted incardination would be in the nature of a penalty which cannot be imposed without a judicial or administrative procedure based upon a specific offense alleged to have been committed by Petitioner. [Cann. 1341, 1342, et seq. Can. 271 §3] There has been no such penal process nor any specific canonical offense alleged against Petitioner at any time in this entire controversy.
Therefore, the incardination has not been revoked, and Petitioner remains a priest of the benevolent Archdiocese, no longer subject to Respondent's authority.
B. Even if Petitioner were not already incardinated in the benevolent Archdiocese, Respondent has wrongfully refused excardination to Petitioner without any serious reason.
Assuming arguendo that petitioner were not already incardinated in the benevolent Archdiocese, on the facts of this case he would clearly be entitled to a decree of excardination from Respondent so that his incardination in the benevolent Archdiocese could be perfected.
Can. 270 provides that excardination "cannot be denied except for serious reasons" and that a cleric "who thinks he has been wronged [by a denial of excardination] and who has found a bishop to accept him may have recourse against the decision." This Canon recognizes that priests, especially secular priests, are not yoked to their bishops like oxen to a plow, but rather are human beings who are entitled to natural equity and fair treatment.
[B]y accepting incardination a priest does not surrender all his human rights." Canon Law Society of America, Commentary to Canon 270.
Petitioner has indeed "found a bishop to accept him" as provided in Canon 270; in fact he has found three bishops to accept him. The last of these has gone so far as to issue a formal decree of incardination to Petitioner, which members of this Congregation have pressured him to revoke. Each of these three bishops supports Petitioner's apostolic work, believing that it is of benefit to the Church.
Under these circumstances, excardination could not be refused to Petitioner under Canon 270 without a "serious reason." In the decree sub judice Respondent has given no reason, let alone a serious reason, to refuse excardination. The decree merely asserts that Petitioner is not "set free" to be incardinated elsewhere, that he is "now deprived of possession of the legitimate document of excardination", and that "the rescript of incardination by the benevolent Archbishop is non-existent". In other words, Respondent arbitrarily refuses to grant excardination, feeling no obligation to give a reason.
It is beyond dispute that the only reason Petitioner has ever been given for being recalled to Avellino is his supposed "failure" to find another bishop. Neither the January 31, 1994 order to return nor the Forte decree sub judice cites any canonical offense by Petitioner which would justify his forced return to Avellino.
If, then, the alleged "failure" to find another bishop is the only reason ever given for the recall to Avellino, it would be a mockery of justice to require Petitioner to return to Avellino when he manifestly has found another bishop – especially when that bishop has already issued a formal decree of incardination.
The decree of incardination issued by the benevolent Archbishop removes the only grounds for recall of Petitioner to the Diocese of Avellino, even assuming that Respondent still has jurisdiction over Petitioner, which he does not. Suppression of the apostolate by those who oppose it does not constitute a "serious reason" because there is no dispute that the activities of the apostolate are canonically permissible [Cann. 212, 215, 216, 278, 298 and 299; and, generally, Cann. 208-223]3, and Petitioner has never been forbidden to engage in the activities of the apostolate per se, let alone subjected to any canonical penalty on account of those activities.
From 1978 until 1996 Petitioner served as full-time head of the apostolate with the knowledge and tacit permission of three successive bishops of Avellino. As a result, Petitioner has built his entire priestly life around the apostolate, making his permanent home and establishing irrevocable ties in Canada. The fruits of his apostolic work include an orphanage in the very Archdiocese where Petitioner is now incardinated by formal decree of a benevolent Archbishop. In fact, no fewer than three benevolent bishops have offered to incardinate Petitioner and allow him to remain in the field of action he has chosen as best suited to his unique endowments.
If Canon 270 means anything at all, the excardination requested in Petitioner's letters to Respondent of February 3, and February 23, 1996 cannot be refused. There is simply no reason to refuse excardination, other than an inadmissible intent to suppress the apostolate by subjecting Respondent to virtual life imprisonment in Avellino.
