The statewide controversy over the civil remedial fee statute tied to the $1.2 billion 2007 Virginia Comprehensive Transportation Act appears ready to explode into a multi-phased legal challenge of the Transportation Act itself on both federal and state Constitutional grounds.
 
On Wednesday, Aug. 1, former (1992-96) Virginia Republican Party Chairman Patrick M. McSweeney, now heading his own law firm in Richmond, confirmed he is poised to become lead attorney in such a challenge.
 
That challenge of the validity of the entire Transportation Act could be filed as early as this week, according to both McSweeney and one prospective plaintiff, Front Royal Town Councilman and defense attorney Tom Sayre.
 
Several of the expected legal challenges were outlined in a May 2 opinion McSweeney sent to Phillip A. Rodokanakis, President of the Virginia Club for Growth. While McSweeney declined to name a list of prospective plaintiffs until the action is filed, he did say builders groups were not part of the challenge he is currently involved in.
 
“They may file an action of their own, but they are being pretty cagey about that right now,” McSweeney said in a telephone interview.
 
In his May opinion to Rodokanakis, the former Republican Party chairman with extensive legal experience in the areas of constitutional, land use, antitrust and commercial law issues, said he believed then House Bill 3202 was “constitutionally defective” on a number of fronts.
 
On Aug. 1, McSweeney said those same defects in the final bill passed into law, including violations of the Single Object Rule; the creation of “regional authorities” authorized to raise and disperse revenue for transportation projects bypassing municipal authority; the imposition of impact fees on too general terms; and the inclusion of a $3-billion bond issue without voter approval would be among the likely legal challenges of the Constitutionality of the entire 2007 Transportation package.
 
McSweeney said that while his May letter to Rodokanakis omitted reference to them, the civil remedial fees imposed on Virginia drivers that have been the focus of the initial public outcry over the transportation package that became law on July 1, will also be part of the legal action he anticipates being filed by the end of the first week of August.
 
“There is a prohibition on the legislature in imposing fines and clearly as articulated, and in the literature, these fees are intended to be punitive,” McSweeney said of civil remedial fees ranging from $750 to $3,000 on some misdemeanor and felony traffic offenses. “If they are, in fact, punitive they should be going into the state Literary Fund, not the General Fund according to the state Constitution.”
 
The General Fund disbursement allows the money collected from the fees to be applied to road projects across the state. The fees were promoted by state Republicans as an alternative to an approximate two-cent hike in the state gasoline tax to raise an estimated $100-million in revenue to help fund transportation infrastructure projects in Virginia.
 
In addition to the already raised Constitutional issue of violations of equal protection under the law guaranteed in the U.S. Constitution, the civil fees imposition upon court convictions may raise other Constitutional issues, McSweeney said. “There is the issue of double jeopardy when they are automatically imposed upon conviction by the judiciary without separate argument. It goes to due process, as well as being totally out of proportion there is no rational relationship to the offense from which they spring.”
 
The initial heat felt by politicians across the state came once the public became aware of the scope of offenses covered by the civil remedial fees and that they applied only to Virginia drivers. Those offenses listed on the state Supreme Court website range from learners permit violations, speeding, driving without a license and other non-criminal misdemeanor offenses, to felony traffic offenses including DUI and reckless driving.
 
Many legislators, including Fairfax Republican David Albo, who co-sponsored and apparently authored portions of the civil fee statute, have claimed the H.B. 3202 morphed so much during debate that none seemed clear on all its implications as passed and signed into law. Albo and other Republicans have pointed out that Democratic Governor Tim Kaine deleted out-of-state drivers from the final Bill, thus raising the equal protection red flag.
 
However, videos, including one purportedly from September 28, 2006, early in the General Assembly discussion process, have surfaced on the YouTube video website. Albo is seen in that video http://www.youtube.com/watch?v=Ew87bfCPf1w explaining that Virginia had no authority to impose its proposed “civil fees” on out-of-state drivers.
 
Asked if he was aware of the video, McSweeney said he was and agreed it appeared to have been filmed on the floor of House. Light entertainment aside, McSweeney said the prospective plaintiffs are very serious about the Virginia legislature having overstepped its bounds in achieving the compromises necessary to get a Transportation package passed after failing to do so in 2006.
 
McSweeneys description of why the single-object rule was put in place over a century ago still rings familiar.
 
“The principal impetus for the adoption of the single-object rule was the widespread mischief of logrolling in the nineteenth century,” McSweeney wrote on May 2. “Such bills, popularly known as omnibus bills, became a crying evil, not only from the confusion and distraction of the legislative mind by the jumbling together of incongruous subjects, but still more by the facility they afforded to corrupt combinations of minorities with different interests to force the passage of bills with provisions which could never succeed if they stood on their separate merits A still more objectionable practice grew up of putting what is known as a rider, that is, a new and unrelated enactment or provision on appropriation bills, and thus coercing the executive to approve obnoxious legislation or bring the wheels of the government to a stop for want of funds.
 
“The mischief that prompted the inclusion of the single-object rule in the Virginia Constitution and the constitutions of forty other states continues [and] reflect[s] temptations which, being inherent in the law-making process, are present in every era. City of Philadelphia v. Com., 838 A.2d 566, 588 (Pa. Sup. Ct. 2003).
 
“H.B. 3202 constitutes the very kind of omnibus bill that prompted the single-object provisions,” McSweeney wrote Rodokanakis. “The inclusion of provision for urban development areas and requirement that covered localities incorporate principles of new urbanism and traditional neighborhood development in their comprehensive plans has no reasonable relationship to provisions requiring that the Washington Metropolitan Transit Authority submit its annual audit report to the Auditor of Public Accounts, authorizing a $3 billion bond issue, establishing a Joint Commission on Transportation Accountability, reorganizing the Department of Transportation and the Commonwealth Transportation Board, imposing new and enhanced penalties for traffic law violations, and authorizing new regional transportation taxes and fees.”
 
Contacted about his participation in a legal challenge of the Transportation Act, but perhaps stung by the Front Royal Town Councils recent failure to act on a highly publicized proposal to remove the fees from town codes, Sayre was cautious. The first-term councilman and defense attorney acknowledged he planned to be one of the named plaintiffs should the suit be brought forward.
 
Sayre, a staunch opponent of Northern Virginia-style gro
wth coming unchecked into the Northern Shenandoah Valley, said he likes portions of the transportation package such as impact fees on developers to support infrastructure improvements necessitated by growth, but added, “The impact fee provision is a good start in legislation but the problem is the rest of the bill is not good. This is a work in progress.”
 
Attempts to reach 18th District Delegate Clifford L. “Clay” Athey Jr. for comment on a potential legal challenge of the Comprehensive Transportation Act were unsuccessful. Athey was a major proponent of the inclusion of impact fees and the creation of urban development areas to direct and support growth as part of the 2007 Transportation package.
 
Binachini is a staff writer of The Warren Report in Front Royal, VA. Used by permission.