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Lawsuit Adds To Roads Bill Challenges

By Anita Kumar
Washington Post Staff Writer
Wednesday, August 8, 2007; B01

A group of prominent conservatives and anti-tax activists, including a Northern Virginia legislator and a former Virginia GOP chairman, has challenged the constitutionality of the state's landmark transportation plan, including its high fees for egregious driving offenses.

The transportation legislation, widely praised four months ago as a compromise between the Republican-led General Assembly and Democratic Gov. Timothy M. Kaine, is under attack in Virginia courts and has evolved into a major campaign issue. Two judges ruled last week that the driver fees are unconstitutional; on Monday, a group of 18 activists asked a judge to void the entire transportation plan.

The group's lawsuit, filed Monday in circuit court in Richmond, goes beyond the driver fees, arguing that many of the major sources of revenue for the $1 billion-a-year-plan violate either the U.S. Constitution or Virginia's.

Among other things, the lawsuit alleges that regional transportation authorities in Northern Virginia and Hampton Roads should not be permitted to assess taxes and fees, as lawmakers allowed in the bill. Last month, the Northern Virginia Transportation Authority approved $300 million a year in new spending financed by regional tax increases.

The lawsuit also said that $3 billion in statewide road bonds should not be issued without approval from state voters. It also says developers should not be forced to pay new "impact fees" for roads and other transportation improvements.

Del. Robert G. Marshall (R-Prince William) is among the 18 plaintiffs in the lawsuit, which was filed by former state Republican Party chairman Patrick M. McSweeney. Five years ago, Marshall and McSweeney were part of a group that filed a similar lawsuit challenging the constitutionality of a proposed transportation sales-tax referendum.

McSweeney, a Richmond lawyer, submitted a separate court challenge Monday in Arlington County challenging the powers of the NVTA.

Marshall, who voted against the legislation in April, said yesterday that he has twice asked Attorney General Robert F. McDonnell (R) for formal opinions on the transportation plan, which was approved to pump more money into the state's aging transportation system. Marshall said he has not received an opinion.

A spokesman for McDonnell, J. Tucker Martin, said he could not comment on a pending lawsuit.

Marshall said lawmakers would not have approved some of the provisions of the bill if they had been offered separately. As an overall package, he said, lawmakers felt pressured to approve it.

"Members were coerced into voting for the parts they did not like for the ones they did," he said. "The abuser-fee bill passed this way, which is why the Virginia Constitution has prohibited this kind of omnibus legislation for more than 150 years."

The lawsuit also alleges that the high driving fees violate federal and state protections against double jeopardy, equal protection under the law and state constitutional assurances against exorbitant fines.

The fees, which took effect July 1 and range from $750 to $3,000 for serious traffic offenses, were instituted to help finance the bill and are expected to raise $65 million a year.

They were supported by members of both parties but were conceived by Republicans to avoid raising taxes. Public anger has centered primarily on the high amounts and the fact that the fees apply only to in-state drivers.

Del. David B. Albo (R-Fairfax), who supports the fees and says he thinks the current law is constitutional, said he has drafted legislation that would expand the fees to include out-of-state drivers. The General Assembly will convene in January.

Last week, judges in Richmond and Henrico County general district courts ruled that the fees are unconstitutional because they cover only Virginia residents. The Henrico case has been appealed by the commonwealth's attorney and is scheduled to be heard today in circuit court.

Since the fees were enacted, more than 165,000 people have signed an online petition calling for a repeal.

Plaintiffs in Monday's lawsuit include members of several groups, including the Virginia Club for Growth, National Taxpayers Union and A Matter of Justice, and former Del. Dick Black (R-Loudoun).

Philip Rodokanakis of Fairfax, president of the Virginia Club for Growth, said the transportation package misled residents who thought lawmakers had not raised taxes.

"I was hoping some wisdom would prevail," he said. "But they trampled over the Constitution. It was done to see how far they could push the envelope."

Defendants include Kaine, McDonnell, House Speaker William J. Howell (R-Stafford) and the Northern Virginia and Hampton Roads regional transportation authorities.

"The governor remains confident that the transportation package is constitutionally and legally defensible," said Delacey Skinner, a spokeswoman for Kaine, who is on vacation this week.

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