Sugar Oak Trees, Stare Decisis And “The Heneeds Of The Mont”: Shiel V. Rowell (SJC JULY 16, 2018)
The Supreme Judicial Court recently addressed the scope of its authority to overturn existing judicial precedent. Shiel v. Rowell -July 16, 2018. The suit involved a one hundred foot sugar oak tree whose over hanging branches were alleged to have damaged a neighbor’s roof due to algae build-up. Under existing precedent (i.e. the “Massachusetts Rule”), there is no cause of action against the neighbor if the tree is healthy. The aggrieved neighbor argued, with the support of other jurisdictions, that the precedent was outdated and that the Court should recognize a cause of action for damages. The Court refused to do so finding the established common law rule not “outdated” and retaining benefits “still relevant to circumstances of contemporary life.”
While Shiel did not involve any particularly weighty statutory or constitutional issue, the decision reminds of the important forces at work when the judiciary is faced with a challenge to an existing holding. Indeed, Shiel is one of a line of decisions where the Supreme Judicial Court has been faced with a request to abolish and depart from established precedent. See, e.g., Taylor v. Martha’s Vineyard Land Bank Comm’n, 475 Mass. 682 (2016)(refused to abolish or alter rule disallowing any use of an easement to benefit land which the easement was not appurtenant); Papadopoulos v. Target Corp., 457 Mass. 368 (2010)(overruling rule as to liability for unnatural but not natural accumulations of ice and snow); Stonehill College v. MCAD, 441 Mass. 549 (2004)(overruling rule that constitutional right to jury trial applied to parties in civil administrative proceeding brought before the MCAD).
Justice Cypher, in writing the opinion for the Court, espoused the importance and virtues of stare decisis asserting it was the “preferred course” due to the need for predictability, consistency, reliance and “actual and perceived integrity of the judicial process.” She also duly reaffirmed that “[p]arties should not be encouraged to seek reexamination of determined principles and speculate on a fluctuation of the law with every change in the expounders of it." Sheil quoting Mabardy v. McHugh, 202 Mass. 148, 152 (1909). Yet, the Court also recognized that stare decisis was not an “inexorable demand;” that the Court “invited challenges to antiquated laws;” and that “[o]ne of the great virtues of the common law is its dynamic nature that makes it adaptable to the requirements of society at the time of its application in court." Shiel quoting Lewis v. Lewis, 370 Mass. 619, 628 (1976) and State v. Culver, 23 N.J. 495, 505, cert. denied, 354 U.S. 925 (1957).
The real work in this joust between the virtues of stare decisis and the notion of the “common law’s dynamic nature,” is the applicable criteria and means of determining, in any particular case, which prevails. There remains the ever-present danger, as noted by some, to render the role of precedent and stare decisis “one of convenience, to both conservatives and liberals, whose friends…are determined by the heneeds of the mont.” Other than stating that the Court could “uproot precedent when ‘the values in so doing outweigh the values underlying stare decisis,’" Sheil quoting Franklin v. Albert, 381 Mass. 611, 617 (1980), and that “[o]verruling precedent requires something above and beyond mere disagreement with its analysis,” no further criteria was noted. This formulation, including the implicit if not express dictate that the judiciary may under the auspices of the “common law” change course in order “to adapt to the requirements of society,” does little to placate the concern of unbridled judicial preference and transgression into impermissible legislating.
In an effort to provide principled decision-making and reconcile the perceived need, at times, to uproot existing precedent with the ideal of the rule of law, courts have often identified certain factors or principles to consider. These have been identified as workability, reliance, abandonment, and legitimacy.
Workability addresses whether the precedent has fostered inconsistent applications or uncertainty. Reliance centers on the justifiable expectations of the litigants. As observed, “a court will be discouraged from overturning a precedent that ‘is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation.” Hon. John Walker Jr., The Role of Precedent in the United States: How Do Precedents Lose Their Binding Effect, Stanford Law School Commentary No. 15 (Feb. 29, 2016). It has been noted that reliance interests may have particular importance in business and commercial contexts given the need for advanced planning and precision.
Abandonment is an inquiry as to whether the precedent was outdated. It examines the underpinning or rationale for the rule of law at issue and whether it has continued vitality in present times and existing circumstances. As to legitimacy, this factor concerns the integrity of the court both actual and perceived. This requires compelling justification for an uprooting of existing precedent and explanation that dispels a suggestion that the decision to abrogate such precedent was the result of a change in court personnel or an unjustified repudiation of the basis for the precedent in the first place.
In addition to these criteria, it has been generally recognized that the force of stare decisis is at its peak as to statutory construction issues and its nadir as to constitutional matters. The rationale for this sliding scale is that as to statutory construction matters, the legislative branch is free to correct, modify or abolish the construction with any changes in constitutional interpretation much more difficult to obtain. Further, the legislature has the primary role and competency as to statutory enactments while the judiciary with the controlling role in interpreting and applying the constitution. As to common law, there is the suggestion that it falls somewhere between.
The difficulty remains that these considerations are rather thin as to independent meaning or predictive force. For instance, as to workability or the benefits of the rule considerations they arguably go to whether there should be a stare decisis inquiry in the first place not what should govern how that inquiry is to be determined. What is unworkable v. workable and/or what is sufficiently beneficial is likely highly debatable. Similarly, the purported factors can easily plunge into “an ad hoc gestalt judicial inquiry, capable of being applied in either direction depending on the Court's preferences.” Symposium, Precedent & the Roberts Court: Perspectives on the Doctrine of Stare Decisis, 86 N.C.L. REV. 1165, 1201 (2008). As to the sliding scale, it remains that paramount to all three tiers is the creation and need for stability, coherence and the rule of law.
At bottom, the importance of Shiel and cases like it is that they test the reach of judicial power and implicate the demarcations underlying the separation of powers. The primary thrust of the separation of powers is to preserve the “impartial rule of law” and to inhibit tyranny by limiting the discretion afforded to those empowered to directly act on the governed through the rule of law. This cannot work if the officials are free to expand their powers by changing the law that controls or provides their authority. By constraining judicial discretion, stare decisis reflects the proposition that objectively determined holdings or rules of law are binding on an independently constituted judicial branch. As legal precedent or holdings not only resolve the dispute before the court but future cases as well, they serve to allocate and limit power between courts of the past, present and future. “The law of precedent involves a transtemporal application of separation of power principles, allocating power among judges serving at different points of time.” Randy Beck, Transtemporal Separation of Powersin The Law of Precedent, Univ. Ge. L. Rev. (2011). Fundament to stare decisis is that “it directs the forces of change away from the courts to the domain of politics.” Randy Kozel, Stare Decisis and the Separation of Powers, The Federalist Society.
In Sheil, stare decisis won out with it remaining that identifying and applying the criteria to be used in striking the balance between stability and leaving room for innovation and correction of error is a difficult one. Whether the issue involves algae from sugar trees or constitutional doctrine, stare decisis should prevail absent compelling justification and reasoning with it demonstrated that the existing rule is truly unworkable and with a focus on the reliance interest. Shiel reminds that disavowal of precedent must, without exception, be only in the exceptional circumstance. The necessary showing must include the demonstration that the challenged precedent never established the stability and predictability that underlies stare decisis in the first instance. To hold otherwise, is to irretrievably damage the need and understanding that the law is the province of evenhanded and durable principles rather than the proclivity of individuals or particular courts.