Text of Fr. Phillips Canon Law Letter to Cupich

Text of Fr. Phillips Canon Law Letter to Cupich

MONDAY, JUNE 25, 2018

On March 17 of this year, it was announced that Fr. Frank Phillips, Pastor of St. John Cantius in Chicago and Founder and Superior of the associated order, the Canons Regular of St. John Cantius, had been removed from public ministry (and thus from his positions as pastor and superior) 
by Cardinal Blase Cupich, allegedly based on “credible accusations of improper conduct involving adult males.” (The more precise nature of these charges as well as the identities of the accuser or accusers has never been officially stated or released.) On June 23, after an investigation by the Congregation of the Resurrection (“Resurrectionists”) – where Fr. Phillips was ordained and with whom he was also still a member – the Archdiocese of Chicago declined to reinstate Fr. Phillips and confirmed that his faculties for ministry would remain withdrawn. Though neither the investigation report itself nor any other details were publicly released, it is known that part of the recent decision was made against the recommendation of Resurrectionist Provincial Fr. Gene Szarek, based on the report and the results of the investigation. The contents of the report were said by some to have “exonerated” Fr. Phillips.

While attention has understandably been focused on the recent decision of the Archdiocese and the report of the Resurrectionists, it is now clear that another aspect of the case was and presumably still is unfolding behind the scenes.

Fr. Phillips has been pursuing the case through canon law.

Mahound’s Paradise has obtained a letter written by canon lawyer Alan R. Kershaw to Cardinal Blase Cupich on behalf of Fr. Phillips. The letter is dated April 29th, six weeks after the initial decision by Cupich to remove him from public ministry, but six weeks before the recent additional determination by the Archdiocese. I do not know the current status of the issue or the case.
Nor do I know whether Cupich ever sent a “reply,” as asked, or if he did, what it may have contained. But we do know that Cupich must have recently acted in spite of it.
Not only does the following letter invoke some expected “legalese”, as most legal communications do, but it also features the use of Latin words and phrases, as many legal matters and most canon law matters do. We haven’t translated any of them in the following text, but I think the meaning of most of them is clear in context, especially combined with the rough understanding of Latin roots and English etymology that many of us non-Latin speakers have. Obviously, readers are encouraged to also use Google Translate or similar resources for additional understanding.
To speak in layman’s terms, Fr. Phillips’ legal counsel argued that based upon the procedural actions and statements of the Archdiocese in March, the initial actions of Cardinal Cupich to remove Fr. Phillips from public ministry were unfair and unjust, or, more to the point, invalid under canon law. Fr. Phillips was prematurely judged guilty, harshly disciplined and publicly humiliated without, at that point, sufficient procedure or cause. Indeed, these actions were undertaken before the commencement of the formal investigation by the Resurrectionists. Because he was already guilty, testimony by any of the priests and brothers of the Canons – many of whom would presumably be in a good position to know about the existence or absence of “improper conduct” on the part of Fr. Phillips – was ruled out in the investigation into whether or not he was guilty.
Of course it sounds unjust. It also frankly sounds bizarre.
If there had been an effort on the part of the Archdiocese to “get” Fr. Phillips (something that no one, arguably, has any certain or direct evidence for), one would imagine that the effort would have been more intelligently managed.

Canon 193, §1, CJC clearly establishes: “A person cannot be removed from an office conferred for an indefinite period of time except for grave causes and according to the manner of proceeding defined by law”.

Where is the “grave cause”? And, why was the requisite “manner of proceeding defined by law” set aside, and not followed as prescribed by the Codex?

Primo ictu oculi your decree, the singular administrative act dated March 12, 2018, is ipso jure null and void under canon law.

Cardinal Cupich was asked to reverse his actions:

In light of the arguments heretofore articulated sive in jure sive in facto, on behalf of Fr. Phillips and in defense of his person and interests, You are hereby respectfully petitioned to revoke your March 12th decree in its entirety and, to said effect, restore Fr. Phillips’ status quo ante as Pastor of St. John Cantius and Superior of the Canons Regular SJC.

