1 PROVINCIAL TRIBUNAL ANGLICAN CHURCH IN NORTH

PROVINCIAL TRIBUNAL

ANGLICAN CHURCH IN NORTH AMERICA

Bishop Stewart Ruch, III,

Petitioner,

Archbishop Foley Beach,

Bishop Todd Hunter,

Bishop Kenneth Ross, and

Bishop Charles Raymond Gillin,

Respondents.

DECISION & ORDER

PT-2023-1

INTRODUCTION AND SUMMARY

This Tribunal is here ruling on the Respondent Archbishop’s Motion to Dismiss and

Disqualify filed on March 25, 2023, which makes the following five separate motions:

1. whether four of the seven seated members of the Tribunal must recuse

themselves;

2. the disclosure of alleged ex parte communications between certain

members of the Tribunal and parties to this case;

3. whether the Tribunal has authority to issue a stay over a Board of Inquiry

when an action is pending before this Tribunal;

4. whether this Tribunal has jurisdiction over Counts I and II (defined below)

brought by Bishop Stewart Ruch III; and

5. whether Bishop Ruch’s Amended Petition should be dismissed for failure

to state a claim upon which relief can be granted.

To avoid any misconceptions about the Tribunal’s ruling, we want to make clear:

This Tribunal is not addressing the merits of the accusations against Petitioner Bishop

Ruch. This Tribunal is not addressing the investigation of those accusations for the reasons

The Motion to Dismiss and Disqualify characterizes itself, in part, as the equivalent of a U.S. Federal Rule 12(b)(6)

motion to dismiss but does not conclude with a request to dismiss for failure to state claim upon which relief may

be granted. See Motion to Dismiss and Disqualify at 1. We nevertheless construe pleadings to give effect to their

apparent intent.

stated below. In this Decision & Order, the Tribunal is only addressing the issues raised by

the Motion to Dismiss and Disqualify, addressing a matter in dispute under our original

jurisdiction,

a narrow matter in dispute under Canon IV.4.1: whether the presentment of

Bishop Ruch, which triggered the empanelment of a Board of Inquiry, meets the

requirements of Canon IV.4.1.

The following is a summation of the unanimous holdings of the Tribunal.

1. The motion to disqualify is DENIED. The standard of recusal most appropriate for this

body is that of the “fair-minded and informed observer” standard which exists in UK

domestic law, followed in Canadian law and is used in ecclesiastical courts in the

Church of England. The decision whether to recuse a member of the Tribunal,

following this standard, is an individual decision. Each of the individuals concerned

will make their own decision communicated in a brief concurring opinion, bearing in

mind that each Tribunal member is ultimately responsible to God for their decision and

the oath they have sworn.

2. The motion to disclose communications is DENIED. The Respondent has not alleged

any factual basis and his motion is merely speculative. In addition, there is no basis in

law for litigants to interrogate Tribunal members with respect to their interactions.

Moreover, this motion assumes a basic mistrust in encounters in ACNA gatherings that

is not in keeping with Christian brotherly fellowship. We leave it to individual Tribunal

members and parties to this case to refrain from speaking with one another about these

issues while the case is ongoing.

3. The motion to set aside the Stay Order is DENIED. All adjudicative bodies have the

inherent authority to issue ex parte orders to uphold the principles of fairness, due

process and natural justice in circumstances in which the delay in the notice would

result in harm or there is a concern that the other party will act improperly or

irrevocably. Given the gravity of continuing with a presentment and board of inquiry

that were potentially canonically invalid and the potential of irreparable reputational

harm to either Bishop Ruch, the Archbishop or the Province, the Tribunal decided that

it was in the best interest of the principles of fundamental justice and procedural

fairness to preserve the status quo by issuing a stay order.

4. The legislative history and context of the creation of the Provincial Tribunal indicate

that the grant of original jurisdiction to hear matters of dispute arising from the Canons

and Constitution had very clear beginnings and a clear goal.

ACNA Constitution, Art. XI, § 1; Canon IV.5.4.1.

The requirements for a presentment of a bishop require that, “[s]uch charges shall be in writing, signed and sworn to

by all the accusers and shall be presented to the Archbishop, the Archbishop’s delegate, or the College of Bishops.

The grounds of accusation must be set forth with reasonable certainty of time, place and circumstance.” Canon

IV.4.1.

i. Count I: The motion to dismiss for lack of subject matter jurisdiction is

DENIED. It ignores the plain and grammatical sense of Canon IV.5.4.1. To

allow a potentially invalid presentment to go forward and only allow its validity

to be challenged on appeal after all the steps of the process, including a

conviction, have been completed does not reflect the values of due process and

fundamental justice which are foundational concepts enshrined in the Canons.

Determining whether a presentment meets the canonical requirements is

squarely within the jurisdiction of the Tribunal.

ii. Count II: We do not directly address the motion to dismiss for lack of subject

matter jurisdiction for Count II. On the facts, this Tribunal is not the appropriate

venue to challenge evidence that is elicited by the investigation at this point in

the process. Much like in a criminal trial, the proper place to challenge the

evidence elicited by the investigation is a trial court or on appeal from the trial

court’s verdict. We do not address whether this issue could be heard on an

interlocutory appeal as this question is not before us.

5. The motion to dismiss for failure to state a claim is DENIED. It does not appear on its

face that the Presentment and Addendum meet the requirements under Canon IV.4.1,

since the Presentment was not sworn to by any of the three Respondent Bishops. The

addition of the Addendum raises further questions. This gives the Tribunal adequate

reasons to deny the motion and to maintain the Stay Order until the merits have been

brought before this Tribunal and both parties adequately heard, or until the parties have

resolved this issue on their own.

The Constitution of the Anglican Church in North America established this Provincial

Tribunal as the highest adjudicatory body of the Province. Its jurisdiction is set forth in the

Constitution and Canons. In establishing this Tribunal, the framers of the Constitution established

a court to, amongst other things, check the actions of other parts of the Province should they take

actions that violate the Constitution or Canons. Archbishops, bishops, chancellors, and the other

bodies and officers of the Province are not a law unto themselves. The law which governs the

actions of the Province is the Constitution and Canons. This Tribunal is designed to be the final

interpreter of the meaning of the Constitution and Canons.

We address first the sources of authority that bind this Tribunal. We are bound first and

foremost by the Word of God in the Old and New Testaments, which requires we be above

reproach, to pursue justice, and to be leavened by love. We are bound before God, before the

members of this Tribunal, and before our brothers and sisters in Christ by the oath we each

individually took the first time this Tribunal met in conference. The oath states as follows:

I do believe the Holy Scriptures of the Old and New Testament to be the Word of

God and to contain all things necessary for salvation through Our Lord Jesus Christ

and I do solemnly swear that I will faithfully uphold the Constitution and Canons

of the Province of the Anglican Church in North America consistent with the

requirements, demands and directions of Holy Scripture and that I will faithfully

and impartially carry out my duties as a member of the Provincial Tribunal of the

Province to the best of my ability, so help me God.

While such oaths may mean little in a cynical world today, they hold tremendous weight to the

members of the Tribunal. Our Lord said, “Let what you say be simply ‘Yes’ or ‘No’; anything

more than this comes from evil” (Matt 5:37). For a people for whom an oath is a solemn thing,

the oath this Court has taken matters. We are bound before God to fulfill this oath. Here, we say

“yes” to upholding the Holy Scriptures, the Constitution and Canons of the ACNA, and the Rules

of Procedure of this Tribunal in a faithful and impartial way.

This matter being a case of first impression, and the first case filed with the Provincial

Tribunal, it is incumbent upon this Tribunal to articulate the reasons clearly and fully for its

findings and order.

We begin with a detailed recitation as to how this case arose, and the steps

which led to the current controversy.

PROCEDURAL HISTORY OF THE PRESENTMENT AND MOTIONS

Three diocesan ordinary bishops of the Province, respondent bishops in this proceeding,

Bishop Todd Hunter, Bishop Kenneth Ross, and Bishop Charles Raymond Gillin, have their names

appearing at the end of a nine page, two count document which has the title PRESENTMENT

brought against The Rt. Rev. Stewart Ruch III (the “Presentment”). This Presentment charges

Bishop Ruch with Habitual Neglect of the Duties of the Bishop’s Office in Violation of Canon

IV.2.10 and Conduct Giving Just Cause for Scandal or Offense in Violation of Canon IV.2.4. The

Presentment has the digital names of those three respondent bishops, dated December 22, 2022 for

Respondent Bishops Raymond Gillin and Kenneth Ross, and dated December 23, 2022 for

Respondent Bishop Todd Hunter (collectively, the “Respondent Bishops”).

