UMNS photo by Mike DuBose.
Reaction to Ruling on Plan UMC
The Judicial Council's last-minute ruling on Plan UMC shocked the 2012 General Conference delegates and spurred legislation for the 2016 session that would allow delegates to override the UMC's high court's decision.
A United Methodist Insight Exclusive
Should General Conference – the only body that can speak for the entire United Methodist Church – have the authority to overrule decisions by the Judicial Council, the denomination's "high court" charged with determining the constitutionality of legislation? The Association of Annual Conference Lay Leaders thinks so, but as both an attorney and a United Methodist, I have serious concerns about this petition on both practical and polity grounds.
The conference lay leaders' Petition 60514 can be found at page 415 of the Advance Daily Christian Advocate, the official journal of General Conference. The legislation proposes to amend the Constitution, (paragraphs 16 and 56) to allow General Conference to override Judicial Council declarations of unconstitutionality. The rationale stated in petition 60514 suggests the following: “Six members of the Judicial Council have authority to declare any decision of General Conference to be unconstitutional. Unlike secular processes in which lower courts make constitutional decisions, there is no other body of the Church with such authority. Enacting this proposal would provide a check on such unlimited power.” It is true that no other body has such authority. But that was exactly the purpose of creating a Judicial Council.
History
Scholar Thomas Edward Frank outlined the history of the Judicial Council in his text Polity, Practice, and the Mission of the United Methodist Church. He noted that the different legacy denominations of the UMC dealt with constitutional matters differently. Both the early Methodist Episcopal Church, South and the Evangelical United Brethren Church allowed bishops to decide the constitutionality of General Conference legislation, providing primacy for the episcopacy. Before merger in 1939, the Methodist Episcopal Church referred questions of constitutionality to a committee of General Conference, reflecting its higher view of the authority of General Conference, to which even the episcopacy should bow. Frank noted, however, that “gradually voices were raised against the power of General Conference to rule on its own actions.”
By 1934, voices in the MECS had similarly become more critical of the power of bishops to block General Conference actions and created a Judicial Council to consider constitutional questions. Upon the formation of The Methodist Church in 1939, and merger of The Methodist Church and the Evangelical United Brethren Church in 1968, inclusion of a Judicial Council as a constitutional body recognized and attempted to mediate the tension between these primary bodies of the new UMC (conferences and the episcopacy).
Additionally, Frank noted two additional problems addressed by the creation of Judicial Council: (1) increased questioning of authority figures and (2) increasingly technical and complex legal issues that were too involved for a legislative body to effectively adjudicate. Those issues are still relevant today.
Response to the proponents’ rationale
One of the stated rationales for petition 60514 is that the UMC doesn’t have lower courts. That is true, but it is also irrelevant. Lower courts in the United States do make decisions about constitutionality of statutes, but when a state or federal supreme court reviews lower court decisions, they do not give any deference to the lower court. Appellate courts determine such questions de novo (a legal term meaning "for the first time"). And some jurisdictions do allow for immediate declaratory judgments regarding the constitutionality of some legislation. But in every case where an appellate court reviews a statute for constitutionality, it is (hopefully) done in a neutral and detached fashion, after thoughtful review of arguments and deliberation. Petition 60514 would place this decision in the legislative process, intertwined with the merits of the legislation.
Practical problems
There are only two ways that the proposed override could be used, very quickly or very slowly. Neither seem very practical or advisable.
The first possibility is that the Judicial Council rules on legislation while General Conference is still in session, so that immediate override would be possible. This would be like when Plan UMC was ruled unconstitutional near the end of the 2012 General Conference. Under Petition 60514, in a very rushed procedure and with emotions running high, delegates would be called upon to try to digest possibly complex Judicial Council decisions and discern correctness with regard to constitutionality. Instead of a detached and deliberative process, the question would be intertwined with delegates’ views of the merits of the legislation and not just its constitutionality. It seems unwise and unwieldy to subject such complex decisions to a rushed and potentially heated process. Instead, as Frank noted, such final decisions are wisely placed in a “separate body that could concentrate all its energies on legal issues.”
The second possibility is that the Judicial Council rules on legislation after General Conference has adjourned, often in the fall after General Conference. In this case, a potential override is 3 ½ years away, with a different General Conference. Circumstances may have changed substantially in the interim, and many of the General Conference delegates will have changed in the interim. Seeking override after such a long period of time also seems impractical.
Polity problems
More fundamentally, I think this proposal undervalues our balanced and constitutional polity system. A commentator to the AACCL proposal noted the following: “Contrary to the U.S. system of governance UM polity gives the authority to speak for the UMC solely to the General Conference. It is against the stated intent of our fundamental polity for the Judicial Council to have the last word.” Actually, as noted in Frank’s history, the power of a separate Judicial Council to rule on constitutionality was an explicit and negotiated aspect of UMC polity, reflecting the Uniting Conference’s planned separation of powers between the episcopacy and the General Conference. The current system already provides some deference to General Conference by requiring a super-majority of the Judicial Council to agree before it can hold that legislation is unconstitutional. Petition 60514 would tilt the compromise made upon the creation of the UMC in clear favor of General Conference.
In our current constitutional system, neither the General Conference nor the episcopacy nor the Judicial Council have the “last word”; the Constitution (ratified through General Conference and the members of the Annual Conferences) has the “last word.” The Judicial Council’s function (in fact their primary function in this regard) is to discern the meaning and application of the Constitution. A proposal that would allow General Conference to decide if its own legislation is constitutional would significantly undercut the authority of the Constitution itself, rebalance authority between the episcopacy and the General Conference, and intertwine the legislative function and that judicial function. Essentially, this result of this petition would be that the Constitution would mean whatever General Conference said it meant. That’s not a Constitution, those are by-laws.
I am not suggesting that the Judicial Council or any of its particular decisions are above criticism. But any system that purports to be a legitimate Constitutional system has to have some person or body dedicated to impartially deciding complex questions of whether legislation is constitutional. The Constitution, if it is to be a constitution, must limit General Conference.
Attorney Randall Hodgkinson serves as the Topeka, Kansas, District Lay Leader of the Great Plains Annual Conference encompassing Kansas and Nebraska.