But he was also put on notice that if he did not do so, further recourse would be taken:

However, should Your Eminence not deem the above arguments to carry sufficient weight for the reasonable and justifiable revocation of your March 12th decree, then by these presents Fr. Phillips makes formal hierarchical administrative recourse against your decree of March 12, 2018.

Obviously one assumes the canon law case is now being pursued, possibly in Rome, irrespective of Cupich’s recent decision to make permanent his initial actions. But given that the recent decision by Cupich itself appears manifestly suspect, in view of the actual results of the investigation by the Resurrectionists, one also imagines that it cannot but help Fr. Phillips in this separate case. That Cupich exhibited “precipitous judgment” and perhaps even an “animus” against Fr. Phillips three months ago can only acquire additional plausibility against this new background.

LAW OFFICES 

Alan R. Kershaw, Ph.B., J.U.D., J.D.

Advocate of the Apostolic Tribunal of the Roman Rota Practicing in the Supreme Court of Cassation

Rome, 29th April 2018

H.E . Blase J. Card. Cupich Archbishop of Chicago 835 North Rush Street Chicago, IL 60611-2030 U.S.A.

Re: Rev. C. Frank Phillips, C.R.

Your Eminence,

Greetings in the Risen Christ!

I have been retained by Fr. C. Frank Phillips, C.R., to defend him in the canonical forum. Attached herewith is a copy of the mandate of appointment. Should you require an original of the mandate, kindly let me know and I will have one delivered to your offices.

Fr. Phillips has instructed me to contact you with regard to his current status in the Archdiocese of Chicago, and as the Founder of the Canons Regular of St. John Cantius.

Before proceeding, indubitably it is salutary to recall certain recent, salient, and undisputable events.

  • February 26, 2018 Fr. C. Frank Phillips was called by Fr. Dennis Lyle and Fr. Jeremy Thomas of the Priest Vicar Board, informing him that accusations of improper conduct had been made against him.
  • The afternoon of March 2nd Fr. Phillips, accompanied by his civil lawyer, met at the Chancery with Fr. Dennis Lyle, Fr. Jeremy Thomas, and Sr. Joan McGlinchey. Also present was Fr. Gene Szarek, C.R., in his capacity as Provincial General of the Congregation of the Resurrection. Fr. Phillips did not respond to the allegations, nor, as you know, was he legally obliged to.
  • Ten days later, on March 12th You announced your decision “to remove the faculties of Reverend C. Frank Phillips, C.R., which means he can no longer remain as the pastor of St. John Cantius and the superior of the Canons Regular”.
  • On March 16th you wrote to the “Parishioners, Staff and Friends of Saint John Cantius Parish”, informing them: “that I have had to withdraw Reverend C. Frank Phillips’ faculties to minister in the Archdiocese of Chicago”, and that you “took this step after learning of credible allegations of improper conduct involving adult men”.
  • The news of Fr. Phillips’ removal was soon in the local, State, national and international media: “In a statement to parishioners, Cardinal Blase Cupich explained that he had made the decision to « withdraw » Phillips after learning « of credible allegations of improper conduct involving adult men ». Anne Maselli, a spokeswoman for the archdiocese, said in an email that the allegations do not involve minors.” (Chicago Tribune, March 19, 2018; amongst others see also: Newsweek, March 19, 2018; Crux, March 20, 2018).
  • Within the time limits foreseen by canon law, on March 26th Fr. Phillips formally petitioned you to “either revoke or emend your decree” (can. 1734), and to “engage in a process of mediation which can resolve this issue without further canonical action” (can. 1733, §1).
  • The Saturday following Easter you met with the members of the Canons Regular, and during the course of the meeting, with reference to Fr. Phillips, you reportedly expressed to those present that the investigation of the diocese indicates that he is guilty. It is also my understanding, that you strongly recommended to the members of the Canons Regular to not give witness testimony before the Review Board.
  • On the 10th and 12th days of April the “Review Board”, or investigative panel constituted by the Superior of the Congregation of the Resurrection, Rev. Fr. Gene Szarek, interviewed Fr. Phillips’ detractors, and other persons, including Fr. Phillips, who was accompanied by his civil lawyer. Not surprisingly, Fr. Phillips denied the allegations, just as all innocent people refuse to confess to illicit actions they did not commit. To date, the Panel’s final report has not been presented, but it is forthcoming.