In addition to this Presentment, the same Respondent Bishops issued a one-page document,

with their digital signatures from December 24, 2022 and December 26, 2022, and which is titled

“Addendum: Signing Statement” (the “Addendum”). The complete text of the Addendum is as

follows:

Given the overall weight of the Husch Blackwell report and the nine-page

Presentment based upon the PIT’s recommendation that was presented to us, we

believe the process of adjudication should continue, even though we think there are

some potential problems in the Presentment. We trust that the Board of Inquiry will

revise the presentment where needed to be consistent with the ACNA canons, as

well as only move forward with sections of the Presentment that meet the standards

of reasonable grounds or probable cause for a trial as outlined in Canon IV.4.4 and

Canon IV.4.6.

In signing this Presentment, we do not presume guilt upon Bishop Ruch. Such a

Principle 24, Sec. 12, Principles of Canon Law Common to the Church of the Anglican Communion (2d ed. 2022).

judgement was not asked of us. We simply assert that the canonical process should

continue. We believe this is the only way to have trusted, godly outcomes for

Bishop Ruch and the various publics [sic] and stakeholders to which we owe an

answer on these matters.

On January 31, 2023, the Chancellor of the Diocese of the Upper Midwest, attorney Charles

Philbrick, Esq. delivered to the Provincial Tribunal’s presiding officer, Bishop Julian Dobbs, a

memorandum entitled a “Request for Declarations” (the “Request for Declarations”) of that date

which was signed by Bishop Ruch with his actual signature and Chancellor Philbrick’s digital

signature. This Request for Declarations challenged the legal validity of the Presentment and

Addendum and asked this Tribunal for

a declaration from this Provincial Tribunal that the “investigative process,”

including but not limited to the PIT, was non-canonical, contravened basic

principles of fairness, and denied Bishop Ruch the process that was due, rendering

the presentment invalid.

Chancellor Philbrick delivered to the Provincial Tribunal a February 2, 2023 supplement

(the “Supplemental Request”) to the January 31, 2023 Request for Declarations. These two

documents alleged objections to the December 2022 Presentment and Addendum, arguing its

invalidity under Canon IV.2, and seeking to have this Tribunal enjoin any board of inquiry from

taking any action on the Presentment. We accepted this February 2, 2023 Request for Declarations

as a petition of Bishop Ruch sufficient to begin the proceeding.

The Provincial Tribunal met on February 4, 2023. As a way of maintaining the status quo

while this dispute was resolved, this Tribunal issued ex parte the Order of the Provincial Tribunal

to Stay Proceedings of Any Board of Inquiry in the Matter of the Rt. Rev. Stewart Ruch III and

Request to Archbishop to Communicate Such Order (the “Stay Order”) under the signatures of all

seven members of the Tribunal which directed that

all proceedings of any such Board of Inquiry selected by the Archbishop are hereby

ORDERED STAYED pending our disposition of the January 31, 2023 Request for

Declarations and the February 2, 2023 Supplement submitted by respondent Bishop

Stewart Ruch III and his Chancellor.

The Stay Order was meant only to delay the seating, investigation and review of the Board

of Inquiry until the Tribunal could determine whether it has jurisdiction over the substantive issues

raised by the Petitioner and, if Tribunal has jurisdiction, rule on the causes of action asserted by

the Petitioner. Thereafter, on February 15, 2023, Chancellor Philbrick, representing Bishop Ruch,

filed with the Tribunal an Amended Petition for Declarations (“Amended Petition”) of that date

and thereafter served it along with a summons on all of the respondents captioned in this

proceeding. Per the Rules of Procedure, the Respondents had 30 days in which to serve responsive

See Rule 5(c)(3), “Pleadings are to be plain and concise. No technical forms of pleadings or motions are required.”

pleadings to Bishop Ruch’s papers. The Amended Petition pleads the following causes of action:

• whether the presentment of Petitioner Bishop Ruch satisfies the canonical

requirements of Canon IV.4.1, and dismissing the presentment if it does not

and enjoining the Archbishop from submitting the presentment and

addendum attached thereto to a Board of Inquiry (“Count I”); and

• whether the investigative process of the Provincial Investigative Team,

which led at least in part to the presentment against Bishop Ruch, was

conducted in a manner inconsistent with the Canons and the norms of

natural justice, fairness, and due process under Canon IV.5.7 (“Count II”).

The Tribunal issued a scheduling order which calendared the filing of papers in the case.

Respondent Archbishop Beach by his counsel Chancellor Scott Ward did not file an answer to the

Amended Petition of Bishop Ruch, but instead filed on or about March 25, 2023 the undated

Motion to Dismiss and Disqualify.

Bishop Ruch filed a timely answer dated April 4, 2023 to

respondent Archbishop Beach’s Motion to Dismiss and Disqualify.

Bishop Ruch’s filing opposes

the Motion to Dismiss and Disqualify but made no cross-motions. The three Respondent Bishops,

whose digital names are on the Presentment and Addendum as signers, have neither appeared nor

answered, and they have not moved or filed any papers in this proceeding. They were, however,

all served or waived service upon receiving copies of the summons and Amended Petition of

Bishop Ruch.

The Tribunal previously urged the parties to consider settling their disputes in this matter

(Matt 5:25).

Chancellor Ward’s filing references “Provincial Officers,” and mentions “the Dean of the Province, the Dean of

Provincial Affairs, and two of the Chancellors of the Anglican Church in North America.” The two bishops who

hold positions as “Dean of the Province: and “Dean of Provincial Affairs” are not attorneys, and they are not

purporting to represent Archbishop Beach in this proceeding. Their names attached as signers appears to be a

showing of their support for the Archbishop’s motions. They are not proper parties nor proper signers to the Motion

to Dismiss and Disqualify.

Both Chancellor Ward and Vice-Chancellor Garrety are attorneys, and are both representing the archbishop, and are

thus proper signers to the Archbishop’s Motion to Dismiss. The filing of Chancellor Ward on behalf of Archbishop

Beach is stated to be a “Special Appearance by Archbishop Beach and Provincial Officers.” Each and every one of

the 38 pages of Chancellor Ward’s motion has that printed at the bottom of each page, and mention is made in the

text of the motion of this “special appearance,” plus he raised this at oral argument. The motion seeks the status of

a “special appearance,” which is not recognized in US law under the Federal Rules of Civil Procedure. We as the

Provincial Tribunal decline to recognize special appearances and deem the appearance of respondent Archbishop

Beach to be a general appearance in this proceeding. This is especially so given that the Archbishop’s motions are

for many things other than for in personam jurisdiction.

Chancellor Philbrick being an attorney is representing Bishop Ruch in this matter. However, the Presentment and

Addendum being challenged by Bishop Ruch is against Bishop Ruch only, and not against Chancellor Philbrick.

Chancellor Philbrick is not mentioned in the Presentment and Addendum. As such we have here amended the

caption of this proceeding to strike Chancellor Philbrick from the caption. He is counsel for his bishop client and

not a proper petitioner.

The Tribunal set the Motion to Dismiss and Disqualify for oral argument, and oral

argument was held on May 12, 2023, with Chancellor Ward arguing on behalf of Archbishop

Beach and Chancellor Philbrick arguing on behalf of Bishop Ruch. The three Respondent Bishops

were notified of the oral argument and given the opportunity to appear either pro se or by counsel

but appeared neither themselves nor by counsel. The Tribunal thereafter met and issued this

decision and order.

RECUSAL OF MEMBERS OF THE TRIBUNAL

Respondent Archbishop Beach challenges the impartiality of four of the seven members of

the Tribunal, arguing that all four should be recused from hearing this case. The Archbishop

suggests that alternates fill the positions of the members he seeks to disqualify.

Recusal being the

determination of individual judges and not a matter for a court panel to decide, we as a Tribunal

will not address individual Tribunal members’ recusals. We do, however, take note that the four

challenged members of this Tribunal have written separately to address those challenges.

Nevertheless, we set forth here the standards individual Tribunal members use to determine

recusals.

First, there is no higher authority over a Tribunal member’s recusal, except God alone, His

Scriptures and the Constitution and Canons. Whether to recuse is an individual Tribunal member’s

decision, reviewable only by a higher court, and there is no higher court than the Tribunal.

