Virginia's General Assembly and the New Voter Identification Law

On Friday, Governor McDonnell signed into law one of the most contentious bills from this year's General Assembly:  a revision of Virginia's voter identification law.

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Currently, Code of Virginia Section 24.2-643 allows an individual without identification to vote if he signs a statement attesting to his identity:

If a voter is entitled to vote except that he is unable to present one of the forms of identification, he shall be allowed to vote after signing a statement ...that he is the named registered voter who he claims to be.

A number of Republican legislators argued that the current version of the law is too lenient and that every voter should be required to produce identification. They posited that if a person is determined to commit election fraud, the signature requirement (and the potential of felony charges for lying) was not a sufficient deterrent.

The Republicans proposed legislation that amended Section 24.2-643 by deleting the possibility of a signed statement in lieu of identification.

Democratic legislators opposed the bill, stating that (1) there is little evidence of voter fraud in Virginia and (2) a stricter identification requirement would especially burden poor and minority voters, who are less likely to possess the necessary identification documents.

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The language signed by Governor McDonnell (HB 9, also filed as SB 1) does remove the possibility of a sworn statement, but it makes a concession to the bill's opponents by adding a number of new documents that can be presented to establish one's identity, including:

1. A student id card from a Virginia college or university
2. A utility bill
3. A bank statement
4. A pay stub

If the individual cannot present any identification at the voting booth, he or she may still cast a vote, but it's a provisional vote -- only counted if he subsequently mails one of the permitted forms of identification to the registrar.

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I'm not sure how I feel about voter identification laws. On one hand, I think that voting should be made relatively easy, in order to encourage people to participate in elections (to this end, I wish that elections were spread out over two or three days, including at least one weekend day).  Identification requirements could hinder some people from voting, and in this respect perhaps a signed statement should suffice.

On the other hand, asking voters to produce some kind of document to verify their identity does not seem all that onerous, particularly if the list of permitted documents includes non-photo identification such as a utility bill. From a civics perspective, the identification requirement reinforces the seriousness of voting, and this is a good thing.

So, I am torn. At first glance, I think the new law does a fair job of balancing the competing concerns, but I'll want to see whether it decreases voter turnout prior to making a final judgment.

Utility Easements and Contentious Tree-Trimming

If you purchase a house in Virginia (or most anywhere else), the title to your property will almost certainly be encumbered by utility easements.

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Utility easements are documents, recorded in the local Clerk's Office, by which an owner (usually the original developer) of the property conveys to various companies (the telephone company, the power company, the cable company, etc.) the right to maintain, repair and replace their lines and other equipment. 

Utility easements usually include both the right to enter onto private property and the right to remove "obstructions" within the easement area (usually 10 to 30 feet, in residential areas) that could interfere with operation of the utilities. 

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The "obstructions" in question, usually, are trees: trunks, roots and branches. 

A typical provision reads like this: "Grantee shall have the right to keep the easement clear of all buildings, structures, trees, undergrowth and other obstructions ... including the right to trim, top, and cut any trees or brush inside and outside the boundaries of the easement that may endanger the safe and proper operation of its facilities."

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Alas, there can be a difference of opinion between a property owner and a power company as to when a tree needs to be trimmed in order to ensure "safe and proper operation."

And when the power company fells a favorite limb from an owner's beloved oak tree because the company thinks the limb has grown too close to the power line, the owner may not be appeased to learn that the company was technically acting in accordance with its rights under the easement.

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With this background, yesterday's Washington Post has an interesting story (here) about Pepco's efforts to trim trees in the metropolitan Washington, D.C. area.

Pepco had been criticized for lackluster maintenance in the years leading up to the recent storms which brought down a significant number of power lines (this reminds me of similar criticism of Dominion Power in central Virginia).

According to the Post, even though Pepco is notifying owners before tree-trimming, there are enough disgruntled property owners that the Montgomery County (Maryland) council is considering legislation that would restrict the ability of utility companies to take down trees without the prior consent of the owner:

Two council members introduced legislation last month that would require the county’s chief of tree maintenance to intervene when a utility company cannot gain consent from a homeowner to remove a tree the utility says is an imminent hazard to its system. The legislation also calls for utility companies to gain homeowner or occupant consent before any vegetation management is performed and would require companies to grind the stumps of trees they remove and to fill the holes left behind.

