Thursday, June 17, 2010

Germany: Canon lawyer discusses Bishop Mixa's resignation: Was it valid?

I have been following the "Mixa case" in Germany since it bubbled up some months ago.  It was pretty much contained in German language media, with some reaching the US (I'll provide links at the bottom). Because I had to rely on a google translation tool, I could not provide coverage as those translations are not reliable.  There was also much hyperbole.  When I found the article below by Rev. Gero Weishaupt, J.C.D., I felt it was worthy of having translated. 

For those unfamiliar with this case, a canon lawyer will brief you in the article below.  For canonists, Fr. Weishaupt raises some very interesting points that will probably be debated. The rest of us can learn a few lessons about rash judgment, calumny, and the right that everyone has to his good name (review, Chapter 2, Section 2, article 8 on the "8th Commandment" in the Catechism of the Catholic Church).

We have a case here that appears to have spun out of control.  There are serious questions being raised about how diocesan staffers, media, and some bishops in Germany handled this case.  I do not know anything about Bishop Mixa or whether some of the claims are legitimate or not.  I do know that the worst claim - that of child sexual abuse - was dismissed by the prosecutor faster than a cockroach can get into hiding when the lights are turned on.  Why? It was "news" to the alleged "victim"!  The Prosecutor gets an "A" for doing his homework. Those who brought the sex abuse claim to him get an "F" for not bothering to look at their homework. We have to wonder: What was the Pope told?

I leave you with a translation of an article which appeared in on June 15, 2010Rev. Gero P. Weishaupt, J.C.D. is a native of Aachen, Germany, and a canon lawyer who was incardinated in the Netherlands (you can see his curriculum vitae through a google translator here ... German readers can toggle the radio button in the upper right-hand corner to "original").

This translation has been reviewed and approved for publication here at Te Deum Laudamus, by Fr. Weishaupt. I was able to communicate in English quite well with him.  He can be reached through his homepage using the email form. 


A canonical commentary by Fr. Gero Weishaupt, J.C.D.

Print and internet media have been reporting since yesterday about a forced resignation by Bishop Walter Mixa from his office as Bishop of Augsburg. If the facts are correct, Mixa’s resignation is canonically invalid. Here we will examine whether the condition of a forced resignation and the erroneous acceptance of the resignation was fulfilled, if media reports are accurate.

What has happened? The state of the matter according to media reports

Demand for resignation

What has – according to the media – happened? On April 21, Bishop Mixa reportedly called a crisis meeting with a small circle of his closest collaborators. The Augsburg Auxiliary Bishop Anton Losinger, the General Vicar Knebel, and the diocesan official in charge of handling abuse cases, H. Heinrich, took part at this meeting. At the meeting the Bishop was pressured on account of the publicized events in the parish at Schrobenhausen, and was pressed to sign an already prepared statement of resignation. He was given to understand that he could count on being removed from office, if he would not resign from office himself. That same evening the Bishop of Augsburg asked the Pope to release him from his office.


Three days later, however, on April 24, Walter Mixa is reported to have expressly rescinded his resignation in a personal fax to Pope Benedict XVI. At that time, Mixa was reported to be staying in a Swiss clinic for treatment. On April 29, Pope Benedict XVI called both Archbishops Marx from Munich and Zollitsch from Freiburg, as well as Auxiliary Bishop Losinger from Augsburg, to come to the Vatican so that he could receive an explanation of Mixa’s recission, which had arrived via fax. In that conversation, the three bishops informed the Pope that the Bishop of Augsburg was also under suspicion of sexual abuse. On May 1, according to the media, both Archbishops confronted Bishop Mixa with a (supposed) case of abuse, with the urgent request to withdraw the recission of his April 21 letter of resignation, because otherwise he was threatened with removal from office. On March 25 – again, according to media reports – the Augsburg Diocese had learned of an alleged case of abuse. Without any closer preliminary investigation or contact with the alleged victim, the abuse case was reported to the state prosecutor’s office. “With anxiety,” as the media put it, Mixa complied with the bishops’ demand.

Untenable suspicion

Later the prosecutor’s office put a stop to the preliminary investigation, because the suspicion of sexual abuse had not become solid. The damaging piece of evidence consisted of an eight-line note by a female former parishioner, who reportedly had written that Mixa had invited a 16-year-old server to his home multiple times. There was no mention of sexual activity. The supposed victim himself later emphasized that he had not been abused by Bishop Mixa at any point in time.

What does Canon law say? The state of the law

Compulsion and error

According to Canon law, a bishop can resign his office on account of poor health or for another grave reason (can. 401 § 2). Because the office of bishop is conferred by the Pope, the resignation from office must be accepted by the Pope (cf. can. 189 § 1). A bishop’s resignation from office is therefore always a two-sided matter. It consists, on one side, of the statement of resignation by the bishop, and on the other side, of its acceptance by the Pope. As with every legal act, a bishop’s resignation from office and the acceptance of that resignation by the Pope must be a fully human act, that is to say, performed by the will and the intellect. A resignation carried out because of compulsion on the part of the bishop and/or error on the part of the Pope is invalid.

