2nd Drivers Fee Ruling May Incite More Suits

By Jonathan Mummolo
Washington Post Staff Writer
Sunday, August 5, 2007

A second judge's ruling that Virginia's new "abusive driver" fees are unconstitutional foreshadows what many in the legal community predict will be a statewide tsunami of court challenges against the controversial penalties.

A Richmond General District Court judge, Thomas O. Jones, ruled Friday that the fees violate the 14th Amendment's guarantee of equal protection under the law because they apply only to state residents. His ruling came a day after a Henrico County judge, Archer L. Yeatts III, determined likewise in another case.

Del. David B. Albo (R-Fairfax), a primary backer of the fees, said he has drafted legislation for the 2008 General Assembly that would include out-of-state drivers, even though he believes the current law is constitutional.

"Obviously, two judges disagree with me," said Albo, a lawyer. Albo said he expects scores of similar challenges in coming weeks, echoing the sentiment of court officials and lawyers across the state.

"Any person who's subject to these fees would make the argument," Albo said.

The two rulings do not apply to other localities. The fees, which range from $750 to $3,000 for serious traffic offenses, were instituted to help finance a transportation bill that took effect July 1.

The Richmond case involved Joseph C. Fields, who was challenging his July 25 reckless driving conviction. He faced a $100 fine, court costs and, per the new law, $1,050 in fees to be paid in three installments over three years. Richmond Commonwealth's Attorney Michael N. Herring has not appealed Jones's ruling, said Field's attorney, G. Barton Chucker.

The Henrico case has been appealed by the commonwealth's attorney's office and is scheduled to be heard this week in the county's circuit court. In that case, Anthony Price was convicted of driving with a suspended license for the fifth time. Despite Price's record, Yeatts found no basis for subjecting Price to $750 in fees that don't apply to nonresidents.

Since the enactment of the fees -- which were seen by GOP lawmakers as a way to help finance transportation programs without raising taxes -- more than 160,000 people have signed an online petition calling for their repeal, elevating the issue's profile with this fall's elections.

Gov. Timothy M. Kaine (D) has been criticized by lawmakers for amending the bill to exclude out-of-state drivers -- a move House Speaker William J. Howell (R-Stafford) has dubbed "the governor's amendment."

"The issue of the constitutionality of the abusive driver fees is in litigation, and it is not appropriate for me to comment on pending litigation," Kaine said in a statement yesterday. "Whether the courts ultimately find the law constitutional or not, as a policy matter I am committed to addressing the concerns Virginians have raised about this law, including its application to out-of-state drivers."

Chucker said he did not believe the law was intended to impose a disproportionate burden on Virginians.

"I don't think anybody was thinking, 'Let's hurt our Virginia citizens,' " Chucker said. "I think it was a matter of administrative convenience, perhaps."

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