Va. Conservatives File Suit Against New Tax, Driving Fees Law

By | August 9, 2007

Virginia anti-tax conservatives this week filed the broadest legal challenge yet to the new transportation funding law, targeting not just steep fees for bad driving but the fiscal underpinning of the $1 billion-a-year initiative.

In 13 counts, the lawsuit alleges that nearly all major revenue sources in the first major highway funding boost in a generation violate either the U.S. or Virginia constitutions.

Among the claims:

Regional transportation authorities in northern Virginia and Hampton Roads with the power to levy taxes breach the state Constitution because their members are not directly elected by voters;

“Impact fees” on people who develop their land in those regions constitute an unconstitutional governmental taking of property.

$3 billion in long-term borrowing for roads without statewide voter approval violates the state Constitution.

The civil remedial fees, already under court challenge, violate federal and state protections against double jeopardy, equal protection under the law and state constitutional safeguards against excessive fines.

The multifaceted law, directing numerous ways revenues are raised and spent statewide and regionally, violates the state Constitution’s “one-object” mandate that bills be confined to a single purpose.

“Where do you want to start with this bill? There are so many problems with it,” said Robert G. Marshall, one of 18 plaintiffs and a House of Delegates member who opposed the legislation his fellow Republicans put together last winter.

“I think that Virginians, if they read the brief, will understand that there is an effort to pull the wool over their eyes with this kind of government,” said Marshall, D-Prince William and one of the House’s most conservative members.

Because the suit was filed in Richmond Circuit Court, the court’s decision on the numerous and expansive constitutional questions would be immediately binding statewide.

Defendants include Gov. Timothy M. Kaine, Attorney General Bob McDonnell, House Speaker William J. Howell and the Northern Virginia and Hampton Roads regional transportation authorities.

“The governor feels confident that the transportation package is constitutionally and legally defensible,” said Delacey Skinner, spokeswoman for the governor.

McDonnell’s office, which will defend the state law in court, does not comment on pending litigation, spokesman J. Tucker Martin said.

The Circuit Court complaint was filed after lower courts in Henrico County and Richmond last week declared the fees as high as $3,000 for egregious driving violate the 14th Amendment’s guarantee of equal protection under the law because only Virginia residents are subject to them.

The legal challenges mount as legislators seeking re-election to their House and Senate seats this fall cope with the unrelenting political fallout over the fees.

Many residents of regional transportation districts in the state’s most populous and congested regions are angry that they will pay a blend of higher taxes and fees than people outside those areas.

On Monday, Poquoson Mayor Gordon C. Helsel Jr. resigned from the Hampton Roads Transportation Authority two days before it holds its first public meeting on plans to raise local taxes and fees, the Virginian-Pilot of Norfolk reported. Helsel told the newspaper that he could not sit on a board that will levy taxes and fees on residents he does not represent.

Residents statewide also are upset at the daunting cost of the fees and the knowledge that nonresidents are exempt. More than 165,000 people have signed an online petition demanding the fees’ repeal.

“I’d have to say that this was expected and, in fact, some of the machinations regarding the abuser fees have come from this group that wants to unravel the whole transportation package,” said House Republican Leader H. Morgan Griffith of Salem.

Besides Marshall, plaintiffs include some of the state’s best known social and anti-tax conservatives: former Del. Dick Black of Loudoun County; Paul Jost, who ran unsuccessfully for a state Senate and congressional seat as a tax-slasher; and Phillip Rodokanakis, the former Virginia Club for Growth president.

Other plaintiffs include Kathleen Bernice Crouch of Warren County, who is subject to an abusive driver surcharge after being cited July 24 for driving 66 mph in a 45-mph speed zone.

Griffith called some of the counts “spurious,” but said he believed the lawsuit’s strongest claim was against the constitutionality of the regional taxing districts. Even so, he said, he believed the entire package would prevail.

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