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THE COLONIAL ORDINANCE, the EQUAL FOOTING DOCTRINE, and the MAINE LAW COURT Orlando E

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THE COLONIAL ORDINANCE, the EQUAL FOOTING DOCTRINE, and the MAINE LAW COURT Orlando E INTELLECTUAL INDIFFERENCE-INTELLECTUAL DISHONESTY: THE COLONIAL ORDINANCE, THE EQUAL FOOTING DOCTRINE, AND THE MAINE LAW COURT Orlando E. Delogu* INTRODUCTION Perhaps the most disappointing aspect of the recent Bell' decision was the fact that it was 4-3, that significant public interests were lost because a bare majority2 refused to examine, in the detail neces- sary, the Colonial Ordinance, old and new United States Supreme Court cases, Maine law, or the reasoning of their own colleagues who filed a compelling dissenting opinion 3 in the case. A mere recitation of the dissenting opinion would serve no useful purpose-it is a part of the public record; its rationale speaks for itself. Had the rationale of the dissent been adopted by the majority it would have provided a sufficient basis for recognizing and protecting contemporary public use rights in the foreshore and for balancing sometimes competing public and private interests in this critical area. Nor does it seem particularly useful to set out or to reexamine the variety of legal theories that would have achieved these same ends had any one of these theories been embraced by the majority. For those who are interested these arguments are laid out in considera- ble detail in defendants' briefs and in the briefs of amicus curiae filed on behalf of the public's interest as represented by the defend- ants in this case. Finally, it serves no useful purpose to attempt to lay out all of the arguable errors of omission and commission in the majority opinion. Suffice it to say that if even one of these errors had been perceived and confronted squarely by even one justice who voted in the majority, great public interests might still exist and be protected today in Maine. As it is, these interests are now, and per- haps forever, lost. The limited objective of this paper then is to look at certain as- pects of only two of the many issues before the court in this most * Professor of Law, University of Maine School of Law, B.S., 1960, University of Utah; M.S., 1963, J.D., 1966, University of Wisconsin. 1. Bell v. Town of Wells, 557 A.2d 168 (Me. 1989) (Bell I1). 2. Chief Justice McKusick wrote the opinion of the court and was joined by Jus- tices Glassman, Hornby, and Collins. 3. Justice Wathen wrote the dissenting opinion, joined by Justices Roberts and Clifford. MAINE LAW REVIEW [Vol. 42:43 recent Bell case,4 i.e., aspects of the intent of the Colonial Ordinance and issues surrounding the equal footing doctrine. The majority's treatment of these issues was cavalier at best, indifferent to the point of intellectual dishonesty at worst. In either case we are left with bad logic, bad law, and bad social and public policy. I. THE BELL II MAJORITY ERRED IN FAILING TO EXAMINE THE INTENT OF THE COLONIAL ORDINANCE AND IN ITS INTERPRETATION OF THE SCOPE OF PRIVATE AND PUBLIC RIGHTS BEFORE AND AFTER ADOPTION OF THE ORDINANCE The failure of the majority to examine or to appreciate the intent and purpose of the Colonial Ordinance as it pertained to competing and sometimes conflicting private and public interests in the fore- shore, and to carry out that intent in a way that maximized the pri- vate benefits conferred without significant damage to or destruction of reserved and preexisting public use rights, was the central error of the Bell II decision and the earlier Bell I case.5 This error is all the more egregious because the issues of "intent and purpose" were ad- dressed repeatedly by courts and scholars in the critical jurisdiction, Massachusetts-critical in the sense that the Bell II majority felt constrained to follow these precedents in much of their own analysis and reasoning.8 In many instances, the very cases cited by the ma- jority contained passages that spoke to "intent," the relationship of private rights to public rights in a foreshore, and the "trust" duty of 4. Bell II was preceded by Bell v. Town of Wells, 510 A.2d 509 (Me. 1986) (Bell 1) which disposed of certain procedural aspects of the case. Though the ultimate conclu- sion of the court in Bell I, allowing plaintiffs to proceed through a quiet title action to test the scope of their rights in the intertidal zone, is correct, the court's reasoning (which at one point characterizes the plaintiffs, not the state, as trustees of public use rights in the intertidal zone, id. at 517) is suspect. Moreover, the Bell I court's will- ingness to explore, in dicta, a wide range of historical and legal issues not properly before the court-issues that went to the merits of a case that had not yet been tried-seems both erroneous and unfortunate. The error, it turns out, is not only one of judicial technique, but also one of substance, in that some statements made in dicta are flatly contradicted by United States Supreme Court holdings. Compare e.g., Bell I, 509 A.2d at 511 n.5 and accompanying text, with Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 477 (1988), including note 7. The unfortunate dimension of the Bell I dicta is that they weighed so heavily on the trial court (influencing both the trial itself and the Superior Court's decision and reasoning) and shaped, without be- ing subjected to critical analysis, much of the Bell II court's thinking. 