* * * * *

As Your Eminence knows, canon 1717 CJC recites: “§1. Whenever an ordinary has knowledge, which at least seems true, of a delict, he is carefully to inquire personally or through another suitable person about the facts, circumstances, and imputability, unless such an inquiry seems entirely superfluous. §2. Care must be taken so that the good name of anyone is not endangered from this investigation.”

In your letter/decree of March 12, 2018 to Fr. Gene Szarek, C.R., you generically signify: “Considering the complaints of inappropriate conduct recently brought against the Reverend C. Frank Phillips, CR […] I hereby withdraw all of his faculties to engage in any ecclesiastical ministry in the Archdiocese of Chicago, and remove him of pastor of St. John Cantius Church”; therefore: “I will appoint a parish administrator until the matter currently under investigation is resolved”, and, “I will appoint someone to serve as superior of the Canons Regular on an interim basis”. 

Furthermore, you express the presumption “that an investigation will be undertaken by your office into the allegations made against Fr. Phillips and the exact nature of his conduct. I ask that you keep me apprised of your progress and the ultimate outcome of your inquiries”, and close with your “prayer for a swift resolution to this matter”.

Also worthy of note is your appointment of Reverend Scott Thelander, SJC, also done on March 12th, “as administrator of St. John Cantius Parish and Superior ad interim”, and you convey your assurances “to visit with the Canons Regular as soon as I can to ask your suggestions and recommendations for moving forward with a permanent arrangement for the position of Superior”.

* * * * *

Primo ictu oculi your decree, the singular administrative act dated March 12, 2018, is ipso jure null and void under canon law. Attentive study of the facts and related documents further confirms this conclusion.

Canon 1717 explicitly mandates: « §1. Quoties Ordinarius notitiam, saltem veri similem, habet de delicto, caute inquirat ».

Præprimis, in Fr. Phillips’ case there does not appear to be any canonical “delict” to speak of.

Second, although there was no apparent or discernable « notitia delicti » you reportedly asserted to the members of the Canons Regular on Saturday, April 7th that the investigation of the diocese indicates that “Fr. Phillips is guilty”. If this corresponds to the truth, then a precipitous judgment was expressed, or better reiterated by your good self, albeit in absence of a delict and without a preventive « inquisitio circa facta et circumstantia et circa imputabilitatem ».

Canon 1717 also explicitly mandates: « §2. Cavendum est ne ex hac investigatione bonum cuiusquam nomen in discrimen vocetur ».

Prescinding momentarily from whether you ordered an « investigatio prævia » into the allegations of non-existent « delicta », on March 12th you asked Fr. Gene Szarek, C.R., to “keep me apprised of your progress and the ultimate outcome of your inquiries”, on the presumption “that an investigation will be undertaken by your office into the allegations made against Fr. Phillips and the exact nature of his conduct”. Therefore, prior to the completion of any investigation, whether diocesan or by the religious order, you proceeded to inform the media of your decisions as set forth in your March 12th decree. This, Your Eminence, blatantly constitutes a violation of Fr. Phillips’ privacy and all rights relative to the preservation of his good name; a clear manifestation, in the minds of many Christifideles, of either an animus against Fr. Phillips, or a high level of suspicion and a low level of skepticism was present during the decision making phase, or, perhaps, a mixture of both; which reprovingly gives way to a reversed burden of proof, i.e. Fr. Phillips must prove his innocence rather than the reprobate accusers having to prove his culpability. To be clear, this is not simply an opinion, or a defense tactic of the undersigned patrocinium, but rather an easily verifiable current of valuation widely shared amongst the faithful, in particular by those who personally know Fr. Phillips, together with all those who are familiar with and participate in the good works of the Canons Regular SJC in Chicago, and elsewhere.