Owner consent is rarely required in the text of a utility easement, and I am doubtful that a local jurisdiction would succeed in retroactively imposing a consent requirement on the utility companies.

You make the call: Should these limbs be trimmed?

The Duty of Confidentiality and George Zimmerman's Lawyers

Lawyers are governed by a number of ethical rules, and chief among them are the duties of loyalty and confidentiality owed to clients. 

Certain of the ethical rules include "sub-rules" (or exceptions) that apply when the affected individual is a former (rather than current) client. The duty of confidentiality, however, is phrased in absolute terms: Thou shalt not reveal confidential information about a client, or a former client, without his or her permission.

(Lest anyone forget how important the duty of confidentiality is to the profession, once every couple of year 60 Minutes faithfully runs a piece about an attorney who maintains the confidences of a client among even the most challenging of circumstances -- ie, prison time, death, etc.).

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Reflecting on the duty of confidentiality, Emily Bazelon at Slate has a powerful critique (here) of George Zimmerman's former attorneys, Craig Sonner and Hal Uhrig.

Zimmerman is the man charged with second degree murder in the death of Trayvon Martin. Sonner and Uhrig terminated their representation of Zimmerman earlier this week ... and then went public with a number of rather astounding comments about their former client.

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Bazelon argues that the lawyers' comments were not only inappropriate but unethical.  She does not mince words:

The rules for confidentiality in the context of a lawyer-client relationship are unequivocal. The American Bar Association’s rules for professional responsibility state that “a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.” ...  

And yet, here come [Craig] Sonner and Hal Uhrig, breaking off that representation on television in a series of statements that reveal all kinds of confidential information that could potentially hurt their former client ...  

When a few lawyers break the rules, they blow it for the whole profession. Especially in a high-profile case like this. Whatever you think of George Zimmerman, now that he’s about to face charges, he deserves better lawyers than the ones who just quit on him.

Stephen Gillers, an expert on ethics at NYU Law, expressed his own shock in an e-mail to Bazelon:

“Jaw dropping. Literally. I struggle to find the appropriate adjectives to describe [the lawyers'] behavior. The clip will be useful in legal ethics classes under the heading 'HOW NEVER TO BEHAVE.' ”

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Bazelon's piece is persuasive, particularly her argument that questionable behavior by lawyers in the media spotlight -- like Zimmerman's -- can redound poorly on the public's image of the profession as a whole. It certainly makes me wonder how Zimmerman's lawyers would explain their post-representation commentary.

Oral Versus Written Contracts: The Supreme Court of Virginia's Decision in Dixon v. Hassel & Folkes

In March, we posted a quiz (here) based on the facts of Dixon, LLC v. Hassel & Folkes, PC.

Dixon, a recent decision by the Supreme Court of Virginia, examines two questions that arise frequently in the business and real estate contexts:

1. Under what facts and circumstances have two parties entered into a legally binding contract?
2. If a contract does exist, under what facts and circumstances is it a written (as opposed to an oral) contract?

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In Dixon, a dispute arose about the boundary line between two properties.

One of the property owners sued its surveyor, alleging that a mistake by the surveyor was a breach of contract that triggered the boundary dispute with the neighbor and thereby caused harm to the property owner.

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At the beginning of the surveying project, the surveyor sent the owner an engagement letter that included the following language: "Should you find this proposal acceptable, please sign both copies of this proposal in the space provided below and return a fully executed copy to us. Receipt of the executed copy will serve as the written agreement."

You can probably guess what happened next: the owner did not sign the proposal. Nevertheless, the surveyor surveyed the boundary lines, and the owner paid the surveyor for the work.

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The prelimimary question is whether an enforceable contract exists between the owner and the surveyor.  Justice Mims, writing for the Supreme Court, disposes of this question quickly: a contract existed between the owner and the surveyor, as evidenced by both parties' performance (work by the surveyor, payment by the owner). 

