Standing to Sue

by Duane L.C.M. Galles, J.D., J.C.L.

[Editor's Note. The Saint Joseph Foundation has assisted in the preparation of hundreds of formal and informal canonical appeals. Our clients often assume that the merits of their case will insure a speedy and favorable outcome. However, unless they happen to be lawyers or have extensive knowledge of the law, we have to explain that the appeal must show that they have what is called "standing." Without it, the case will be lost no matter what its merits may be. The following article was part of the author's dissertation for the degree of Doctor of Canon Law. Although most of the canonical issues mentioned involve property, especially church buildings, the principles would apply equally to other matters. I hope that the article will illustrate to our readers some of the complexities involved in a canonical appeal. Obviously, it is not necessary that our readers and clients understand such technicalities. The important point is that your prayers and sacrifices have built an organization that does understand them and is able to help faithful Catholics. CMW]

CAN. 1400 §1. The object of a trial is:

1º the pursuit or vindication of the rights of physical or juridic persons, or the declaration of juridic facts;

2º the imposition or declaration of a penalty for delicts.

§2. Nevertheless, controversies arising from an act of administrative power can be brought only before the superior or an administrative tribunal.

CAN. 1737 §1. A person who claims to have been aggrieved by a decree can make recourse for any just reason to the hierarchical superior of the one who issued the decree. The recourse can be proposed before the author of the decree who must transmit it immediately to the competent hierarchical superior.

A decade ago in these pages we briefly explained the Church's system of administrative justice. Whenever the Saint Joseph Foundation assists a client in preparing a formal appeal, it is in the administrative forum rather than the judicial forum where the case is almost always heard. Thus, canon 1737 says that one who feels injured by an administrative decree may have recourse to the hierarchical superior of the author of the offending decree who may then, according to canon 1739, confirm, invalidate, revoke, rescind or amend the offending decree.

From the Middle Ages on until the beginning of the twentieth century there was in the Church a system of administrative or "extra-judicial" appeals. One appealed to one's bishop against acts of his subjects and from the bishop one appealed to his metropolitan or archbishop. In those countries, like France, Hungary and Poland, where there was a primate at Lyons, Estergom or Gneisen, one appealed from the metropolitan to the primate. From the decree of the primate (or, in his absence, the archbishop) one appealed to Rome, from which there was no further appeal.

At the turn of the twentieth century this venerable church appellate system was set aside and the secular administrative appeal system developed by France after the French Revolution was put in its place. This system sees public law as radically distinct from private law and so provides separate and distinct tribunals for cases between private parties and for cases involving a public authority. Cases of the first type — those between private parties — are referred to the judicial system and here appeals generally go like the old extra-judicial appeals in the Church from the court of the bishop to the metropolitan and from the metropolitan to the Roman Rota.

In the case of an administrative appeal the route is different. The French Revolutionaries considered judges reactionaries and so they did not wish to have them rule on cases in which a public authority was a party. Hence, the courts were forbidden to hear such cases. Eventually a separate system of administrative appeals was developed with the French Conseil d'Etat or Council of State sitting as the administrative tribunal of last resort. This French system was widely imitated by other countries in the civil law or Roman law world and so in 1908, in the course of reforming the Roman Curia, Pope Pius X adopted this system for the Catholic Church. Henceforth, the Roman Rota was forbidden to hear administrative appeals from decisions of bishops. Instead recourse was to be had to the Roman congregation of cardinals with jurisdiction over the subject matter of the dispute. In practice the decision of the congregation was final.

In 1967 by his curial reform Constitution, Regimini ecclesiae unversalis, the Francophile Pope Paul VI saw to it that the Continental system was completed with the creation of the sectio altera or second section within the Apostolic Signatura. Modeled on the French Council of State, which sits at the head of the French public law administrative appellate system, it was to serve as the supreme (indeed sole) administrative tribunal of the Church and hear administrative appeals from decrees of the Roman dicasteries.

In general, in order to be a party to litigation one must be a legal person under the law of the forum. Thus, one must be either a natural person or enjoy legal personality in the manner of a corporation. Canon 113 tells us that besides physical persons there are also in the Church juridical persons or legal entities. Canon 115 tells us that juridical persons may be formed of universitates rerum (aggregates of things) as well as universitates personarum (aggregates of persons). There are many examples of aggregates or bodies of things, which were transformed into juridical persons. Church buildings, for example, were thought to acquire juridical personality upon blessing or consecration, and the endowment or benefice set aside for the support of the parish priest was also accorded fictive legal personality. Thus, in most parishes there were two bodies of things which canon law treated as legal persons.

