Va. Repeal of Bad-Driver Fees Hits a Hidden Legal Bump

By Tim Craig and Anita Kumar
Washington Post Staff Writers
Tuesday, January 29, 2008

RICHMOND, Jan. 28 -- Efforts to repeal Virginia's controversial abusive-driving fees hit a snag Monday after lawmakers discovered a 130-year-old state Supreme Court ruling that prohibits lawmakers from ordering local courts to stop collection of fees or fines that have already been assessed.

Since the fees went into effect July 1 to help finance a transportation bill, more than 1,000 motorists convicted of felony and misdemeanor offenses have been ordered to pay the fees, which are assessed over three consecutive years. One option under review is to ask motorists to finish paying the installments and then issue a refund.

Several legislators say the complication, which comes as the House and Senate have been racing to make the repeal their first legislative achievement this year, is another sign that they made a mistake in establishing the fees last year.

"Had we asked these questions, had all of this been asked and answered in 2007, this bill would have never been approved by the legislature," said Sen. R. Edward Houck (D-Spotsylvania). "This is an example of bad legislation."

On Monday, the House tentatively approved a bill to repeal the fees as soon as Gov. Timothy M. Kaine (D) signs it into law. The Senate was expected to approve a similar bill Monday, but Democratic leaders put off a vote, possibly until today.

Senate Democrats had hoped to find a way to order the courts to stop collection of the second and third installments of the fees, which range from $750 to $3,050. But after consulting with the attorney general's office, Houck uncovered a Supreme Court opinion from 1878 that suggests such a move would be illegal.

In Ratcliffe v. Anderson, the Supreme Court stated that the General Assembly "oversteps its authority when it passes legislation to invalidate or otherwise reopen a court judgment or decrees." Subsequent rulings have been upheld, according to a memo distributed to lawmakers.

To get around the ruling, Houck said Monday night that he and the attorney general's office have developed a proposal that includes offering refunds to anyone who has paid the fee. The bill would also instruct the courts not to issue any fees to motorists who have been arrested but not convicted. Houck's proposal also instructs the Department of Motor Vehicles not to suspend drivers' licenses for failure to pay a fee.

But Houck said those who have already been assessed a fee would make their second- and third-year payments and then hope for a refund.

"The legal experts say there is no way we can just say folks don't have to follow the court order," Houck said.

Sen. Kenneth W. Stolle (R-Virginia Beach) called Houck's refund suggestion "backwards."

Stolle said a better option would be to require those already assessed to seek an order from a judge saying they don't have to pay the remaining installments.

"What you have to do is vacate the order," said Stolle, a lawyer. "It is very, very complicated to reverse a criminal statute because you can't make it retroactive."

But Senate Democrats rejected Stolle's solution, arguing that motorists should not be burdened by having to return to court to get out of making their payments.

The House also wrestled Monday over what to do about those who are already paying the fees. House Democrats pushed for an amendment that would allow them not to pay. But the Republican majority, citing many of the same concerns that came up in the Senate, rejected the idea.

The House plan also scrapped a proposal that would have required Northern Virginia residents to pay sales tax on car purchases directly to the state instead of through dealers, a move the state Department of Transportation says could cause long lines at the DMV.

Del. Timothy D. Hugo (R-Fairfax), who sponsored Monday's bill, said the change was made in response to Kaine's concerns.

"I think the governor is concerned. I think that's fair to say. Highly concerned," he said. "What we were trying to do because of that concern is not have that DMV provision hang up the straight repeal of the abuser fee."

Car dealers, who are pushing for the proposal, are expected to continue to fight for it in the Senate.

As part of last year's transportation deal, there is a 1 percent tax assessed on car sales in Northern Virginia and Hampton Roads, in addition to Virginia's 3 percent tax on such sales.

Car dealers want buyers to pay the tax at the DMV, making it impossible for them to finance it.

Despite concerns from Kaine, legislators said they are confident that the DMV could handle the change and perhaps collect the taxes by mail or online.

"There are ways they can do that," Del. Kristen J. Amundson (D-Fairfax) said.

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