by Samuel L. Bray

The Anglican Church in North America has different church courts, and one of them is called the Provincial Tribunal. On June 6, 2023, it published an opinion in a case called Ruch v. Beach, which has arisen out of allegations of misconduct in the Diocese of the Upper Midwest. In its opinion, the Provincial Tribunal announced two important decisions. First, it has authority to resolve “matters in dispute arising from the Constitution and Canons of the Province,” without having to wait for an appeal from another court’s decision. Second, none of the judges on the Provincial Tribunal are disqualified from serving on this case because of previous contacts with the Right Reverend Stewart Ruch, who is the bishop of the diocese. There were many other matters discussed in the lengthy opinion, and this is a short explanation of what it means, especially for readers who are not lawyers.

First a bit of background. In the Anglican Church in North America, if a bishop violates the law of the church, one of the disciplinary mechanisms is for three other bishops to file a “presentment” that describes the bishop’s misconduct. That’s a formal accusation—it has to be written, signed, and sworn to by the bishops. The presentment usually goes to the archbishop of the province, who then sets up what is called a “Board of Inquiry” to investigate the presentment. If the Board of Inquiry signs off on the presentment, then it goes to a court that will hold a trial on the charges against the bishop. After the trial, there can be an appeal to a court called the Provincial Tribunal. The Provincial Tribunal is made up of seven members, elected to the court, and includes bishops, other clergy, and laity, and it is roughly analogous to the U.S. Supreme Court or a state supreme court.

In light of various scandals in the Diocese of the Upper Midwest, there was an investigation by the province. After the investigation, three bishops signed a presentment against the bishop of the diocese (Bishop Ruch), alleging various failures of oversight and investigation relating to misconduct in the diocese. In this case, the next step was for the archbishop of the province, the Most Reverend Foley Beach, to set up a Board of Inquiry.

While that was happening, Bishop Ruch jumped straight to the last court in the chain—the Provincial Tribunal. He argued that the presentment was not valid because it did not meet one of the requirements for a presentment: namely, the three bishops who signed the presentment had not actually sworn that Bishop Ruch violated the canons (another name for church law). Instead, the three bishops said they were signing the presentment because they wanted the process to continue, but they were not taking a position on Bishop Ruch’s guilt or innocence.

This is the first case that had ever been brought to the Provincial Tribunal. And it raises a couple key questions. One question is if the accusing bishops don’t swear to a presentment, is it still valid? Another question is whether at this time the Provincial Tribunal can decide whether the presentment is valid. In other words, does the Provincial Tribunal need to wait until the entire process is done to make a decision, or can some questions or cases be brought to it before that point? Another issue also received attention: should certain members of the Provincial Tribunal drop off the case (in technical terms, recuse themselves) because they are too close to one of the parties, namely Bishop Ruch? These are the main questions discussed in the Provincial Tribunal’s opinion.

As a threshold matter, the Provincial Tribunal decided that it did have authority to decide the case. The constitution and canons of the province give the Provincial Tribunal two kinds of jurisdiction. It has “appellate jurisdiction”—in other words, after the Board of Inquiry and after trial of a bishop, there can be an appeal to the Provincial Tribunal. It also has “original jurisdiction”—and original jurisdiction means that certain cases can be brought straight to it, without having to work their way up the chain. And this is the key point in the whole opinion: is this disagreement about the validity of the presentment one of those kinds of cases? The Provincial Tribunal says yes, because the original jurisdiction covers “matters in dispute” about the meaning of the constitution and canons. That language is in the Anglican Church in North America’s constitution in Article XI. And here, the Provincial Tribunal said, there is a dispute about whether a presentment is valid when the bishops filing the presentment don’t swear to it. The archbishop’s position was that the original jurisdiction does not cover this case, because if it did, then all kinds of cases could flood into the Provincial Tribunal, as long as anything was being disputed by somebody.

The other question resolved by this opinion was about the judges on the Provincial Tribunal. The archbishop had argued that four of the seven members of the Provincial Tribunal should be disqualified because of their contacts with Bishop Ruch. On this question the Provincial Tribunal did three things. First, drawing on English and Canadian law and English canon law, it decided what the standard should be for recusal: a judge should drop off the case when there is actual bias (“an attitude of mind that prevents the judge from making an objective determination”) or apparent bias (when a “fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”). Second, it decided that it was up to each individual judge to decide for himself or herself whether that standard was met. That may sound odd, but it’s pretty typical practice for supreme courts and other courts from which no appeal is possible—the judges on the final court are the ones with whom the buck ultimately stops, so to speak. Finally, each of the judges decided that there was no actual or apparent bias, and none recused. The archbishop’s position, remember, was that four of the seven judges should have recused.

There are plenty of other issues discussed in the Provincial Tribunal’s opinion. The Provincial Tribunal expressed skepticism that the presentment was valid since it was not sworn to by the three bishops. And on another issue, the Provincial Tribunal decided against Bishop Ruch—he had argued that the Provincial Tribunal should decide whether the whole previous investigation was consistent with due process, and the Provincial Tribunal said that was out of bounds. But the decisions of the Provincial Tribunal were the ones described above. To recap these decisions: first, the Provincial Tribunal has authority to decide whether an unsworn presentment is valid because the constitution gives it original jurisdiction over “matters in dispute”; and second, none of the judges needed to drop off the case. It should be noted that each of these decisions was unanimously reached by all seven members of the Provincial Tribunal, including the three members whom the archbishop did not argue should drop off the case.

If you want to read the Provincial Tribunal’s opinion, you can find it here. You can read Archbishop Beach’s statement about the opinion here. And you can read Archbishop Beach’s argument to the Provincial Tribunal here.

So what’s next? There will be further proceedings. Because the archbishop’s position was the Provincial Tribunal should not decide the case, the attorneys representing him did not argue about whether the presentment was valid. So there will be more arguments on that point. In the meantime, this presentment against Bishop Ruch is on hold. But the Provincial Tribunal made clear that it was not deciding anything about whether Bishop Ruch had violated the canons, or about any other allegations related to the diocese. So there could be other presentments. This case, at least so far, has been about a narrower question—whether a presentment that isn’t sworn to is still valid—and about whether at this stage of the proceedings the Provincial Tribunal can decide that narrower question.

Samuel L. Bray is the John N. Matthews Professor of Law at the University of Notre Dame. Among the subjects he teaches are Civil Procedure and Anglican Canon Law. The author is grateful for comments from Deacon William Barto, Esq., a member of the Anglican Legal Society and Assistant Minister at Holy Trinity Reformed Episcopal Church in Chantilly, Virginia.