Circuit judge upholds abuser fees for drivers

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A Circuit Court judge in Henrico County, Va., yesterday upheld the state"s new abuser fees against resident drivers as constitutional, handing lawmakers who have supported the program their first legal victory.

Judge L.A. Harris Jr. ruled the General Assembly had rational reasons for exempting out-of-state drivers from the new law, even if it appears unfair and is not supported "by evidence or empirical data."

"The defendant bears the burden of demonstrating that there can be no conceivable set of facts that would rationally support the distinction ... between Virginia residents and nonresidents," Judge Harris said in the six-page ruling.

The ruling came in the case of Anthony O. Price, a 23-year-old Henrico man whose fifth conviction for driving on a suspended license — and a $750 fee — were put on hold Aug. 2 after a lower-court judge said that singling out Virginia drivers violated the equal protection clause of the Constitution.

Mr. Price"s attorneys are set to appeal the ruling in state Supreme Court.

Known as "civil remedial fees," they range from $750 for driving on a suspended license to $3,000 for driving-related felonies. They are part of the multibillion-dollar transportation package that the Republican-controlled General Assembly and Gov. Timothy M. Kaine, a Democrat, approved earlier this year.

The fees, which are designed to raise about $65 million a year for road and rail projects, have faced intense public scrutiny since going into effect July 1.

More than 170,000 people have signed an online petition to repeal the fees. Several lawmakers have urged Mr. Kaine to call a special session to revisit the law, and last week, a group of anti-tax conservatives filed a 13-count constitutional challenge in Richmond Circuit Court against most of the transportation package"s new revenue streams, including the stiff fees.

The first abuser fee case in Northern Virginia involving a U.S. Navy veteran from Centreville who faces a $1,050 abuser fee after being ticketed for driving 75 mph in a 55-mph zone on Interstate 395 near the Pentagon is scheduled to be heard Monday in Arlington General District Court.

Before yesterday's ruling, the civil remedial fees had been deemed unconstitutional in district courts in Henrico County and Richmond, where the judge called the decision a "no-brainer."

But Judge Harris yesterday said that abuser fees must be upheld "if there is any reasonably conceivable state of facts that could provide a rational basis" for the law and that it is not the court's duty to "judge the wisdom, fairness or logic of legislative choices."

At the Circuit Court appeal last week, Henrico County Chief Deputy Commonwealth's Attorney Duncan P. Reid, who represented the state, argued that it is reasonable to single out Virginia drivers because they are responsible for most of the damage to local roads and that collecting the fees from out-of-state drivers would be nearly impossible.

Yesterday's ruling was good news for some Republican and Democratic lawmakers who defended the fees despite the mushrooming public criticism.

In a press release, House Speaker William J. Howell, Stafford County Republican, and Senate Majority Leader Walter A. Stosch, Henrico Republican, said the ruling "reaffirms the judgment of those attorneys, in both the governor's office and the Office of the Attorney General, and other legal experts, who thoroughly and exhaustively reviewed the Comprehensive Transportation Funding and Reform Act of 2007."

"On July 19, Governor Kaine joined us for a news conference at which we jointly pledged to amend one aspect of this landmark legislation — applying it fairly and fixing excessive fees for relatively minor infractions," the statement read.

"In January, we will make changes that would apply abusive driver fees to both Virginia and out-of-state drivers, as was the original intent of the General Assembly. We also remain committed to enacting this change, as well as to making whatever changes necessary to ensure this safety measure applies only to the most egregious and regular abusers of the rules and laws of Virginia's roads."

Mr. Kaine has maintained that the appropriate action for lawmakers now is to monitor how the program pans out and revisit the law when the General Assembly convenes in January.

"The governor repeatedly has said we will work with the legislature in January to find ways to fix any problems with the abusive driving fees," said Kevin Hall, Mr. Kaine's spokesman.

Delegate David B. Albo, the Fairfax County Republican who co-sponsored the original proposal, agreed with the ruling and said he plans to tweak the law after the legislative session begins so it includes out-of-state drivers.

The ruling "really doesn't matter to me because we are going to put the out-of-staters back in in January," he said.