Canon 193, §1, CJC clearly establishes: “A person cannot be removed from an office conferred for an indefinite period of time except for grave causes and according to the manner of proceeding defined by law”.

Thereby, with regard to Fr. Phillips’ case, one legitimately queries: Where is the “grave cause”? And, why was the requisite “manner of proceeding defined by law” set aside, and not followed as prescribed by the Codex?

Ad rem, given the facts outlined herein it is indubitable that your March 12th decree is irreparably vitiated sive in procedendo sive in decernendo.

Ultimately, in the exercise of his priestly ministry Fr. Phillips has acted in accordance with canon 529, §§ 1-2, CJC, and has conducted himself in an exemplary fashion, reflecting the Magisterium and exhortations of Pope Francis; that is to be selfless and reach out to help others, regardless of their status, to be compassionate and always act with brotherly love especially towards those who find themselves in difficulty on the path of life.

If Your Eminence, as Ordinary of the Archdiocese of Chicago, prior to giving the March 12th decree had conducted a preliminary investigation, prompting the restrictions, scilicet the canonical sanctions, imposed on Fr. Phillips, then it can only be valuated as superficial and incomplete. Hence, your decree is lacking factual foundation (Cfr. canons 48-51 CJC).

What is more, the verbiage of your decree and other public writings appear contradictory, and unfounded in canon law. Hence, this perceived lack of clarity and linearity – also in reference to the erroneous application of the dictates of the prescribed canon law process – gives way to, and even further provokes profound confusion amongst the faithful, causing unnecessary scandal and division.

* * * * *

In light of the arguments heretofore articulated sive in jure sive in facto, on behalf of Fr. Phillips and in defense of his person and interests, You are hereby respectfully petitioned to revoke your March 12th decree in its entirety and, to said effect, restore Fr. Phillips’ status quo ante as Pastor of St. John Cantius and Superior of the Canons Regular SJC.

As a final resolution of the entire, baseless matter, this could prove persuasive to avoid litigation that potentially would involve the Archdiocese in the secular courts.

Indubitably, Fr. Phillips has been egregiously defamed by his reprobate detractors, including those who have “jumped on the band wagon” ostensibly hoping to have found an opportunity for fraudulent monetary gain.

The damage to Fr. Phillips’ reputation has indeed been compounded by those same wide reaching media reports which have caused and continue to consternation and astonishment amongst the Christifideles. Hence, it is left to Rev. Fr. Phillips to discern if and what further action should be taken to restore his good name.

On this point, Fr. Phillips suggests and would appreciate drafting any eventual joint communication to the faithful in the Archdiocese, regarding the positive resolution of all contrasts and his status.

However, should Your Eminence not deem the above arguments to carry sufficient weight for the reasonable and justifiable revocation of your March 12th decree, then by these presents Fr. Phillips makes formal hierarchical administrative recourse against your decree of March 12, 2018.

In closing, I take the opportunity to quote the words of His Holiness, Pope Francis, expressed in his recent letter to the Chilean bishops, wherein he asked forgiveness, acknowledging “that I have made serious mistakes in the assessment and perception of the situation, especially because of the lack of truthful and balanced information”.

From a professional perspective, and with legitima suspicione, I ask myself whether Your Eminence too has been misled by a deplorable “lack of truthful and balanced information”. Should this prove to be the case, then to the mind of Fr. Phillips’ supporters the moment to rectify matters must be seized immediately to underscore the fact that “zero tolerance” is not merely a one-way policy.

With a prayer for a positive resolution of all issues, I look forward to your
reply.

In Domino addictissimus,

Alan R. Kershaw, R.R.Adv.

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