Therefore, Petitioner would be entitled to a decree of excardination in favor of the benevolent Archbishop even if Petitioner were not already incardinated in that Archdiocese, which in fact he is.
C. Even if Petitioner were still under the jurisdiction of Respondent, the absence of just cause and the dictates of natural equity preclude recall of Petitioner to Avellino after an approved absence of nearly 20 years.
Can. 271, §(3) provides that:
"A cleric who has legitimately moved to another particular church while remaining incardinated in his own church can for a just cause be recalled by his own diocesan bishop, provided agreements made with the other bishop and natural equity [naturalis aequitas] are observed ..."
Even if Petitioner were not now incardinated in the benevolent Archdiocese, the cited canon would preclude his recall to Avellino after an approved absence of nearly 20 years.
First, there can be no question that Petitioner legitimately moved to another diocese pursuant to this canon – he was given written permission to do so.
Second, there is no just cause for recalling Petitioner today. The only cause ever given was Petitioner's supposed failure to find another bishop, when in fact Petitioner has not only found another bishop, but has received a formal decree of incardination from him.
Finally, under the cited Canon natural equity must be observed in ordering a recall. Natural equity precludes recalling Petitioner to a distant diocese and forcing him to abandon his life's work – undertaken with the tacit approval of three successive bishops of Avellino and the express permission of the Bishop of St. Catharines – his dwelling place and all of his personal affairs built up over the past 18 years. Moreover, Petitioner is entitled to continue to seek civil redress for public libels issued against him in 1990, throughout the United States and Canada, and in 1996 in a magazine with a circulation of over 100,000. If Petitioner were forced to return to Avellino and abandon those civil proceedings, the impression would be given that the libelous statements against him must be true.
The decree sub judice, if allowed to stand, would amount to a sentence of lifetime exile and forfeiture of property; a sentence so harsh as to be almost beyond belief for the "offense" of “failing” to find another bishop when one has in fact been found.
To recall Petitioner to the Diocese of Avellino after he has been allowed to build his entire life and ministry in another country would be a mockery of the terms “just cause” and “natural equity”, and an immense cruelty to Petitioner. Surely no impartial member of this Congregation can countenance such incredibly harsh penal action against a priest who has never been charged with any substantive canonical offense whatsoever, and whose moral character is above reproach.
D. Even if the decree sub judice were not void for lack of jurisdiction, it is premature since Petitioner has never been served with a copy of the prior purported decision of the Signatura, dated May 15, 1995, on which Respondent relied in issuing the decree sub judice.
The decree sub judice was issued after Respondent's original order to return of January 31, 1994 was purportedly affirmed by a committee of the Signatura in the decision of May 15, 1995 referred to in the decree sub judice. In recalling Petitioner to Avellino under penalty of suspension, the decree sub judice expressly relies upon the Signatura's purported refusal to hear the case.
However, although unofficial copies of the purported decision (containing the aforedescribed manifest grave errors of fact) have been widely circulated by detractors of the apostolate, Petitioner himself has never been served with a copy of the purported decision of the Signatura “through authority of its issuer”. Accordingly, it has yet to become effective as to him, nor has the time to appeal from it to the full Signatura or the Supreme Pontiff begun to run. [Cann. 54 §1 and 2; 56 and 1634 §2]
Since the decree sub judice proceeds from the mistaken impression of the Respondent that the purported "decision" of the Signatura has become effective by valid promulgation to Petitioner, and since the decree sub judice is juridically based upon the purported decision of the Signatura, on which it relies for its efficacy, the decree sub judice has been issued prematurely.
This matter should be returned to the status quo which existed before the decree sub judice was issued, so that Petitioner may be validly serve with the purported decision of the Signatura (if it truly exists) and have the opportunity to appeal it to the full Signatura or the Supreme Pontiff in accordance with his dogmatically defined right to do so. [Second Council of Lyons 1274 and First Vatican Council].
