Intellectual Indifference—Intellectual Dishonesty: The Colonial Ordinance, The Equal Footing Doctrine, and The Maine Law Court

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 majority refused to examine, in the detail necessary, 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 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 considerable detail in defendants' briefs and in the briefs of amicus curiae filed on behalf of the public's interest as represented by the defendants 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 perhaps forever, lost. The limited objective of this paper then is to look at certain aspects of only two of the many issues before the court in this most recent Bell case, 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.