The practice lesson as to question #1 is straightforward, but it bears repeating: many agreements are (or can become) binding legal contracts even absent a written instrument (subject, however, to the Statute of Frauds, about which you can read here and here).

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The more perplexing question in Dixon is whether the contract between owner and surveyor was written or oral. 

The significance of the question lies in the timing of the lawsuit: in Virginia, a claim for breach of an oral contract is barred (by the statute of limitations) after 3 years, whereas a claim for breach of a written contract is barred after 5 years. 

In Dixon, the owner filed his claim more than 3 (but less than 5) years after the surveyor completed its work.  This timeframe means the owner's lawsuit against the surveyor is barred if the Court determined that the contract was an oral contract.

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The owner in Dixon argued that the contract was written (and therefore the lawsuit was not barred by the 3-year time limit), since the original proposal -- though never signed by the owner -- had been signed by the surveyor. 

The Court disagreed, stating that the surveyor imposed a reasonable prerequisite on the formation of a written contract. Justice Mims writes:

"It is well-settled that parties may contract as they choose so long as the terms they adopt are not prohibited by statute or public policy... No such prohibition barred [the surveyor] from requiring [the owner] to sign and return the Writing as a condition precedent to its becoming a written contract. By failing to sign and return the Writing, [the owner] rejected that term of the agreement... and there was no written contract."

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For anyone out there who deals with contracts on a regular basis, Mims' opinion is (potentially) big stuff!  Here's why:

In the context of Dixon, the oral/written determination "only" affected the statute of limitations analysis (from the owner's perspective, of course, this was sufficient to have his claim dismissed, thus the quotes around the word "only").

If extrapolated to other situations, however, the Court's decision could mean that if you are presented with a written agreement, but it includes language stating that a written agreement will exist only if you countersign the document, then the terms of the original written agreement may not be enforceable against the party which presented it to you.

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Perhaps anticipating the extent to which the Court's reasoning could be used to thwart a party's reasonable expectations as to when a written contract exists, Justice McLanahan wrote an unusually strong dissent in Dixon. 

The dissent is particularly persuasive in arguing that the surveyor's performance of the terms of its written agreement (and its acceptance of payment by the owner!) should constitute a waiver of its stated requirement that a written agreement would exist only if the document were signed by the owner.

Regardless of whether one agrees with Justice Mims or Justice McLanahan, the practice lesson is clear: clients should be careful to determine whether a countersignature is necessary in order to create a written contract enforceable against the party who has presented a document.

No writing required when it comes to April tulips.

With best wishes for a happy Easter to all...

Test Your Legal Skills: The Intriguing Facts of Dixon v. Hassel & Folkes

A legal quiz for you ... something to ponder while you enjoy a beautiful March morning in Charlottesville.

Here are the facts:

1. A surveyor sends an engagement letter (signed at the bottom, by the surveyor) to a potential client. The letter includes the proposed terms of the surveyor's service along with the statement "Should you find this proposal acceptable, please sign both copies ... and return a fully executed copy to us. Receipt of the executed copy will serve as the written agreement." 

2. The surveying project moves forward. The surveyor prepares the survey for the client. The client pays for it.

3. The client never actually signs the engagement letter or returns a copy to the surveyor.

4. Time passes.

5. There is an alleged problem with the survey.

6. The client files a lawsuit, claiming that the surveyor breached its contract by incorrectly determining certain lines on the survey (thereby contributing to a lawsuit by a neighboring landowner).

Here are the legal questions:

1. Does an enforceable contract exist between the client and the surveyor?

2. If an enforceable contract does exist, then for purposes of a lawsuit by the client against the surveyor, is it an oral contract or a written contract?

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The above-facts are an abbreviated summary of the facts in a fascinating recent decision by the Supreme Court of Virginia. 

Check back in a few days to read our analysis of the Court's suprising answers (and if the suspense is killing you, take a sneak peak at the opinion in Dixon, LLC v. Hassel & Folkes, PC, here).

And here come the dogwoods...