Leviticus 19:15–16 says, “You shall do no injustice in court. You shall not be partial to the poor

or defer to the great, but in righteousness shall you judge your neighbor. You shall not go around

as a slanderer among your people, and you shall not stand up against the life of your neighbor: I

am the Lord.” The Tribunal is to be neutral toward the parties before it and to decide their cases

on the basis of the law, not personal bias or public pressure. The Principles of Canon Law Common

to the Church of the Anglican Communion articulate the principle that, “Judicial and other

members of church courts and tribunals … are to exercise their office impartially, without fear or

favour.”

There is no provision for alternates for the Provincial Tribunal, but there is for the Court for the Trial of a Bishop.

Compare Canon IV.5.2(2) with Canon IV.5.4.2. Under the canon of interpretation of expressum facit cessare

tacitum (“What is expressly done causes the invalidation of what is silent”), when something is stated explicitly in

a legal instrument, any matter omitted is presumed to have been omitted intentionally. By implication, the absence

of a mechanism to elect and seat alternates on the Tribunal is an intentional omission. Therefore, there is no authority

for the Provincial Council or any other body to appoint alternates for the Provincial Tribunal, and no alternates could

be seated in the event of recusal. This is a legislative gap, and we will not fill it. The task of legislating is left to the

Provincial Council and Provincial Assembly, not to us. Any other interpretation would effectively grant the Province

plenary powers to take any actions not explicitly prohibited by the Constitution and Canons. Such an outcome is

foreclosed in the Constitution, Article VII, § 1:

The member dioceses or networks … and those dioceses banded together as jurisdictions shall each

retain all authority they do not yield to the Province by their own consent. The powers not delegated

to the Province by the constitution nor prohibited by this Constitution to these diocese or

jurisdictions, are reserved to these dioceses or jurisdictions respectively.

Principle 24, Sec. 7, Principles of Canon Law Common to the Church of the Anglican Communion (2d ed. 2022).

ACNA Constitution provides,

There shall be an ecclesiastical court of final decision to be known as the Provincial

Tribunal consisting of seven members, both lay and clergy, who shall be appointed

by the Provincial Council on such terms and conditions as determined by canon.

The jurisdiction of the Provincial Tribunal shall be to determine matters in dispute

arising from the Constitution and Canons of the Province and such other matters

as may be authorized by canon.

(emphasis added)

There is no question, that this Tribunal, much like the Supreme Court of the United States or the

Supreme Court of Canada, is the court of final decision in the ACNA. There are no explicit

procedures in the Constitution, the Canons, or the Rules of Procedure with respect to recusals.

The Respondent’s advocacy for the adoption of United States federal statutory standards

or federal codes of judicial conduct for recusal of federal judges is misplaced.

Such secular

standards assume a basic mistrust that is not in keeping with the brotherly fellowship of members

of the Church. On the other hand, the Scriptures make clear that we are all flawed and fallen

human beings, “for all have sinned and fall short of the glory of God” (Rom 3:23). Some standards

are necessary to guide each Tribunal member’s individual assessment of his or her impartiality.

We believe that the standards under UK civil law are somewhat more compelling with

respect to recusal than U.S. law, not least because the UK law discussed here has direct bearing on

recusals in ecclesiastical trial courts in the Church of England. “To insist upon sitting when there

is real ground for doubt does a disservice to the critic: to recuse oneself because one is too ready

to admit real ground for doubt does a disservice to the critic’s opponents.”

When there is actual

or apparent bias there are grounds for recusal. Actual bias is an attitude of the mind that prevents

the judge from making an objective determination of the issues that they have to resolve.

Apparent bias may be found where “the fair-minded and informed observer, having considered the

ACNA Constitution, Art. XI, § 1 (emphasis added).

The principles of natural justice apply, which entails that, “disqualification of an adjudicator will not be permitted

to destroy the only tribunal with power to act.” Geoffrey A. Flick, Natural Justice: Principles and Applications

(London: Butterworths, 1979): 138–39; see also United States v. Will, 449 U.S. 200, 217 (1980) (28 U.S.C. § 455

does not alter the rule of necessity); ABA, Model Code of Judicial Conduct § 2.11 cmt. (“The rule of necessity may

override the rule of disqualification.”). If a majority is not present, the Tribunal cannot act. See Canon IV.5.7

(“Unless a higher standard is required by diocesan Canon for a Diocesan Trial Court, the affirmative vote of not

fewer than a majority of the members of a Court shall be required for any determination by that Court.”); Rules of

Procedure, Rule 12(a) (“The affirmative vote of not fewer than a majority of the members of the court shall be

required for any Judgment rendered.”). Recusal of all four Tribunal members the Archbishop seeks to disqualify

would be an impossibility.

See 28 U.S.C. § 455; Motion to Dismiss and Disqualify at 23.

Ghadami v Bloomfield and others [2016] EWHC 1448 (Ch), at paragraph 17.

Director General of Fair Trading v Proprietary Association of Great Britain & ORS [2000] 1 WLR 700, at

paragraph 37.

facts, would conclude that there was a real possibility that the tribunal was biased.”

The “fair-

minded and informed observer” is “the sort of person who takes the trouble to read the text of an

article as well as the headlines … neither complacent nor unduly sensitive or suspicious.”

Under

Canadian law, we note,

The onus is on the person alleging bias and the threshold for finding real or

perceived bias is high. A real likelihood or probability of bias must be shown, and

mere suspicion is not enough. There is a presumption that judges will fulfil their

oath of office, which requires a judge to render justice impartially. All judges owe

a fundamental duty to the community to make impartial decisions and to appear

impartial.

The fair-minded observer is not to be confused with the person making allegations of bias.

Whether a judge has previously dealt with other aspects of the litigation is not itself sufficient to

impute bias to a judge.

Finally, each Tribunal member is responsible for determining whether he or she should

recuse himself or herself under the standards of actual or apparent bias set forth above. As the

U.S. Supreme Court recently wrote, “If the full court or any subset of the Court were to review the

recusal decisions of individual Justices, it would create an undesirable situation in which the Court

could affect the outcome of a case by selecting who among its Members may participate.”

believe the same holds true for this Tribunal.

We, therefore, hold that recusal of Tribunal members is a determination best left to the

individual determination of each Tribunal member in accordance with the standards set forth

herein. It is not for the whole Tribunal to decide questions of recusal. The Archbishop’s Motion

to Disqualify is therefore DENIED.

Lord Hope of Craighead in Porter v Magill [2002] 2 AC 357, at paragraph 103.

Herlow v Secretary of State for the Home Department [2008] UKHL 62, at paragraphs 2 and 39 (quotations

omitted).

R v Shingatok, 2018 NWTSC 58 at para. 16 (citing S R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 SCR 484).

This case involved a criminal defendant seeking to recuse the judge who was his distant relative. The Court found

that a reasonable and right-minded person would not believe he was biased. The judge especially emphasized his

oath to duly and faithfully, to the best of his skill and knowledge, to execute the powers and trusts reposed in him.

We note that the Northwest Territories is a remote region in Canada with a small population, more akin to the

population and context of the ACNA than the one for which the U.S. Code was written.

See Harb v HRH Prince Abdul Aziz bin Fahd bin Abdul Aziz [2016] EWCA Civ 556, at paragraph 69.

See Shaw v Kovac [2017] EWCA Civ 1028 (holding that two judges on a panel of the appellant’s appeal were not

required to recuse themselves even though they were previously involved in decisions that were adverse to her).

U.S. Supreme Court, Statement on Ethics Principles and Practices, ln. 30–33.

DISCLOSURE OF ALLEGED EX PARTE COMMUNICATIONS

We are unaware of any ex parte communications about this case between the Tribunal

members and the parties to this case. Respondent Archbishop Beach has not alleged any specifics

in this regard, and this branch of his motion is merely speculative with no factual basis.

For the same reasons set forth, supra, on the matter of recusal of individual members of

the Tribunal, we leave it to the individual Tribunal members and the parties to this case to refrain

from speaking with one another about the substance of this case while it is pending. Tribunal

members, the parties, and their counsel attend worship services and other ACNA gatherings, and

there is of course, no issue with them speaking with or greeting one another at such gatherings.

Moreover, there is no basis in the law for the litigants of a case or their counsel to interrogate

Tribunal members about what they said and to whom. For the forgoing reasons, the Archbishop’s

motion to disclose communications is DENIED.

AUTHORITY TO ISSUE EX PARTE STAY ORDER

All adjudicative bodies, including the Tribunal, have the inherent authority to issue ex parte

orders to uphold the principles of fairness, due process and natural justice. Ex parte orders are

issued in exceptional circumstances. They are limited to situations in which the delay in the notice

would result in harm or where there is a concern that the other party will act improperly or

irrevocably if notice were given. Ex parte orders are issued to preserve the status quo for a short

time before both parties can be heard by the adjudicative body.

