Appealing a tribunal's decision: appeal locally or to the Roman Rota?

This is serious business. And once in a while quite long...

With the end of the ordinary 2nd Instance appellate process, abolished in 2015 by Mitis Iudex, appeal procedures are becoming unfamiliar to many canonists. A couple of years ago an appeal went from a 1st Instance tribunal in a small diocese to their 2nd Instance tribunal, where the staff was entirely new (bishops should never let this happen — some continuity of tribunal personnel and institutional memory/procedural memory is crucial). The 2nd Instance sent a letter back to 1st Instance after a few weeks saying they upheld the decision. It was immediately clear that no actual appellate procedures had been followed. The instructing judge at 1st Instance contacted the new Judicial Vicar of the 2nd Instance tribunal to ask what had happened. The Judicial Vicar, a very humble man with a canon law doctorate but little tribunal experience, said that he had looked at the case with the other judges and gave his opinion but if there was something he missed doing, could the 1st Instance judge please let him know. The 1st Instance judge referred him to the relevant portions of the Code of Canon Law, Dignitas Connubii, and Mitis Iudex. The case was finally properly adjudicated after some months.

But in terms of the “success” of an appeal, there are — based upon my own experience, and, as a disclaimer, ONLY upon my own experience — two avenues to travel.

1.) A Petitioner petitions for a declaration of nullity at his local diocesan tribunal (the local 1st Instance court), and receives a negative decision. That is, the tribunal has not seen sufficient evidence to overturn the presumption of validity of the marriage in question, and the marriage is not declared null. This is usually because the Petitioner has failed to supply adequate evidence for the nullity/invalidity of his own marriage (and this “failure” is a complex topic for another post in the future).

The Petitioner will be given the opportunity to appeal the 1st Instance (local tribunal) decision, either by appealing to the regional or metropolitan tribunal (in the US, and many other places around the world, typically located at another tribunal, sometimes in the same state or region, or a neighboring state or region, often at the metropolitan see if one’s own tribunal is a suffragan see), or, alternatively, he can appeal to the Tribunal of the Roman Rota in Rome. When an appeal goes from the tribunal where it started — 1st Instance — to another or higher tribunal, that tribunal is the 2nd Instance.

If the decision is negative at the 1st Instance, then the best avenue to pursue, in my opinion, is the local/regional 2nd Instance.

It’s sometimes the case that the small, suffragan dioceses all send appeal cases to the tribunal of their metropolitan archdiocese’s tribunal. Or it is sometimes the case that within the same ecclesiastical province (grouping of several dioceses under an archdiocese or metropolitan see), there is a “round robin” system: diocese A sends appeals to diocese B, who sends appeals to diocese C, who sends appeals to diocese A.

Having a 2nd Instance court nearby to send an appeal to — at least in the same country — means that it will be easier to stay in touch with them, to submit any new testimony, and to be available to be interviewed if necessary.

2.) Your former spouse has received an affirmative decision, a declaration of nullity. If you are opposed to the decision to declare your marriage null, then the best avenue is to appeal directly to the Roman Rota.

Like just about everything in Italy, it’s hit or miss in terms of time.

I had one case appealed there by an upset Respondent, and the decision was made to uphold the 1st Instance decision in about five months — five months from the arrival of the case in Rome to the upholding of the decision (the Rota even mentioned in its Sentence that everything in the case was well-prepared — perhaps implying that that is why things went swiftly). But then it took about another five months for them to finalize the paperwork, get a letter written, and finally to notify the tribunal of origin. Not complaining here — they run on a skeleton crew, believe it or not.

On the other hand, one case I heard of — but was not involved in — at another tribunal in the US, was sent on appeal to the Rota and was there for about 22 years…..and even then, if I recall correctly, the Rota simply wanted more information as it had not yet reached a decision. At that point, the tribunal of origin was not even able to locate the parties any longer. There is also a book by a woman who was marred to a Kennedy, in which she wrote that the whole process of sending her appeal to the Rota and then getting a decision back from them was about eight years (at least I think it was about eight years — I read the book when it came out, which is a while ago). I also had one “private client” case which received an initial affirmative decision (in favor of nullity) which the Respondent (my client) appealed to the Rota, and which was there long enough for the Petitioner to finally give up and withdraw his original case altogether and simply accept that he and his former spouse were still married in the eyes of the Catholic Church.

If the party who is unhappy with the prospect of a former spouse marrying again in the Catholic Church just wants to “buy time” or delay things…the Roman Rota, like any appellate court, is quite used to getting cases like that, and refers to such appeals as “merely dilatory.” That was more or less the situation with the five-month case mentioned above.

Much depends, however, on the judges of the Rota who are assigned to the case. They come from different nationalities, and thus have somewhat different overall approaches to handling cases. Let me simply say that some have a greater sense of the urgency of such matters.

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It is very important to understand that reasons for an appeal must be given — beyond just “I don’t like this.” And new and pertinent evidence needs to be supplied — evidence that was not already included in the case. I had a recent case where the party who was appealing a 1st Instance decision simply rewrote his initial statement to the tribunal entirely in capital letters and sent it to the 2nd Instance tribunal. That does not really help, to say the least, because the 2nd Instance tribunal receives a full and complete copy of the original 1st Instance case in its entirety anyway, so there is absolutely no need whatsoever to duplicate any material — ever. Especially not “shouting” in all caps.

And it’s not that any 2nd Instance tribunal has judges who are smarter, wiser, holier, and more able to see what you think you see, and will be able to figure things out this time in your favor — unlike those dumb judges at 1st Instance! No, they are pretty much the same, and have a general tendency to view things similarly.

So there has to be something NEW — new material, new evidence, new proofs — for the appellate judges to look at.

Oh, and get a canon lawyer for the appeal — one who knows appellate cases inside and out.