Generally as well, in order to maintain an administrative appeal one must have besides juridical personality a legal interest in the subject of the litigation. This interest in Anglo-American law is often called legal "standing," which can be a difficult question in both the secular and ecclesiastical legal systems. For example, one Australian judge, Justice Murphy, has noted that questions of standing are often brushed aside if a court considers that the issue of substance should in the public interest be settled, but tend to loom large if the issue, which the plaintiff seeks to have litigated, is awkward because it questions dominant social institutions or relationships.¹ Thus, in Australian Conservation Foundation Incorporated v. Commonwealth of Australia, the Foundation, which sought to prevent mining of a site of special cultural interest, was denied standing by an Australian court following American standing rules on the ground that it possessed no special interest above and beyond that of the public in general.² However, in United States v. Students Challenging Regulatory Agency Procedures (SCRAP), where the litigant was an unincorporated association composed of five students, the United States Supreme Court seemed to relax the requirements for standing and upheld the standing of SCRAP to sue, stating that where a plaintiff "has been or will in fact be perceptibly harmed," that person has standing to sue.³

Regarding the requirement of a "legal interest" to sue, Lyndel V. Prott,⁴ suggests that, in the case of cultural property like venerable old churches, "an imaginative solution is to allow suit by the object itself." She notes that in Mullick v. Mullick (LR LII Indian Appeals 245), the U.K. Judicial Committee of the Privy Council held that a family idol in Hindu law was not merely a chattel but rather that it enjoyed legal personality and could sue and be sued. She also notes that in Sierra Club v. Morton, Mr. Justice Douglas in a dissent stated that he "did not see why such natural objects should not have a right to sue against disturbance."⁵ Of course, who should be seen as properly representing the idol, sacred person or natural object in question, is another matter, which would need to be carefully studied.

Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes, the corporation sole — a creature of ecclesiastical law — is an acceptable adversary and large fortunes ride on its cases. The ordinary corporation is a "person" for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes. So might it be with valleys, alpine meadows, rivers and lakes. Thus, contemporary public concern for protecting nature's ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation.

As we have seen, there is no problem with bodies of things having juridical personality in canon law. The real question in canon law is that of "legitimate interest" or standing to sue. In canon law it had been argued that the involvement of the faithful in the construction of a parish church gives them a fragmentum iuris or particulam iuris [This could be translated roughly as a "piece of the action." Ed.] to suppress, which might lead to dire consequences especially as regards the future construction and conservation of churches. Benito Gangoiti argues that this stature gives them what canon law defines as legitimatio activa, or active legitimacy. This provides the legal standing to defend their right, either as individuals or as a group, by initiating hierarchical recourse against a decree of the bishop, which is issued without any dialogue or coordination with the faithful having taken place. This could include, if necessary, an action before the Supreme Tribunal of the Apostolic Signatura.⁶

Other canonists have argued that "actual" participation in an administrative act, even though not required by law, e.g., where a person has devoted time or money towards achieving or preventing a particular decision, may give rise to an interest differentiating the person concerned from the rest of the faithful and giving rise to standing.⁷

One might also note that, whereas in the 1917 Code a parish was merely a piece of territory containing two moral persons, one a pile of stones forming a church building and the other a mass of property forming the pastor's benefice, the 1983 Code tells us that a parish, under canon 515, is a certain community of Christ's Faithful within the particular church or diocese stably constituted, and it has juridical personality.

Under canon 115, §2, such a juridical person would seem to be a non-collegiate universitas personarum. In such bodies of persons or corporations aggregate the members do not have voting rights. But while one may be a non-voting member of the juridical person, it would seem anomalous for the non-voting member of an Anglo-American corporation aggregate to have no voice to prevent the destruction of its most valuable asset. Hence, the question of standing to sue.

Recently one canonist, Fr. Richard J. Barrett has collected the cases of the Apostolic Signatura on this question of standing to sue and reported on them.⁸ It so happens that the matters in dispute have to do with property or cultural patrimony, but the principles employed in the determination of active legitimacy, or standing, would apply as well to other issues. We thought our readers would find the Apostolic Signatura's views of interest.