Ex parte proceedings need not

be held in camera, but where circumstances require, absent any provision in the Canons,

Constitution or Rules of Procedure, can be. In this case, the Tribunal held an in camera session

on February 4, 2023, to determine whether there were significant reasons to issue an order as

requested in the Supplemental Declaration.

In this instance, the causes of action asserted by the Petitioner in the Request for

Declarations challenged the canonical validity of the Presentment. Given the gravity of continuing

the actions of a board of inquiry that were potentially invalidly constituted under the Canons and

the potential of irreparable reputational harm to either Bishop Ruch, the Archbishop or the

Province, the Tribunal believed that the issuance of an ex parte stay order was necessary to prevent

any further harm from actions that any board of inquiry would take with respect to the Presentment

pending the outcome of the Request for Declarations from this Tribunal.

At a minimum, the requirements of fundamental justice embrace the requirements of

procedural fairness.

The factual context in which the Request for Declarations and Supplemental

Request were made created a cause for concern that the principles of fundamental justice would

not be respected and that any continuing action by any board of inquiry in this context could cause

irreparable reputational harm to either Bishop Ruch, the Archbishop or the Province. If the work

of any board of inquiry was allowed to continue before this Tribunal had the full opportunity to

hear from both parties and to make a determination, any continuance of the seating, investigation

Ruby v. Canada, 2002 SCC 75 at para 25.

R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 361.

or review of any board of inquiry could result in a continuing trespass to the principles of

fundamental and procedural fairness, which are Biblical principles vital to Christianity and the

Constitution and Canons. In addition, such trespass could cause irreparable reputational harm to

either Bishop Ruch, the Archbishop or the Province. Thus, in this instance, certain protections

were unanimously deemed required by the members of the Tribunal to protect the principles of

fundamental justice and procedural fairness to preserve the status quo as the Tribunal took the time

to hear both parties.

Thus, after prayerful consideration, the Tribunal decided that it was in the best interest of

our common Christian life and the principles of fundamental justice and procedural fairness to

issue the Stay Order to preserve the status quo. The Tribunal is still of the opinion that the order is

required until a decision on the merits of the causes of action asserted by the Petitioner can be

issued. Thus, the motion to set aside the stay order is DENIED.

JURISDICTION OF THE TRIBUNAL

The Motion to Dismiss and Disqualify challenges the original subject matter jurisdiction

of the Tribunal to hear and decide the case set forth in the Amended Petition. We begin with a

brief summation of the legislative history behind the Tribunal’s creation and jurisdiction.

In 2008, the provisional Constitution and Canons for what was to become the ACNA were

adopted. From 2008 to 2009, these documents were further refined through prayerful thought and

discussion by the Governance Task Force. In 2009, these documents were adopted as the first

Constitution and Canons of the Province.

The provisional Constitution first established the Provincial Tribunal as a “court of final

decision,” a court of review in the case of a conviction after the trial of bishops or clergy. However,

in the course of their deliberation, the Governance Task Force decided that the jurisdiction of the

Tribunal needed to be enlarged and added a grant of original jurisdiction to the Provincial

Tribunal—paragraphs (2)(a), (b) & (c) in Canon IV.5.4.1—including original jurisdiction to hear

and decide matters in dispute arising from the Constitution and Canons. Paragraph (2)(b) was

added later in 2018.

Legislation is not drafted in a vacuum but rather is informed by the context of the time.

The drafting of the ACNA Constitution and Canons are no exception. At the time when the first

Constitution and Canons were being drafted, biblically faithful Anglican clergy in the Anglican

Church of Canada and the Episcopal Church were subject to deposition, released from ministry

and had licenses withdrawn by Bishops who misused, and in some cases, manipulated, the plain

language of the disciplinary canons. There is evidence that in some cases, these events occurred

in violation of due process, without any recourse or appeal to a court of final review. Archbishop

Duncan, as he then was, convened the Governance Task Force. He and the framers of the

documents had themselves been victims of these events. There is little doubt that these events and

The legislative history is attached hereto as Appendix: Legislative History and Intent of Canon IV.5.4.1 and

incorporated fully herein.

experiences were in the forefront of their deliberations as they were drafting the documents to

govern the new Province. The intentional addition of a grant of original jurisdiction to the

Provincial Tribunal, subsequently enlarged in 2018, goes well beyond the limited jurisdiction it

was originally granted in the provisional documents and was the product of the deliberations

between 2008 and 2009. This intentional addition of original jurisdiction is no mere accident; it

was a carefully crafted jurisdiction to ensure that, should disciplinary action be required in the

ACNA, those affected would not be left without recourse or appeal in case of a dispute regarding

the interpretation of the words in the Constitution and Canons.

A. Tribunal’s Original Subject Matter Jurisdiction

The Provincial Tribunal is established by the Constitution, and its jurisdiction is “to

determine matters in dispute arising from the Constitution and Canons of the Province, and such

other matters as may be authorized by canon.”

The Canons further specify the jurisdiction of the

Tribunal at Canon IV.5.4.1 to be

(1) as a court of review in the case of a conviction after trial of a Bishop, Presbyter,

or Deacon; and (2) as a court of original jurisdiction: (a) to hear and decide matters

in dispute arising from the Constitution and Canons of the Province, (b) to hear and

decide disputes between Dioceses, (c) to hear and decide appeals by a bishop

pursuant to Canons I.3.3(d) and III.8.7(d) and (d) to issue nonbinding advisory

opinions on issues submitted by the College of Bishops, the Provincial Council, or

the Provincial Assembly. (emphasis added)

It is clear from any reading of the Constitution and this Canon that the Provincial Tribunal

has several separate and distinct grants of jurisdiction. The first grant of jurisdiction comes from

Article XI, § 1 of the Constitution, giving the Tribunal the power “to determine matters in dispute

arising from the Constitution and Canons of the Province.” That grant of jurisdiction to the

Tribunal is echoed by Canon IV.5.4.1(2) which gives the Tribunal “original jurisdiction: (a) to

hear and decide matters in dispute arising from the Constitution and Canons of the Province.”

The other grant of jurisdiction on which Archbishop Beach focuses in his Motion to

Dismiss and Disqualify is the canonical power of the Tribunal under Canon IV.5.4.1(1), which

constitutes the Tribunal “as a court of review in the case of a conviction after trial of a Bishop,

Presbyter, or Deacon.” That is not the source of this Tribunal’s jurisdiction in this case. This case,

as filed by Bishop Ruch, seeks under Count I to have this Tribunal declare whether the Presentment

and Addendum satisfy the canonical requirements of Canon IV.4.1, dismiss the Presentment and

Addendum if it does not and enjoin the Archbishop from submitting the Presentment and

Addendum to a board of inquiry. In addition, Bishop Ruch seeks, under Count II, a declaration

that the investigative process of the Provincial Investigative Team, which led at least in part to the

Presentment against Bishop Ruch, was conducted in a manner inconsistent with the Canons and

the norms of natural justice, fairness, and due process under Canon IV.5.7. The first requires the

Tribunal to interpret the Constitution and Canons and the canonical requirements for presentments

Constitution, Article XI, § 1.

and boards of inquiry. Count I presents a purely legal question arising under the Constitution and

Canons. We are required to determine whether the Presentment and Addendum meets the

requirements of the Constitution and Canons. This is squarely within the jurisdiction of this

Tribunal. Count II, for reasons discussed herein, has not been raised in the proper forum.

Unlike the jurisdiction granted for appeals by the Court for the Trial of a Bishop, which

has only the Canons as the source of the Provincial Tribunal’s jurisdiction, the jurisdiction here is

based in the Constitution itself. The Canons elaborate and flesh out the jurisdiction of the Tribunal

as set forth in the Constitution “to determine matters in dispute arising from the Constitution and

Canons of the Province.” Had Canon IV.5.4 not been adopted, this Tribunal would lack

jurisdiction to hear appeals from the Court for a Trial of a Bishop, but it still would have the

constitutional jurisdiction under the Constitution, Article XI, § 1.

Archbishop Beach argues that “[t]he Tribunal has jurisdiction only after a conviction in a

trial court of a member of the clergy and only to act as a court of review reviewing the full record

that was developed through the operations of the other canonical entities.”