E. Even if the decree sub judice were not void for lack of jurisdiction, Petitioner is not liable to any penalty for failing to abide by the decree since he is acting out of necessity and to avoid grave inconvenience.
The Code of Canon Law promulgated by His Holiness John Paul II recognizes the basic norm of ecclesiastical justice that no one can be liable to a penalty for failing to follow a law or precept (whether individual or general) if he is compelled to disobey it by reason of necessity or even grave inconvenience:
"Can. 1323 No one is liable to a penalty who, when violating a law or precept:...
(4) acted ... by reason of necessity or grave inconvenience, unless, however, the act is intrinsically evil or tends to be harmful to souls ..."
Under the terms of this Canon, Petitioner is clearly not liable to any penalty for failing to comply with the Forte decree, since compliance would pose a grave inconvenience, to say the least: After an approved absence of over 18 years from a Diocese in which he never had a canonical mission in the first place, Petitioner has been ordered, under penalty of suspension, to abandon immediately the apostolate to which he has devoted his entire priestly life – an apostolate which supports an orphanage having the care of fifty children and feeds many others; to desert his residence and leave all his personal affairs in disarray; to sever all of his other permanent ties with Canada, his home country; and return to Avellino, Italy, to live out his life in a diocese where he has no ministry and cannot even speak the local dialect.
If these facts do not constitute "grave inconvenience", it is hard to imagine what would. It is physically and morally impossible for petitioner to comply with such an immensely unjust decree. This is all the more so given that Petitioner has found a benevolent Archbishop who wishes to incardinate him and foster his ministry, rather than destroying his life's work and forcing him into permanent exile.
Indeed, in remaining in Canada Petitioner is acting out of the necessity envisioned by Canon 1323, and not merely to avoid the grave inconvenience which in itself would excuse or negate any penalty for his actions.
In the first place, the message of Fatima is of vital importance to the Church in these times, and there is no other organized ministry in the Church which provides the essential work of promoting the full Fatima message. Secondly, on a practical level, over 100 employees, dozens of orphans and many others depend upon Petitioner's apostolate for their daily sustenance. It is strictly necessary that Petitioner continue his apostolic work.
By remaining in Canada, Petitioner has committed no act which is "intrinsically evil or tends to be harmful to souls." On the contrary, Our Lady of Fatima promised, "If my requests are heeded, many souls will be saved and there will be peace." But how can all Her requests be heeded if they are not continuously published, especially that part of the message which is today "out of season", as St. Paul observed regarding the unpopularity of the Gospel at certain times?
Given the indisputable facts of this case, Petitioner is clearly entitled to the immunity afforded by Canon 1323. Accordingly, Petitioner is not liable to any penalty for failing to return to the Diocese of Avellino. On the contrary, the Congregation must, in justice, recognize the evil which would attend compliance with the Forte decree and should declare Petitioner's right to remain in his home country.
F. The members of this Congregation who have interfered with Petitioner's attempts to be incardinated by a benevolent bishop must recuse themselves from judging this case.
It is a fundamental norm of justice that no one can be the judge of a case in which he is involved. It is equally fundamental that no one can judge a case involving a party toward which he has exhibited "great hostility". [Can. 1448 §1.] Moreover, if a judge has already judged the case unfavorably toward a party, he cannot continue to sit in judgment on that party's rights if the case comes before him again. [Can. 1447]
The former Prefect of the Congregation and its current Secretary have involved themselves in this controversy by systematically impeding Petitioner's incardination in another diocese, and then sat in judgement of Petitioner's alleged "failure" to find another bishop. Their very actions led to Respondent's order to return of January 31, 1994, which order they upheld by their own Decree of April 18, 1994, thereby validating their own untoward interference in Petitioner's priestly right to excardination in favor of a benevolent bishop.
