Yes, Bishop Bruskewitz is right

Over at his blog, Dr. Ed Peters is asking whether Bishop Bruskewitz is right to refuse compliance with USCCB’s review board. In a nutshell, the answer is yes. Dr. Peters might be a canonist, but so are Bishop Bruskewitz and Msgr. Thorburn (the Bishop’s close advisor, closer friend and Vicar General.) In fact, both of these individuals were accomplished canonists before finding themselves in their current ecclesiastical office.
Now the tone of the good Bishop’s letter is admittedly a tad combative, but this is more a matter of pastoral theology than canon law.
That being said, Peters appears to overlook the principles of canon law (and in this case the Divine law) that the Bishop is trying to uphold. The first is a very fundamental principle of natural justice: Every accused has the right to face his accuser. (See my blog entry above).
The Bishop has repeated asserted that the audit, as it is currently structured, violates this fundamental principle of justice. Having read the text of the John Jay questionaire myself, it appears to me (and I’m a canonist too) that the Bishop is right. Simply put, beyond other weaknesses that call into question the audit’s methodology, the questionaire does not allow for an accused priest to defend himself.
I suspect this is why everyone keeps griping about Bruskewitz, but nobody actually challenges his “non-compliance” before the Roman Rota or the Congregation for Bishops. The universal law provides these two options for bringing about the correction of wayward bishops.
This is not the first time Bishop Bruskewitz has found himself in the middle of a controversy. This wouldn’t be the first time his actions were challenged in Rome. Bishop Bruskewitz has always maintained he would willingly submit to the Holy See’s decision if over-ruled in Rome.
I believe that the Bishop is a man of his word, however, this has never been put to the test. Why? Because the Holy See has always upheld his controversial actions/decisions.
Secondly, it is a matter of the Divine law that Christ instituted His Church as a hierarchy. Within this hierarchy, laypeople submit to Bishops, not Bishops to laypeople. No merely ecclesiastical law — including the particular law establishing the national review board and its various derivatives — can contradict the Divine law.
This is why the charter (at least the version given recognitio by the Holy See) establishes the review board and its derivatives as merely consultative. They have no binding power over any bishop. This is clear in the text of the charter itself. In fact it was clearly worded this way, at the Holy See’s insistance, after some Bishops tried to give away too much power in the first couple of drafts. (Which is what got the bishops in trouble in the first place; many more-or-less abdicated their responsibilities to psychologists and other lay experts).
Here’s a sampling of the text itself. Please note the words in bold:

Article 8
…The Committee is to advise the USCCB on all matters related to child and youth protection and is to oversee the development of the plans, programs, and budget of the Office of Child and Youth Protection. It is to provide the USCCB with comprehensive planning and recommendations concerning child and youth protection by coordinating the efforts of the Office and the National Review Board…
ARTICLE 9.
The Office for Child and Youth Protection, established by the Conference of Catholic Bishops, is to staff the Committee for the Protection of Children and Young People and be a resource for dioceses/eparchies for the implementation of “safe environment” programs and for suggested training and development of diocesan personnel responsible for child and youth protection programs, taking into account the financial and other resources, as well as the population, area, and demographics of the diocese/eparchy…
ARTICLE 10.
The Committee for the Protection of Children and Young People is to be assisted by the National Review Board, a consultative body established in 2002 by the USCCB…
The Board will also advise the Conference President on future members…

While the Bishop may not be in compliance with the national review board, he is in compliance with canon law — both universal and particular. He has heard the advice of the Review Board and its various derivatives, and he has chosen to reject it where he feels their advice conflicts with his obligation as a Bishop to uphold the natural principles of justice. He has also defended the proper role of the episcopacy against those who would attempt to usurp it.
Put another way, what is particular law is the implementation of the national review board as outlined in the charter. The charter clearly establishes the national review board as a consultative body with no actual coercive power over bishops.
Here is a third issue. Does Bishop Bruskewitz deny, in the words attributed to him, that the national review board and its derivatives have any standing under canon law? While his words admittedly appear to be those of understatement, ridicule and scorn, it seems to me that the answer is no when one looks at the actual words he uses. The Bishop is strait-shooter, but he is also a good canonist. You can bet he carefully crafted his comments.
Here’s a line-by-line analysis.

Some woman named Patricia O’Donnell Ewers,

While not the most polite tone, I assume the bishop has correctly identified the name and gender of his accuser. It may be rude, but it is neither heretical nor schismatic.

who is the Chair of something called “A National Review Board for the Protection of Children and Young People”,

Similar to above. His tone may be one of understatement and ridicule, but he seems to have correctly identified her title. The national review board is “something”.

has said that her Board “calls for strong fraternal correction of the Diocese of Lincoln.”

True. This is what her board is calling for.

The Diocese of Lincoln has nothing to be corrected for,

I personally believe this is true, as does every other canonist with whom I have discussed the Bishop’s reaction to the national review board over the years (Dr. Peters being the only exception). Nevertheless, this appears to be the source of the controversy. As previously stated, the universal law provides the means for correcting wayward bishops. Let a canonist who disagrees with the Bishop take up the cause in Rome.

since the Diocese of Lincoln is and has always been in full compliance with all laws of the Catholic Church and with all civil laws.

Again, I believe this to be true. Note that Bishop Bruskowitz didn’t say “in full compliance with all the recommendations of the national review board and/or its derivatives.” This is not necessary since the board enjoys no legislative power; it was established in particular law as strictly an advisory board. If Bishop Bruskewitz is not in compliance with canon law or civil law, then please show me where.

Furthermore, Ewers and her Board have no authority in the Catholic Church

This is not how I would have worded it, but the statement is true. The board is advisory. This is clear from the charter. It is a matter of particular law. The board cannot bind a bishop.

and the Diocese of Lincoln does not recognize them as having any significance.

Brilliantly subjective. His Excellency does not say that he does not recognize the board; he simply states that he does not recognize the board as having any significance. Like any good canonist, he left himself some wiggle room.
[snip text which, although true, is irrelevant to controversy at hand, namely whether the Bishop is subject to the board]

The Diocese of Lincoln does not see any reason for the existence of Ewers and her organization.

Same as above. I agree with Amy Welborn that the Bishop should have made it clear he was not speaking of Ewers personally. I also think the tone is somewhat strong. I think this was a “teachable moment” and the Bishop should have used a more gentle tone to reach a broader audience rather than a New Oxford Review tone that distracts from the substantive issue being debated.
Nevertheless, this is a matter of pastoral theology and not canon law. And since my expertise is in the latter and not the former, I will leave the tone for pastoral theologians to debate.
The Bishop’s statment is again subjective. He is expressing an opinion. He does not deny the board’s existence or its mandate under canon law. He simply states he does not see the reason for it. He is well within his canonical rights to do so.
In the end, canon law — both universal and particular — is clearly on the side of Bishop Bruskewitz. The national review board may be a matter of particular law, but so are its limitations.