The cases in fact are few. In a 1985 case a group of parishioners organized to oppose the reduction to profane use, demolition and sale of their town-centre parish historic church. The Signatura held that the group of parishioners did not have a personal, direct and current interest in the object of the recourse, the decree of reduction and demolition. Thus, they lacked standing for recourse.

Two years later came a case in which the bishop had determined that a church was no longer large enough for the current worshipping community and hence he determined to build a new church in a different location. A group of parishioners opposed this decision and argued that the new location would make it difficult for them to fulfill their obligation to attend Mass. Their recourse to the Congregation for the Clergy, which has jurisdiction over church property questions, was rejected, inasmuch as canon 515 says the bishop has authority to erect, suppress and modify parishes. The recurrents' advocate pled that their financial contributions over the years to the support of the church gave them a legitimate interest in the recourse. While acknowledging the recurrents' general interest in the conservation of the church building, the tribunal declared that the recurrents failed to show injury to an interest protected by law.

In 1989, a case arose as a group of parishioners had recourse against a decree by their bishop providing for the reordering of the interior of their parish church. The decree was founded, they argued, on a misunderstanding of liturgical law. The Signatura held that the bishop had followed the requisite requirements of consultation, which did not include the consultation with the laity, unless they can show a patrimonial or legitimate right.

In another case that year the archbishop decided to suppress three existing parishes and, in their stead, erect a new parish. The church of the first of the three parishes was designated as the church of the new parish. This church would be renovated and then formally retitled as the new parish church, while the church of the second parish would be reduced to profane use and the church of the third parish would be reduced to profane use and sold. While the parishioners did not object to the suppression, they did object to the reordering of the church's interior, which involved removal of the altar rail, modification of the reredos, and a change in seating arrangements. The recurrents argued that the phrase of liturgical law, participatio actuosa or actual participation was being used to justify reform by demolition, contrary to the 1971 circular letter of the Congregation for the Clergy on cultural property, Opera artis. The Signatura held that a general interest in the conservation of a church does not rise to the level of the legitimate interest necessary in order to give standing for recourse. Nor was the right set forth in canon 214 (i.e., the right to one's own form of spirituality) identified with a particular church building. Therefore, positive law did not protect the interest involved. The Signatura thus held that a group of parishioners lacked standing to oppose by way of recourse plans approved by the Archbishop of Cincinnati for the renovation of Saint Stephen Church in Hamilton, Ohio. Most unusually, the opinion was published in Notitiae, the Journal of the Congregation for Divine Worship.⁹

The following year a case arose over the suppression of a parish and the reduction of its church to profane use. Recourse was again brought by a group of parishioners. The Promoter of Justice noted that the pastor, not a group of unrecognized individuals, had the right to appear for the parish. The deputy Promoter of Justice then stepped in and submitted three vota, or opinions. He argued that the recurrents' lack of standing was not proved and that, moreover, a violation of procedural law was shown. Here there was no showing that the suppression and the reduction to profane use had been decreed after consultation with the presbyteral council, as required by canons 127, 515, §2 and 1222, §2. With respect to the standing of the recurrents, the definitive decree noted that they were parishioners and that parishioners enjoy the right that in everything, which affects them as parishioners the norms of canon law should be observed. It therefore quashed the decree of reduction and suppression. However, the upshot seems to be that if one can show a procedural defect then one will be accorded standing to protest against it and have recourse against the administrative decision one opposes.

This, then, is a short report on the cases on standing in administrative appeals.

Notes

(1) Onus v. Alcoa, 149 C.L.R. (1981), 27 at 44

(2) 28 A.L.R. (1979-80), 257

(3) 412 U.S. 669 (1972) at 688

(4) L.V. Prot, "Problems of Private International Law for the Protection of Cultural Heritage," Recueil des Cours de L'Academie de Droit de La Haye (1989) 252

(5) 405 U.S. 727 (1972) at 741-743

(6) De iure standi in judicio," 65 Angelicum (1988) 392.

(7) Paul Hayward, Administrative Justice According to the Apostolic Constitution Pastor Bonus, Rome, 1993, p. 136.

(8) "The Non-Recognized Association and Its Capacity to Act in Court," 87 Periodica (1998) 60, 63.

(9) Notitiae, 26 [1990] pp. 142-144

© 2003 Duane L.C.M. Galles

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