An invalid statement of resignation on the part of the bishop

A statement of resignation which is the result of severe and unjustly induced fear is invalid. Fear arises through the fact that the will of the office-holder is shaken by the threat of some evil. Fear, not free will, is the cause of the statement of resignation. The person’s freedom is wounded. Whereas fear does not invalidate other legal acts, yet such a legal act can be rescinded by a court judgment (can. 125 § 2), the legislator views a resignation from office because of fear as invalid of account of the law.

Invalid acceptance of the resignation on the part of the Pope

The Pope is free in regard to the acceptance. As long as the Pope has not accepted the resignation from office, the statement of resignation has no legal effect. The Pope weighs the reasons for resignation presented in the statement. This assumes that the reasons are correct and that they correspond to the truth. If the Pope were to accept the resignation, although not even his motivating reason were to correspond to the truth, the resignation from office would be invalid on the ground of an error on the part of the Pope (can. 126). Because no claim of a right can insist on the acceptance of a resignation, but rather it lies completely within the Pope’s free judgment, the acceptance is carried out by means of a rescript, that is, an administrative act through which the Pope grants the request (cf. can. 59 § 2). A rescript is in fact invalid if not even one of its motivating reasons corresponds to the truth (can. 63 § 2).

Resignation probably invalid

Bishop Mixa was – according to media reports – pressured to offer his resignation. He did this apparently in what was for him a psychologically tense situation. His admission to a Swiss hospital, among other things, points to this. This would be an indication for a subjective severity of fear sufficient for an invalid statement of resignation. The evil of removal from office, which stood before him and which threatened him, if he would not declare his resignation, shook his free will. If that is confirmed, the statement of resignation would be invalid.

Pope Benedict XVI appears – if the media reports are correct – to have only accepted the resignation after Archbishops Marx and Zollitsch and the Augsburg Auxiliary Bishop Losinger had reported to him a supposed sexual abuse, but one shown in retrospect to be inaccurate. This was the deciding reason for the Pope to accept the resignation of Bishop Mixa. But because this accusation has proven to be untrue, the Pope’s decision rests on an error. An act of sexual abuse never took place. As a legal act the Pope’s acceptance of the resignation, therefore, would be equally invalid.

Also the rescript conveyed to Bishop Mixa, in which he was informed of the papal decision to accept his resignation, would be invalid, because it rested on a false fact, which had been the motivation for the papal decision.

The Mixa case is not yet “ad acta”

Because the resignation has been accepted by the Pope, the not unlikely conditions of compulsion and error in the “Mixa case” would need to be investigated thoroughly by the Pope. He can assign the canonical investigation to the relevant curial departments. The Congregation for Bishops would have responsibility.

Damage to the bishop’s reputation

Bishop Mixa’s reputation has been damaged. Harming a person’s reputation is a delict under canon law (can. 220 in connection with 1390 § 2). It is possible to present a complaint regarding this. Canonical penal law prescribes censures (1390 § 2), and provides norms for the possibility of imposing a just penalty. For clerics suspension is possible, for laymen interdict, and according to the severity of the case even excommunication is not ruled out for clerics and laymen.

Original signature: / Gero P. Weishaupt, J.C.D. /

Original copyright notice: © 2005 - 2010 by

Translation from the German by Richard Chonak on June 16, 2010

I want to point out, that in addition to the April 29, 2010 private audience the Holy Father had (as mentioned by Fr. Weishaupt) with German Bishop's Conference President, Mons. Robert Zollitsch, Mons. Reinhard Marx, and Auxilliary Bishop Anton Losinger of Augsburg, other private audiences with bishops of Germany have taken place since then.  These may or may not have anything to do with the "Mixa case", but I found the timing interesting:
We also have a partially translated article by Richard Chonak for this blogpost. Another Canon lawyer has a different take.  Here is that piece from the article at Focus Online Panorama (German):

"In the interview, Mixa does not even rule out proceeeding canonically to overturn his resignation. Canon lawyer Haering considers that unproductive: 'If the attempted resignation was given under the unjust influence of severe fear, malicious deception, or because of a relevant error, it is invalid. But that it not to be assumed, because the Pope would have carefully reviewed the resignation.' He points out that from April 21, when Mixa submitted his resignation, to May 8, when the Pope accepted it, there was sufficient time for a careful examination.
"In July Mixa will be received by Pope Benedict XVI in Rome. He will "discuss how the situation should develop from here" with the Pope. Whatever else Mixa may hope from the visit, the Vatican is reserved on the subject. Vatican spokesman Federico Lombardi did confirm the meeting, but made clear: 'It is not foreseeable that there will be discussion of the acceptance of his resignation.' Canonist Haering said: 'That the Pope is receiving Walter Mixa shows that Mixa is getting a hearing from him. But it is not a sensation when the Pope receives a bishop, who has asked for an audience.'"
As I said earlier, this case will probably create some discussion among canonists.

I hope that Catholic news sources in the US will follow the story and provide us with updates as they become available. 

Please pray for everyone involved in this case, especially the Holy Father as he discerns the matter. Pray also for those who may have been involved in wrong doing on either side of this case. May they carefully examine their conscience and have the grace to seek reconciliation.

Related Links (news is now reaching English language sources). 

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The obedient are not held captive by Holy Mother Church; it is the disobedient who are held captive by the world!