Judge Hears Appeal on Ruling That Quashed Va. Bad Driver Fees

By | August 10, 2007

There was no rational basis for state legislators to assess surcharges for bad driving only on Virginians and not nonresidents, a lawyer for a repeat traffic offender told a judge considering whether the fees are constitutional.

Wednesday’s arguments before Henrico Circuit Judge L.A. Harris Jr. came in the state’s appeal of last week’s lower court ruling that fees as high as $3,000 for abusive drivers are unconstitutional because only state residents pay them.

The court case is at the front of a legal effort to strike down the unpopular law. Similar cases await in other localities on behalf of traffic violators who now face the fees, and a lawsuit filed Monday in Richmond challenges not only the fees but the entire 2007 Transportation Act, Virginia’s first major highway funding boost in a generation.

Meanwhile, political efforts to repeal the fees and refund those already collected continued among legislators wary of public outrage less than three months before fall General Assembly elections.

In court, Harris focused on legislative reasoning because if he finds a clear rational basis for excusing out-of-state drivers, the fees can’t be found to violate the 14th Amendment guarantee of equal protection under the law.

“There is absolutely no reason to distinguish between out-of-state dangerous drivers and in-state dangerous drivers for the purpose of collecting revenue,” said Craig S. Cooley, who represents Anthony Price, a Richmond carpet installer convicted a fifth time of driving on a suspended license.

The daunting fees, imposed on top of existing fines, court costs and even jail time, were enacted to help endow the first major transportation funding boost in 21 years.

They were enacted as “civil remedial fees” instead of fines because revenue collected from fines must be spent for education. Money from the fees can be reserved for highway maintenance.

Fines, however, can be collected across state lines while the state has little leverage in collecting fees outside Virginia.

Deputy Commonwealth’s Attorney Duncan P. Reid argued that there was ample rational grounding for limiting the fees to Virginians: they impose more wear and tear on the roads than nonresidents; they derive much more benefit from the fees and the highway upkeep they pay for; and it’s more difficult and costly to collect from people in other states.

But Cooley countered that what’s at issue is assessing the fees, not collecting them. He said it costs the same to send letters to Virginians as to nonresidents notifying them the fees are due.

“We may not collect as high a percentage as we would get from Virginians, but that’s not a reason to exclude a class of people,” Cooley said. “Suppose we get 10 percent of the fees we assess on out-of-state drivers. We’re still 10 percent better off than we were.”

Harris asked Reid why Virginia could not do as four other states with similar abusive driver laws _ Michigan, New Jersey, New York and Texas _ and apply the surcharges to nonresidents.

The difference, Reid said, is that multistate compacts in which each state agrees to mutually support the fines and costs imposed by others don’t cover civil fees.

“It may not be wise or it may not be the best choice, but that was what the General Assembly chose to do,” Reid said.

But Harris also noted that only about half of the states belong to the multistate compacts to which Virginia belongs, and asked why the legislature didn’t also exempt nonresident motorists from traffic fines.

“Couldn’t they make the fines the same way because it’s harder to collect them from half the states that are not part of these compacts,” he said.

Harris told the attorneys he would rule within the week and mail his decision to them. If he upholds the Henrico General District Court ruling that the law is unconstitutional, it speeds the case toward an eventual state Supreme Court showdown.

A Richmond general district court also found the law unconstitutional last week, but the appeal was delayed pending Harris’s ruling. A similar constitutional challenge was filed Tuesday in Arlington on behalf of a U.S. Navy reservist in full uniform who was ticketed for reckless driving last month for doing 75 mph in a 55-mph stretch of Interstate 395.

On Monday, a group of anti-tax conservatives filed a 13-count lawsuit in Richmond Circuit Court that challenges nearly every facet of the statewide and regional funding components in the $1 billion-a-year transportation funding measure. It also awaits a hearing.

Wednesday night, more than 200 residents showed up at an open forum in Hampton to voice concerns about the plan to members of the Hampton Roads Transportation Authority, which could vote as early as Friday to approve an assortment of new taxes and fees to fund local road projects. A second public hearing is scheduled for Thursday night in Virginia Beach.

Legislators in both parties for weeks have clamored for swiftly repealing the fees and reimbursing people who have already paid them. Republican leaders of the House and Senate and Democratic Gov. Timothy M. Kaine have called for restraint and waiting until the 2008 session convenes in January to mend the law.

On Tuesday, state Sen. R. Edward Hock, D-Spotsylvania, joined legislative critics of the fees by ordering the Division of Legislative Services to draft a repeal-and-refund bill.

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