The Archbishop

apparently takes the position that the enactment of the Canon making the Tribunal a court of review

for decisions by the Court for the Trial of a Bishop somehow strips the Tribunal of its jurisdiction

under the Constitution to resolve a dispute arising from the Constitutions and Canons. Clearly this

is not so. No Canon can override a provision of the Constitution. Here, the Canons actually

elaborate on the authority of this Tribunal offered by the Constitution. Canon IV, 5.4.1(2)(b)

repeats the language of the Constitution whereby the Tribunal has the authority to “to hear and

decide matters in dispute arising from the Constitution and Canons.” If this is a matter in dispute

arising from the Constitution and Canons, this Tribunal clearly has jurisdiction both under the

Constitution, as buttressed by the Canons.

Next, Archbishop Beach argues that the Tribunal’s actions contravene the text of Canon

IV.5.3 because there is allegedly no “matter in dispute” within the meaning of Title IV.

The use

of the term “matter in dispute” in the U.S. statutes, case law, and other sources is instructive,

though not binding on us, with respect to the phrase’s meaning.

The U.S. Supreme Court has

defined “matter in dispute” at one point as, “the subject of litigation – the matter upon which the

action is brought and issue is joined, and in relation to which, if the issue be one of fact, testimony

Motion to Dismiss and Disqualify at 11. Such an interpretation would render Canon IV.5.4.1(2) mere surplusage.

See Marx v. General Revenue Corp., 568 U.S. 371, 392 (2013) (“statutes should be read to avoid superfluity”); TRW

Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is ‘a cardinal principle of statutory construction’ that ‘a statute ought,

upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous,

void, or insignificant.’”); In re McBryde, 120 F.3d 519, 525 (5th Cir. 1997) (“It is axiomatic that we must construe

statutes so as to give meaning to all terms,” and “we cannot accept” a construction that renders statutory text “mere

surplusage.”). As the U.S. Supreme Court’s decision in Marx makes clear: “[T]he canon against surplusage is

strongest when an interpretation would render superfluous another part of the same statutory scheme.” Marx, 568

U.S. at 386.

Motion to Dismiss and Disqualify at 13–15.

The Archbishop cites Article III of the U.S. Constitution, which is instructive because it highlights the debates in

the framing Article III of the U.S. Constitution and the countless ways in which “arising under” was construed by

the various framers.

is taken….”

The Archbishop is correct that in some cases “matter in dispute” is used as a term

of art, but it is an expansive and flexible term used in far more contexts than the Archbishop has

cited in his Motion to Dismiss and Disqualify. He argues, “The relevant definitions and the

widespread use in specific cases of the term “matter in dispute” make clear that a “matter in

dispute” only exists when the issue has been joined between parties in an existing lawsuit.”

“Matter in dispute” does not always involve joinder of issues to a pre-existing lawsuit. Sec. 11 of

the Judiciary Act of 1789, for example, says “And [the U.S. District Courts] shall also have

cognizance, concurrent as last mentioned, of all suits at common law where the United States sue,

and the matter in dispute amounts, exclusive of costs, to the sum or value of one hundred dollars.”

Joinder is not referenced at all. It is also used in the Judiciary Act of 1789 to describe federal

diversity jurisdiction, and it does so in the context of federal courts’ original jurisdiction.

Taken

in its plain and grammatical sense, “matter in dispute” may also be used synonymously with “the

thing argued about.”

It is also used in the context of arbitration agreements in which joinder of

issue is irrelevant.

Whether or not a presentment is brought illegally against a bishop of the Church is a “matter

in dispute.” Bishop Ruch claims that the Presentment and Addendum against him is illegal.

Archbishop Beach claims that the Presentment and Addendum is legal. To decide who is correct

requires a review of the Canons and an examination of the Presentment and Addendum. This

seems to be precisely the sort of matter in dispute for which the Provincial Tribunal exists under

both its constitutional authority and its canonical authority.

If this is not a “matter in dispute,” it

Smith v. Adams, 130 U.S. 167, 175 (1889).

Motion to Dismiss and Disqualify at 14 (emphasis added). Joinder of issue “is a point in a lawsuit when

the defendant has challenged some or all of the plaintiff's allegations of fact or when it is known which legal

questions are in dispute—in other words, when both parties are accepting that the particular issue is in dispute the

"issue is joined." Usually, this point arrives when pretrial discovery is complete.” “Joinder of issue,” Legal

Information Institute, last updated June 2020.

https://www.law.cornell.edu/wex/joinder_of_issue#:~:text=Joinder%20of%20issue%2C%20is%20a,is%20joined.

%22%20Usually%20this%20point

“[T]he circuit courts shall have original cognizance, concurrent with the courts of the several States, of all suits of

a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value

of five hundred dollars, and the United States are plaintiffs, or petitioners; or an alien is a party, or the suit is between

a citizen of the State where the suit is brought, and a citizen of another State.” Judiciary Act of 1789, § 11.

“matter” means “a subject under consideration” or “a subject of disagreement or litigation” or “something to be

proved in law” (https://www.merriam-webster.com/dictionary/matter), and “dispute” means “a verbal controversy”

or “quarrel.” https://www.merriam-webster.com/dictionary/dispute.

See, e.g., American Arbitration Association, Drafting Dispute Resolution Clauses: A Practical Guide (2013): 27

(“matter in dispute” is used synonymously with “the thing the parties are arguing about”).

The proper U.S. analog is both the U.S. Constitution, Article III, Section 2, Clause 2 and 28 U.S.C. § 1251. The

U.S. Constitution provides,

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State

shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before

mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such

Exceptions, and under such Regulations as the Congress shall make.

U.S. Const. Art. III, § 2, cl. 2. The Supreme Court, prior to the passage of the Eleventh Amendment, exercised

is hard to imagine what one would be. When asked about this during oral argument, Mr. Ward

declined to give any other examples which would be matters in dispute. Yet, on its face this case

appears clearly to be such an example.

B. Count I of the Petition

The matter in dispute before us, and arising under the Constitution and Canons, is whether

the Presentment fulfills the canonical requirements for a presentment under Canon IV.4.1.

Whether the formal requirements of a presentment are met, in terms of writing, signing,

and swearing, is a narrow procedural issue but an important one and can be determined as a matter

of law. The requirements for a valid presentment are clearly set forth in Canon IV.4.1. Whether

the conditions precedent (i.e., a valid presentment) for empaneling a Board of Inquiry are met is

similarly set forth in Canon IV.4.3. Whether the Archbishop should be enjoined from submitting

this Presentment to a Board of Inquiry is a question implicating both Canons IV.4.1 and 3.

There is clearly a “matter[] in dispute arising from the Constitution and Canons of the

Province” under Canon IV.4.1 and IV.4.3. Bishop Ruch contends that the Presentment and

Addendum are invalid because they fail to meet the procedural requirements under IV.4.1, and

therefore the Archbishop cannot legally submit them to a board of inquiry. While the Archbishop

has not formally filed an answer in this case, the Archbishop has in his Motion to Dismiss and

Disqualify and at oral argument disputed almost everything that the Petitioner has alleged,

including whether this Tribunal has the jurisdiction to rule.

This Tribunal does not here take upon itself the authority to determine whether Bishop

Ruch committed any presentable offenses, or whether the allegations in the Presentment are

meritorious. With respect to a bishop, when a valid presentment has been prepared in accordance

with Canon IV.4.1, the investigation into charges and the determination about whether reasonable

grounds exist for trial are properly within the authority of the Board of Inquiry. The Tribunal is

not an investigative body, and it would be inappropriate for the Tribunal to usurp such investigative

authority. In addition, we are not usurping the original jurisdiction of the Court for the Trial of a

Bishop. If this case proceeds to a trial on the merits of the accusations in the Court for the Trial

of a Bishop, we might one day be in the position of an appellate court for that lower court finding.

original jurisdiction in Chisholm v. Georgia because the state of Georgia was a party to the case. Chisholm v.

Georgia, 2 U.S. 419 (1793). Original jurisdiction of the Supreme Court has also been invoked in Texas v. New

Mexico, 462 U.S. 554 (1983) (“In recent years, we have consistently interpreted 28 U. S. C. § 1251(a) as providing

us with substantial discretion to make case-by-case judgments as to the practical necessity of an original forum in

this Court for particular disputes within our constitutional original jurisdiction. … We exercise that discretion with

an eye to promoting the most effective functioning of this Court within the overall federal system.”) (citing Maryland

v. Louisiana, 451 U. S. 725, 743 (1981); Ohio v. Wyandotte Chemicals Corp., 401 U. S. 493, 499 (1971)).

It is also in the interests of justice and the expeditious handling of potential presentments—a requirement of due

process and natural justice—to challenge their validity before a trial is underway. To proceed to trial and conviction

only to have the conviction overturned by this Tribunal because the formal requirements of the presentment have

not been met is a supreme waste of judicial resources and more importantly, it would be a serious burden on the

accused.