This intolerable situation, in which Petitioner's avowed adversaries and public detractors sit in judgment on his case, cannot in justice be allowed to persist during this recourse. To the extent that the former Prefect and the current Secretary of the Congregation would be involved in judging this case, as judge, consulter, assessor, auditor or promoter of justice, they must recuse themselves on grounds of bias, self-interest and extreme hostility.
Likewise, Petitioner respectfully requests the recusal of His Eminence Cardinal Pio Laghi, who circulated a statement highly critical of Petitioner which was disseminated to all of the bishops of the United States when he was Papal Nuncio in 1987, and Mons. Aloysius Ambrozic, Archbishop of Toronto, who is an adverse witness against Petitioner in civil proceedings Petitioner initiated to redress certain libelous communications issued by the Judicial Vicar of that Archdiocese throughout Canada and in the United States. Neither of these members of the Congregation could be expected to judge this recourse as impartial arbiters.
If the said persons do not recuse themselves from this matter, Respondent asks that they be removed pursuant to his objection under Can. 1449, which is hereby lodged.
After reading in this article the cynical abuse of power by certain Vatican bureaucrats in blocking obedience to Jesus' command to consecrate Russia, it is easy to see why the chastisement of Louis XVI awaits them.
IV. Prayer for Relief
Based upon all of the foregoing facts and legal arguments, and the documents submitted, Petitioner hereby prays for the following relief:
(a) Revocation of the decree of Respondent, dated May 16, 1996, on grounds that it lacks jurisdiction and is void, because Petitioner was validly incardinated in the benevolent Archdiocese on the date said decree was issued;
(b) In the alternative, a decree of this Congregation directing Respondent to grant the excardination of Petitioner in favor of the benevolent Archbishop, and declaring that the correlative decree of incardination by said Archbishop is valid and effectual;
(c) In the alternative, revocation of the decree sub judice on grounds that the lack of just cause and the requirements of natural equity preclude recall of Petitioner to the Diocese of Avellino;
(d) In the alternative, a declaration that owing to necessity and grave inconvenience, Petitioner is not liable to any penalty for failure to comply with the decree sub judice;
(d) In the alternative, revocation of the decree sub judice on grounds that it is premature due to failure to promulgate to Petitioner the purported decision of the Signatura which forms the procedural predicate for the decree sub judice;
(e) Recusal from the judgment of this matter of the persons identified.
Respectfully submitted this 18th day of July 1996.
1. Charity to the Archbishop compels us not to publicize his name. We do not wish his Excellency even greater difficulties than he has already encountered at the hands of those who are determined to bring an end to this apostolate.
2. It must be noted that neither Bishop Pierro nor his successor, the Respondent, had ever instituted a penal process against Petitioner or imposed any canonical penalty upon him whatsoever. Indeed, it was not until the Forte decree of May 16, 1996 that Petitioner was first threatened with the penalty of suspension from his inherent clerical state if he did not return to Avellino in 29 days, which is the matter now sub judice. This fact is acknowledged in a purported decree of the Signatura, dated May 15, 1995, discussed below. Said decree has never been served upon Petitioner, although opponents of the apostolate have obtained alleged "copies" which they are circulating publicly.
3. Can. 278, §1 specifically recognizes that "secular priests have the right of association with others for the achievement of purposes befitting the clerical state". This includes the right to establish associations, provided only that a priest "refrain from establishing or joining associations whose purpose and activity cannot be reconciled with the obligations proper to the clerical state, or which can hinder the fulfillment of the office entrusted to them by the competent ecclesiastical authority." [Can. 278, §3] Petitioner's Marian apostolate, which no fewer than three bishops have wished to support, and which some 1500 bishops and 70 cardinals have viewed approvingly, is obviously consistent with his priestly obligations. Nor has any competent ecclesiastical authority ever given Petitioner an office whose fulfillment would be hindered by the apostolate. On the contrary, Respondent has never given any canonical mission whatsoever to Petitioner, whose priestly services have never been needed in the Diocese of Avellino – as all three of said bishops have admitted.