Are We Headed Towards Decisions That Are Only Kinda Precedential?


It was a busy day Tuesday over at the Law Court with a full slate of oral arguments and the issuance of seven new published decisions and two Mem Decs. One decision in particular, Riffle v. Smith, 2014 ME 21, caught my attention.

At issue in Riffle was whether the plaintiffs had acquired a prescriptive easement over their neighbors’ property. The Superior Court found that the plaintiffs had established that they continuously used the land in question in an open and notorious way for more than 20 years and that the neighbors had failed to rebut the resulting presumption of adversity. As a consequence, the court entered judgment in the plaintiffs’ favor on their prescriptive easement claim.

In Androkites v. White, 2010 ME 133, the Law Court recognized an exception to the presumption of adversity when the competing estates are owned by members of the same family during the prescriptive period – the thought being that the comings and goings of family members across each other’s properties are, in the usual case, permissive. Drawing on this precedent, the neighbors in Riffle argued that friendly neighbors should be treated similarly to family members and urged the Court to adopt a “friendly-neighbor” exception to the adversity presumption. The Court, however, passed on the opportunity to adopt or reject the proposed exception because the Superior Court did not find that a friendly-relationship existed during the relevant period and the record did not compel a finding that such a relationship existed.

In contrast to the situation presented in Tisdale v. Buch, 2013 ME 95 (discussed in an earlier post, here), the issue the Court “ducked” – for lack of a better word – in Riffle was not one that appears to have come up before, let alone one that has come up with some regularity over an extended timeframe, so concerns about finally putting to an unsettled legal question to bed are not particularly compelling. Moreover, a Court might reasonably be reluctant to plow new legal ground when the record presented does not allow for a full consideration of the issue (perhaps that is the case here where the neighbors represented themselves pro se). I can see then why the Court may have concluded that perhaps Riffle didn’t present the right opportunity to consider expanding Maine law.

What has me curious, however, is why the Court saw the need to issue a published opinion to dispense with the case, particularly given the fact that the legal analysis in the opinion wasn’t appreciably more developed (because it didn’t need to be) than what one would expect to find in a typical Mem Dec.  The only thing I can think of is that perhaps the Court is interested in considering the “friendly-neighbor” exception and wants to signal that interest to the Bar – something it can’t do as readily in an unpublished Mem Dec.  If that’s the case, why not just do it in a signed opinion instead of resorting to a per curiam?

As noted in a previous post on the subject, my view is that it is inappropriate for courts to issue published decisions on a per curiam basis. But my specific concern with decisions like Riffle is that published per curiam decisions will come to be viewed as having less precedential value than other published opinions, resulting in a three-tiered system with signed opinions having full precedential value, Memoranda Decisions having no precedential value, and published per curiam decisions that are “kinda precedential.” I hope we haven’t started down that road.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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