We have a statutory road association and a member asked a question regarding some of the rules included in Maine Title 23.  The question is: "if the Maine statutes do not allow a property owner to be denied a vote in road association meetings, or if minutes of meetings must be provided to all members within 30 days, does the State offer any mechanism for enforcement of the rules"?  

I think the question was specifically about enforcing the rules re: allowing every member to vote, and sending out the minutes within 30 days.  Unlike the question of non-payment of dues, where enforcement is needed in order to collect money that is due, there would be little monetary incentive for a person to sue a road association because they were denied a vote or because they didn't get the minutes within 30 days.  In order to do so he would have to suffer the considerable expense of going to court, and there would be no money to gain thereby. 

If that member had not paid his dues and the road association sued him to recover the unpaid amount, he could perhaps use those infractions to try to defend himself from the collection action.  In that case, both he and the road association would suffer court costs, and likely neither would gain any monetary award.  (My inexpert non-attorney opinion.)  So that should give some incentive to road associations to make sure they do everything by the letter of the law, as our attorneys at the Conference emphasized.

But there is no specific enforcement agency to whom a member could turn to get the rules enforced so that he could vote even if he had not paid his dues, or to enforce the minutes being sent to him within 30 days.  This is the sort of case where I would strongly recommend dispute mediation to work out the differences that caused the problem.  The services of a professional mediator are much less expensive than resorting to court action, and have a high rate of successfully resolving disputes.

As for bringing in the phrase "to be sworn," both attorneys John Cunningham and Mary Denison expressed their opinion that the requirement in the law is so vague and archaic it would be unlikely any judge would try to enforce it if it ever came up as an objection to the validity of a road association.

Thank you, Roberta, for refocusing and clarifying Harold's original question.

Both of you, my apologies for missing the opinions of both attorneys on the archaic nature of "to be sworn". As President/Road Commissioner of our statutory road association, I make it a point "to be sworn" annually. Perhaps I am pertinacious in this respect.

Along with Roberta, I want to stress that both attorneys, but particularly John Cunningham, emphasized being attentive and adherent to the details of the Statute for the reasons I suggested above. 

Again, I thank you and appreciate your responses to my questions.  My MARA membership fee and the opportunity to attend the MARA Conference was money absolutely well spent!  

Sandy -

I really like your form for recording swearing in, especially its mention of the U.S. and State Constitutions. I hope the officers have actually read them to know what they are swearing to uphold. But in cases where the association's road is also a "public easement," (this is the exception, rather than the rule,) I believe there is a Constitutional conflict. How can private individuals be compelled to spend their private funds to maintain a road for the public's use, especially when they are already compelled to pay taxes to maintain the town's public roads?

23 MRSA Section 3101 paragraph 1A does say that road associations can be formed on "private ways" as defined in section 23 MRSA 3021, that is, public easements. But as I see it, the state law is in conflict with the Constitution.

There are two ways a private road can become a public easement. The first is if it was a town road that was discontinued after 1965 or abandoned after 1976, either of which automatically makes it a public easement. This law was put in place to assure that no one would be land locked by the discontinuance of roads. It serves towns well, because they often take that as meaning that they don't have to compensate land owners for loss of access when the road is discontinued. But it also creates a road that the public can continue to use freely with no liability and no maintenance obligation. The resulting public road with no public maintenance "will inevitably be destroyed," as determined by the Maine Supreme Court in Jordan v. Canton. The Court said that this destruction of access is a "taking" that requires both due process and just compensation in order to satisfy the Constitution.

The other way a private road can become a public easement is if the Town and the road association have agreed to designate it as a public easement so the Town can provide snow removal with public funds on a private road. Public funds can't constitutionally be used to maintain private roads, so this "loophole" was used to make it legal by saying the public can use the road. But that leaves the road association suffering the cost of the extra wear and tear on the road, plus the liability. This is one of the injustices Maine ROADWays has been fighting for years.

So while I am very much in favor of swearing to uphold the State and U.S Constitutions, that does highlight the Constitutional conflict when it comes to road associations on public easements.