We do not do that here. We will only determine whether the Presentment and Addendum

constitutes a legal presentment as required under the Constitution and Canons, whether the

conditions precedent for empaneling the Board of Inquiry have been met, and whether the

Archbishop should be enjoined from submitting the Presentment and Addendum to the Board of

Inquiry. The Tribunal, therefore, has original subject matter jurisdiction over Count I.

The Motion to Dismiss for lack of subject matter jurisdiction is DENIED with respect to

Count I.

C. Count II of the Petition

We view the issue raised in Count II like any issue that elicits evidence that is later used in

a criminal trial. The proper place to challenge the evidence elicited by the investigation is a trial

court or on appeal from the trial court’s verdict.

We do not address here, as the issue is not

before us, whether such an issue could be heard on an interlocutory appeal. While the Petitioner

facially challenges the investigation itself, it is the evidence produced by the investigation that the

Petitioner really seeks to exclude. That is a matter for the trial court, and if necessary, an appeal

to this Tribunal. We will not engage in a vague, fact-finding mission to challenge two years of

investigations with multiple reports. At oral arguments, Petitioner conceded that this issue could

be argued as a pretrial motion in Court for Trial for a Bishop.

CANONICAL ISSUE

The remaining issues upon Respondent’s Motion to Dismiss and Disqualify, which this

Tribunal faces, are twofold: (1) whether the Presentment against Bishop Ruch complies with the

requirements of a presentment under Canon IV.4.1 which states that “Such charges shall be in

writing, signed and sworn to by all the accusers....” and (2) whether the various statements made

by the three accusing Respondent Bishops, when combined with the lack of a sworn statement by

them, renders this Presentment to be in violation of the Canons of the Province.

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM – COUNT I

Since the Presentment was not sworn by any of the three Respondent Bishops, we find it

to be lacking an essential element required by Canon IV.4.1. That key element is that “Such

charges shall be in writing, signed and sworn to by all the accusers....” In this case none of the

Respondent Bishops accusers swore to the truth of the allegations in the Presentment or the

Addendum. This is a fact which is undisputed by all of the parties to this proceeding.

Some specification about the requirement that a presentment be signed and sworn by

accusers is in order. Within secular legal contexts in the United States, in general, a sworn

document, such as an affidavit, is signed and sworn in front of a witness (i.e., a notary public) who

is legally authorized to administer oaths. The signer must swear that the statements contained in

We leave to another day whether an interlocutory appeal to challenge such evidence is permissible.

At oral arguments, when posed with the potential treatment of Count II described herein, Petitioner’s counsel

admitted that Count II could be treated this way and presented no argument against such treatment.

the sworn document are true and correct. An affidavit, for example, is “a statement reduced to

writing and the truth of which is sworn before someone who is authorized to administer an oath.”

Moreover, the three Respondent Bishops all signed the Addendum, which further undercuts

the Presentment in several respects. The three Respondent Bishops stated in the Addendum that,

we think there are some potential problems in the Presentment. We trust that the

Board of Inquiry will revise the presentment where needed to be consistent with

the ACNA canons, as well as only move forward with sections of the Presentment

that meet the standards of reasonable grounds or probable cause for a trial....

(emphasis supplied).

It thus appears that the lack of swearing was not a mere clerical oversight. Rather this addendum

language seems to say that all three Respondent Bishops see “potential problems” with the

Presentment which has their digital names but to which they did not swear. Further, the three

Respondent Bishops appear to acknowledge that the Presentment as written does not “meet the

standards of reasonable grounds or probable cause.”

The three Respondent Bishops also stated in the Addendum that “[i]n signing this

Presentment, we do not presume guilt upon Bishop Ruch. Such a judgement was not asked of us.

We simply assert that the canonical process should continue.”

This statement by the three Respondent Bishops appears to indicate three things. Firstly,

they do not believe that Bishop Ruch did anything wrong or at least they do not wish to make a

statement or judgment on his guilt or innocence. If the Respondent Bishops believed that Bishop

Ruch’s actions gave rise to a presentable offense, then they would not have qualified the statement

to such an extent. Secondly, that others prevailed upon the three Respondent Bishops to sign this

with the apparently misleading implication that “the canonical process should continue” even in

the absence of the three accusers believing that Bishop Ruch did anything wrong. Thirdly, it

appears from the Addendum that there are others who presented this to the three Respondent

Bishops but did not ask of the three for any “judgment” concerning the wrongfulness of the person

who was being accused of wrongdoing.

The Presentment itself contains the following statement:

In making these Charges, the undersigned have considered documentation and

other information, some of which was provided by the team appointed by ACNA

Archbishop Foley Beach to investigate this matter, specifically the Rev. Travis

Boline, Ms. Elizabeth Conkle, the Rev. Chris Culpepper, Mr. Alan Runyan, Esq.,

and the Rev. Deacon Lisa Schwandt (the “Provincial Investigative Team – UMW”)

with the assistance of law firms Husch Blackwell and Telios Law and other

provincial representatives.

This statement is found on the first page of the nine-page Presentment before the details of the

Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir. 1985).

charges. It appears that this Provincial Investigative Team (PIT) may have given the three accusing

Respondent Bishops only “some” of the documentation from the investigation.

Given the careful way the Respondent Bishops have stated the above, it is perhaps no

surprise that they did not swear to the truth of the allegations in the Presentment. It would seem

that they acted with integrity in failing to swear to the truth of allegations to which they could not

in good conscience swear. It looks not to be a clerical error or oversight, but rather to be a genuine

concern by Respondent Bishops that this Presentment simply did not contain enough to charge a

bishop of the church with canonical violations.

Respondent Archbishop Beach argues that in filing this proceeding that “Bishop Ruch and

Mr. Philbrick are seeking to turn the investigative, Presentment, and Board of Inquiry processes

under Title IV into a ‘trial before the trial.’”

Not so. We agree with Archbishop Beach that it is

not the job of the Tribunal to interfere with the investigative part of the case, as we have stated

above. But when a valid presentment is delivered to a Board of Inquiry, the investigative stage

has moved into the accusation stage. Even then, we may not intervene if the presentment is valid

on its face in compliance with canonical requirements. Whether the grounds for the Presentment

are strong or weak are not before us, nor should they be at this point. However, whether the

Presentment against the Petitioner is a valid presentment under the Canons is properly before us.

Respondent Archbishop Beach has in his motion papers challenged the sufficiency of

Petitioner Bishop Ruch’s filing in this case. He has argued that the Amended Petition of the

Petitioner has failed to state any cause of action for this court to address. His Motion to Dismiss

and Disqualify is similar to such a motion in federal court under United States Federal Rules of

Civil Procedure §12(b)(6), which he mentions in his motion papers. We as an ecclesiastical court

are of course not under the United States Federal Rules of Civil Procedure, but Respondent has

basically made here the equivalent motion, which is an appropriate motion. However, we find the

motion to be without merit.

It does not appear on its face that this Presentment and Addendum meet the requirements

for a presentment against a bishop of the Church under Canon IV.4.1. A presentment must be

sworn by three accusing bishops who believe the facts of the presentment to be true and grounds

for bringing church discipline against a bishop under Title IV of the Canons. This gives this

Tribunal adequate reasons to deny Respondent’s motion to dismiss for failure to state a claim.

One might question why we do not dismiss the Presentment given this facial defect which

we have noted. Absent any cross-motion by the Petitioner to dismiss this Presentment, we shall

not here do so. We think it improvident for us to do sua sponte that which the Petitioner has not

by motion requested, even given the apparent defects in the Presentment as discussed, supra.

Absent a motion clearly and directly challenging the Presentment and giving the Respondent notice

of such a motion and opportunity to be heard, we take no action with respect to the Presentment,

Respondent’s Motion at 21.

except to deny the Respondent’s motion to dismiss the Petition, and to continue the Stay Order

pending further proceedings.

The motion to dismiss the Petition for failure to state a claim is therefore DENIED.

DECISION AND ORDER OF THE TRIBUNAL

The case shall move forward for further proceedings as set forth in the scheduling order of

this Tribunal, subject to any changes in that schedule as hereinafter may be made. The deadline

for the Respondent Archbishop to file an answer to the Amended Petition is June 15, 2023. The

stay of any action on the Presentment issued by this Tribunal by order of February 4, 2023 is

continued. The foregoing constitutes the decision and order of the Tribunal.

