Chapter 10

The Limits of Judicial Power--”Judicial Legislation” is an Oxymoron


Chapter 10 underscores points made, or alluded to, in several chapters of the book and in this synopsis—our system of government (in Maine and the nation) constitutionally provides for the separation of powers into three branches, i.e., the legislative, the executive and the judicial. An early Maine case, Ex parte Davis notes:

“The first was to pass laws, the second to approve and execute them, and the third to expound and enforce them…Each of the three departments being independent, as a consequence, are severally supreme within their legitimate and appropriate sphere of action. All are limited by the Constitution. The judiciary cannot restrict or enlarge the obvious meaning of any legislative act….”

The Bell cases simply ignore these separation of powers principles. They ignore any number of Maine and Supreme court cases holding that publicly held lands (trust property) can only be alienated by a Parliament or a Legislature; they ignore the fact that the Storer and Alger cases alienating/ceding all intertidal land in Massachusetts to upland owners do not rest on any legislative enactment; that they rest on nothing more than a “judicial usage.” In the Bell courts zeal to impose Massachusetts’ intertidal land law on Maine, they erroneously embrace an earlier Maine case, Barrows v. McDermott, which sought to gloss over the absence of any legislative predicate for its holding by characterizing Storer and Alger as “a piece of judicial legislation.” The Bell courts seize on this phrase, but they ignore what Barrows was prepared to admit, i.e. that a judicial holding has the force of law only “… until it shall have been changed by the proper law making power,” i.e., the Legislature. The Bell courts ignored the 1975 Submerged Lands Act, and the 1981 amendment thereto, that Barrows would have deferred to. These enactments delineated ownership rights to Maine’s intertidal lands, but the Bell courts would have none of it. They steadfastly cling to the view that “a piece of judicial legislation” may alienate all of Maine’s intertidal land. Such a view is error. It violates separation of power provisions in the Maine Constitution; the phrase on its face is an oxymoron.