5. The majority's error in Bell II is more glaring and inexplicable in light of the fact that the first case they cite in discussing the Colonial Ordinance, 557 A.2d at 171, is Storer v. Freeman, 6 Mass. 435 (1810), which contains a full account of the circum- stances and motive for enacting the Ordinance. See infra notes 12 & 14 and accompa- nying text. 6. See, e.g., Bell II, 557 A.2d at 175: "In these circumstances, the three unanimous Massachusetts opinions, addressing the precise issue here raised in Maine for the first time, are persuasive precedent in the case at bar." 1990] EQUAL FOOTING DOCTRINE government to protect the public's use rights.7 It is both erroneous and intellectually dishonest to rely on these cases to arrive at the majority's conclusion without acknowledging or discussing, much less distinguishing or discrediting, the language in these cases that puts the Colonial Ordinance in a different perspective-a perspec- tive that many would argue is much nearer the historical truth and the balance between public and private interests in the foreshore that existed then and ought to exist today.' On the question of "purpose and intent", for example, a recent Massachusetts case (not cited in the majority opinion), Boston Wa- terfront Development Corp. v. Commonwealth,9 stated bluntly, "The main object of the Massachusetts Colony ordinance has always been understood to be to induce the erection of wharves for the ben- efit of commerce."10 The Boston Waterfront court discussed the is- sues of purpose and intent of the Colonial Ordinance extensively, relying on several earlier cases."1 One of these is Storer v. Free- man,12 a case frequently cited by the Bell I1 majority. The Storer court noted: When our ancestors emigrated to this country, their first settle- ments were on harbours or arms of the sea; and commerce was among the earliest objects of their attention. For the purposes of commerce, wharves erected below high water mark were necessary. But the colony was not able to build them at publick [sic] expense. To induce persons to erect them, the common law of England was altered by an ordinance, providing that the proprietor of land ad- joining on the sea or salt water, shall hold to low water mark 14 7. In addition to Storer, supra note 5, the majority cited Commonwealth v. Alger, 61 Mass. 53 (1851); Shively v. Bowlby, 152 U.S. 1 (1894); Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988). Bell II, 557 A-2d at 171-72. 8. The Bell II majority also simply ignored many other Massachusetts, Maine, and U. S. Supreme Court cases, called to its attention by defendant or amicus briefs, that dealt with these same issues, but in a manner at odds with the majority's predis- positions and conclusions. See, e.g., Brief of Amicus Curiae at 47, Bell H1 (No. YOR- 87-430) (citing Illinois Central R.R. Co. v. Illinois, 146 U.S. 387 (1892)); id. at 49 (citing Boston Waterfront Dev. Corp. v. Commonwealth, 378 Mass. 629. 393 N.E.2d 356 (1979)); id. at 50 (citing Commonwealth v. Inhabitants of Charlestown, 18 Mass. 180 (1822)); id. at 51 (citing Parker v. Cutler Milldam Co., 20 Me. 353 (1841)). This failure to treat these cases that had been brought to their attention, that are clearly relevant, reflects a lack of candor on the part of the Bell H majority. 9. 378 Mass. 629, 393 N.E.2d 356 (1979). 10. Id. at 636, 393 N.E.2d at 360 (quoting Commonwealth v. Roxbury, 75 Mass. (9 Gray) 451, 515 (1857)). 11. Boston Waterfront Dev. Corp. v. Commonwealth, 378 Mass. at 631-37, 393 N.E.2d at 358-61. 12. Id. at 634-35, 393 N.E.2d at 359 (citing Storer v. Freeman, 6 Mass. 435 (1810)). 13. See supra note 5. 14. Storer v. Freeman, 6 Mass. at 438 (emphasis added). MAINE LAW REVIEW [Vol. 42:43 In Shively v. Bowlby,15 the United States Supreme Court noted on the question of the intent of the Colonial Ordinance, "The govern- ments of the several Colonies, with a view to induce persons to erect wharves for the benefit of navigation and commerce, early allowed to the owners of lands bounding on tide waters greater rights and priv- ileges in the shore below high water mark, than they had in Eng- land.
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