SO ORDERED

Dated: June 6, 2023

Appendix: Legislative History and Intent of Canon IV.5.4.1

The Constitution and Canons of the Province were drafted by a body called The

Governance Task Force of the Common Cause Partnership, whose Chair was the first Chancellor

of the Province, Mr. Hugo Blankingship, Jr., Esq. On December 3, 2008, the Common Cause

Leadership Council (acting as the Provincial Council for the Anglican Church of North America)

adopted a Provisional Constitution and Nine Canons for the proto-Province. The Provisional

Constitution first established the Provincial Tribunal as a “court of final decision” in Article XI:

ARTICLE XI: PROVINCIAL TRIBUNAL

There shall be an ecclesiastical court of final decision to be known as the

Provincial Tribunal consisting of seven members, both lay and clergy, who shall be

appointed by the Provincial Council on such terms and conditions as determined by

canon. The jurisdiction of the Provincial Tribunal shall be to determine matters in

dispute arising from the Constitution and Canons of the Province and such other

matters as may be authorized by canon.

The Governance Task Force met in Atlanta January 19-20, 2009, to continue work on the

Constitution and Canons, including what is now Canon IV.5.4.1. During that session a Draft for

Title IV canons on Ecclesiastical discipline were submitted on January 18, 2009, for discussion

and approval. The Draft of then Canon IV.3.4 Court of Review, contained the following language:

Section 4 - Court of Review

The Provincial Tribunal shall serve as a court of review in the case of a conviction

after trial of a bishop, priest, or deacon.

In the beginning, the Draft canon limited the Provincial Tribunal’s jurisdiction to review

of a conviction after trial of a bishop, priest or deacon. In other words, the Draft canon at this time

only addressed the appellate jurisdiction of the Provincial Tribunal. It was approved in this form

by the Governance Task Force for further comment and review on January 20, 2009.

On March 29, 2009, a member of the Governance Task Force questioned the adequacy of

draft Canon IV.3.4 under the general principles of canon law in that the draft canon did not

establish norms for review, nor specify the subject matter of the review (merits? procedures?

both?), nor the options the Provincial Tribunal has if it finds defects in such a review. He also

raised the question of who would sit on the Provincial Tribunal.

The Governance Task Force reconvened on March 30-April 1, 2009, in Herndon, Virginia

to receive and respond to this comment and many others on the January 20, 2009 Governance Task

Force Draft Constitution and Canons. On April 3, 2009, the edited draft of the Canon IV.3.4 was

renumbered Canon IV.5.4 and renamed The Provincial Tribunal, with the following addition of

and new section on the original jurisdiction of the Provincial Tribunal (in italics):

Section 4 - The Provincial Tribunal

1. There shall be a Provincial Tribunal as provided in the Constitution of the Church.

The Provincial Tribunal shall serve: (1) as a court of review in the case of a

conviction after trial of a bishop, presbyter, or deacon, and (2) as a court of original

jurisdiction: (a) to determine matters in dispute arising from the Constitution and

Canons of the Province; (b) to hear and decide disputes between dioceses; and (c)

to issue nonbinding advisory opinions on issues submitted by the College of

Bishops, the Provincial Council, or the Provincial Assembly.

This language appears in Canon IV.5.4.1 in the April 6 Final Draft of Proposed Canons for

publication, comment and review, and was subsequently certified as the text of the Canons of the

Anglican Church in North America and ratified by the Provincial Assembly at its meeting at St.

Vincent’s Cathedral, Bedford, Texas, June 22, 2009.

The grant of original jurisdiction to the Provincial Tribunal was expanded at Provincial

Council 2018, and ratified at Provincial Assembly 2019, by amendment to include a new ground

to hear interlocutory appeals by the Archbishop from a declaration of incapacity by the Executive

Committee, and by any diocesan bishop from a declaration of incapacity by a Standing

Committee.

Accordingly, the language of the original jurisdiction of the Provincial Tribunal now

reads as follows (in italics):

Section 4 - Concerning the Provincial Tribunal

1. There shall be a Provincial Tribunal as provided in the Constitution of the Church.

The Provincial Tribunal shall serve: (1) as a court of review in the case of a

conviction after trial of a Bishop, Presbyter, or Deacon; and (2) as a court of

original jurisdiction: (a) to hear and decide matters in dispute arising from the

Constitution and Canons of the Province, (b) to hear and decide disputes between

Dioceses, (c) to hear and decide appeals by a bishop pursuant to Canons I.3.3(d)

and III.8.7(d) and (d) to issue nonbinding advisory opinions on issues submitted by

the College of Bishops, the Provincial Council, or the Provincial Assembly.

The intentional addition of a grant of original jurisdiction to the Provincial Tribunal in

2009, subsequently amended in 2018 to include interlocutory appeals by the Archbishop and

diocesan bishops, goes well beyond the limited jurisdiction it was granted as a “Court of Review”

of a conviction after trial in the First Draft (Jan 2009).

We need only look at the unfolding experience of Anglicans in North America at that time

to understand the reasons for this grant of original jurisdiction. Biblically faithful Anglican clergy

in the Anglican Church of Canada and The Episcopal Church were subjected to deposition for

“abandonment of communion,” released from ministry for “renunciation of Holy Orders” and

licenses withdrawn by bishops who were misusing and even torturing the plain language of the

Church’s disciplinary canons. These abuses in Canada were documented by the Anglican Network

ACNA Constitution and Canons at 33, n. 21,

https://anglicanchurch.net/wp-content/uploads/2021/10/ACNA-

Constitution-and-Canons-June-2019.pdf,

in Canada

and by The American Anglican Council.

In the Episcopal Church alone, three bishops

and 237 clergy were deposed for “abandonment of the Communion of this church” under (then)

TEC Canons IV.9 and IV.10 for simply transferring to another church within the Anglican

Communion. In the case of the three TEC Bishops deposed (+William Cox and +John-David

Schofield in March 2008; +Robert Duncan in September 2008) multiple violations of the language

of the canon itself and its procedural requirements were documented.

In all cases, there was no

“court of final review” available for such misuse of the TEC Title IV canons.

Another seven TEC bishops were “released from the obligations of all Ministerial Offices

and deprived of the right to exercise the gifts and spiritual authority as a Minister of God’s Word

and Sacraments conferred in ordination,” under (then) TEC Canon III.12.7, and clergy as well

under TEC Canons III.7.8 and III.9.8 despite the canonically required letter of renunciation of

Holy Orders, and frequently despite written statements by those released that they were

emphatically not renouncing their Holy Orders.

During the drafting and review of Canon

IV.5.4.1, the bishops so wrongfully released included +David Bena (Jan 2008), +Andrew Fairfield

(Jan 2008), +Terence Kelshaw (Mar 2008), +Jack Iker (Dec 2008), +William Wantland (Jan

2009), +David Bane (May 2009) and +Edward MacBurney (May 2009). Again, in all cases, there

was no “court of review” available for misuse of the Title IV canons by The Presiding Bishop and

Bishops of TEC.

From this contemporaneous experience it is no wonder the framers of our Constitution

provided for a “court of final review” in the Province for such conflicts over the interpretation and

applications of the canons.

These were all “matters in dispute arising from” the canons of the

Episcopal Church. Our framers were utterly deprived of such review by the absence of a court of

final review in The Episcopal Church. It is significant that Archbishop emeritus Robert Duncan

convened the Governance Task Force, that Bishop +Jack Iker served on it, and that Bishop

+William Wantland (a renowned canonist in his own right) contributed to the drafting of our

Constitution and Canons, including Canon IV.5.4.1.

In addition, we have record evidence that the wrongful deposition of clergy, their removal

and deprivation of the ministerial office by bishops, without any recourse or appeal to a court of

final review, was on the mind of Chancellor Hugo Blankingship himself between the first and the

final draft of what is now Canon IV.5.4.1.

If that were not enough, we also have record evidence

Published January 26, 2009 and forwarded by Bishop John Guernsey to Canon Phil Ashey on Monday, February 9,

2009 at 2:47 PM ET, and through Canon Ashey to the Governance Task Force on Monday, February 9, 2009 at

3:45pm ET.

The Episcopal Church: Tearing the Fabric of the Communion to Shreds (2012)

https://americananglican.org/wp-

content/uploads/2015/09/Final-Tearing-the-Fabric-2012.pdf and The Episcopal Church: Overbearing and Unjust

Episcopal Acts (2014) https://americananglican.org/wp-content/uploads/2014/02/TEC-Overbearing-and-Unjust-

Episcopal-Acts-Feb-2010.pdf

Id. at. 3-7

Id. at 9-21

ACNA Constitution, Article XI.

Tuesday Feb 3, 2009 at 1:32pm ET from Hugo Blankingship to Phil Ashey “Phil, in your research did the AAC

determine the total number of clergy defrocked for their orthodoxy? H.” and Wednesday Feb 11, 2009 at 12:36pm

suggesting that he questioned whether the original jurisdiction of the Provincial Tribunal to issue

non-binding advisory opinions on matters of dispute arising from our Constitution and Canons

(Canon IV.5.4.1(c)) was enough.

The laws of the Church are neither written nor interpreted in a vacuum.

In the case before us, the matter in dispute arising from the Constitution and Canons of the

Anglican Church in North America includes this question: is the grant of “original jurisdiction”

to the Provincial Tribunal under Canon IV.5.4.1 exercised only upon review of a conviction from

the trial of a bishop, presbyter or deacon? Or is the grant of original jurisdiction just that—the

right to an immediate review of a matter in dispute arising from the constitution and canons of this

Province upon any one or more of the four grounds enumerated in Canon IV.5.4.1 before either a

trial or a conviction? For all of the reasons of legislative intent, history and purpose enumerated

above, and upon a plain and grammatical reading of the text that leaves no surplusage of words,

we agree with Petitioner that he has the right under Canon IV.5.4.1 to bring this dispute arising

from the requirements for valid presentments under Canon IV.4.1 before this Court.

Until this

matter is resolved by this Court, there is no condition precedent under our Canons for the

Archbishop to even empanel a Board of Inquiry.

ET from Hugo Blankingship to Phil Ashey: “Our bishops and clergy were all ordained in an Anglican church

claiming to be and recognized as legit member of the Communion. They are now attached to a legit Province or

diocese of a legit member of the Communion. Most all have been deposed as having “abandoned” the Communion.

That status is not recognized by the receiving “lifeboats” …”

April 2, 2009 Memorandum from Hugo Blankingship by email to the Governance Task Force (CCP) Clean-up group

and Title Team captains: “Here are some comments for your consideration…Title IV Canon 5, Section 4(1)I Do we

want the opinions to be “non-binding” in every case? Big issue” (emphasis added).

See Marx, 568 U.S. 371, 386 (“the canon against surplusage is strongest when an interpretation would render

superfluous another part of the same statutory scheme.”). “[T]he canon against surplusage ‘assists only where a

competing interpretation gives effect to every clause and word of a statute.’” Id. (quoting Microsoft Corp. v. i4i Ltd.

P’ship, 564 U.S. 91, 106 (2011)).

ACNA Canon IV.4.1, 3: “The Archbishop upon receipt of a presentment under Section 1 or of a demand under

Section 2 shall select a Board of Inquiry…”

PROVINCIAL TRIBUNAL

ANGLICAN CHURCH IN NORTH AMERICA

Bishop Stewart Ruch, III,

Petitioner,

Archbishop Foley Beach,

Bishop Todd Hunter,

Bishop Kenneth Ross, and

Bishop Charles Raymond Gillin,

Respondents.

CONCURRING OPINION

PT-2023-1

CONCURRING OPINION

BY BISHOP JULIAN M. DOBBS, BISHOP CLARK LOWENFIELD,

RAYMOND J. DAGUE AND CANON PHIL ASHEY

We concur and join in the unanimous decision issued by the tribunal. We especially take

note of the portion of our decision and order under the heading RECUSAL OF MEMBERS OF

THE TRIBUNAL. As those to whom respondent Archbishop’s counsel has directed some

comments by name, we write here separately to address the suggestions to the effect that we four

members of the Tribunal ought to recuse ourselves from this case and the motion to remove us

styled as the “Move to Disqualify Them.” We do not recuse ourselves for the reasons set forth in

the unanimous decision and order of this tribunal, supplemented by the following reasons.

None of the four challenged members of this Tribunal have ever represented Bishop Stuart

Ruch in his dispute with this investigation nor in his opposition to this presentment.

Respondent notes that one of the challenged members of this Tribunal, Raymond J. Dague,

a New York attorney, is the attorney for two clergy who are canonically resident in the Diocese of

the Upper Mid-West. He is also counsel for the Greenhouse Movement, which is part of that

Diocese. The presentment which is the subject of this proceeding is against Bishop Stuart Ruch,

and not against any of the clergy in his diocese, not against the Greenhouse Movement, and not

against the diocese. To say that he must recuse in such a situation is akin to saying that a lawyer

must recuse himself as a judge in any case involving the New York governor because he has

previously represented people who are residents and citizens of New York State. If that were so,

no New York lawyer could ever be a judge in New York in any case involving the governor.

Respondent challenges another two of the members on this Tribunal, Bishops Julian M.

Dobbs and Clark W.P. Lowenfield. Both of these bishops have a cordial and a pastoral relationship

with Bishop Ruch. They also know the respondent Archbishop well, and interact with him

regularly, as do all of the bishops of the church. ACNA is a small group, and many of the bishops

interact with one another in pastoral ways. All of the bishops of the province have taken oaths of

obedience to the Archbishop. By the same logic, any bishop could be claimed to have a conflict

of interest, and hence ineligible to serve on this Tribunal. The judicial resources of this Province

are quite small compared to the judicial resources of the United States or Canada. If judges could

be as freely removed as respondent suggests, it would paralyze the Provincial Tribunal. The

Constitution of the Province requires two bishops be members thereof. To remove all of the

bishops damages the constitutional framework set up for this Tribunal.

Another member of the Tribunal, attorney Canon Phil Ashey, did canon law work for the

Diocese of the Upper Mid-West to improve their canons. His client was the diocese, and not

Bishop Ruch. Moreover, the allegations in this presentment are unrelated to the diocese and have

nothing to do with the legal work he did for the diocese. This presentment alleges things against

Bishop Ruch, and not against his diocese.

Respondent Archbishop cites 28 U.S.C. § 455 on recusal. While we as an ecclesiastical

court are not bound by this provision of the United States statutes, comments on the US federal

statues are perhaps in order since counsel has raised it arguing that the reasoning of the statute

should be accepted by this Tribunal. But this statute deals solely with the determination of a judge

to disqualify himself and has does not have any provision for the removal of a judge by any other

means. Hence the “Motion to Disqualify” is not supported by this statute.

We likewise have

declined to accept any motion to disqualify any member of this panel. It is not the role of a judicial

panel to decide recusal, but is rather the decision of each judge on the Tribunal.

It is curious that counsel asserts that judges of this Tribunal should be disqualified for

alleged bias, but then declares that this rule does “not apply to those who have been participating

in, overseeing, or managing the investigative and evaluative process.”

The same is true for 28 U.S.C. § 144, also cited by respondent’s counsel. Id. at 24, fn. 18. That statute is not

applicable to our ecclesiastical court. But even if it were applicable, that statute provides only for self removal by a

judge. The statute by its own language does not authorize any motion for removal of a judge.

Recently in the United States there has been pressure for justices of the US supreme court to recuse based on

allegations of bias. The Democratic majority leader in the senate invited Chief Justice Roberts to address the senate

judiciary committee on this subject. In declining the invitation, the chief justice wrote a letter dated April 25, 2023

to the committee and included with his letter a three page Statement on Ethics Principles and Practices. The

document noted several points. These points are not legally binding on our ecclesiastical court, are perhaps

persuasive on account of the reasoning used. Recusal in the supreme court, the Statement notes, is necessarily

different than in lower courts where when one judge recuses himself, another can be substituted. This cannot happen

in the US supreme court. Recusal decisions for a court without alternates is necessarily more limited than for other

courts which have provisions for alternates. If recusal were used in such a way, it could result in deciding a case by

selecting the panel members who sit on the case. Recusal is not a matter of the court deciding, but rather the decision

to recuse or not is left to the individual justices of the court. See, Statement at 2, lines 19-33.

See respondent Archbishop’s Motion to Dismiss and Dismiss at 24, fn. 17.

It is troubling that respondent Archbishop Beach seeks to disqualify four out of seven

judges of this Tribunal, especially when it takes a majority vote of the Tribunal for any decision.

If four judges were removed, it would be impossible for the Tribunal to act. While the court for

the trial of a bishop has a canonical provision for alternates, the canonical provisions for this

Tribunal omits any provision for alternates. That omission would seem to be deliberate, and not

by accident, as the appendix to our opinion shows in the review of the legislative history for the

adoption of the provisions in the canons for the Provincial Tribunal.

As such none of the four challenged members of this Tribunal have recused themselves

from consideration of this case.

Dated: June 6, 2023