- The Washington Times - Friday, August 3, 2007

RICHMOND — A Henrico County judge yesterday ruled that singling out Virginia drivers in the state’s new “abuser fee” program is unconstitutional.

The ruling only applies to drivers convicted in the county just north of Richmond, but it is expected to trigger a slew of similar challenges across the state and an attorney yesterday said some are considering federal action as well.

The decision appears to be the first of its kind. The Washington Times this week reported that officials in four other states with similar laws were not aware of any equal-protection challenges against singling out in-state drivers.

The ruling comes in the case of Anthony O. Price, a 23-year-old Henrico man convicted last week of driving on a suspended license for the fifth time and faced an additional $750 “civil remedial fee.” His attorneys argued that the abuser fees violated the equal-protection clauses of the Constitution because Mr. Price would have not faced the additional fee if he was from out of state.

In his ruling, District Court Judge Archer L. Yeatts III said the state had no rational basis for making the “the distinction between resident and non-resident ‘dangerous drivers.’ ”

“Therefore [the law] is hereby declared unconstitutional and its civil remedial fees will not be imposed on the defendant,” Judge Yeatts wrote in his ruling.

Judge Yeatts referred the case to Henrico County Circuit Court, where it could get a hearing as early as next week.

“We hope this creates a domino effect across the state,” and tells Virginians that “relief is coming,” said Craig S. Cooley, one of Mr. Price’s attorneys.

Corinne J. Magee, an attorney in McLean, told The Times yesterday she will challenge the law in Fairfax County General District Court and expects other lawyers to do the same in other Virginia jurisdictions.

“I am definitely filing that motion,” she said. “I have had this thing ready to go, and I think a lot of us have been waiting for the appropriate case.”

The civil remedial fees are packed into the multibillion-dollar transportation deal that Gov. Timothy M. Kaine, a Democrat, and the Republican-controlled General Assembly approved earlier this year. The fees are estimated to generate about $65 million a year.

Lawmakers had touted the package as “landmark legislation,” and Republicans said it signaled a possible end to the long-running feud between the anti-tax and centrists wings of their party.

Statewide, Virginians are bashing the fees, which range from $750 for driving with a suspended license to $3,000 for a driving-related felony. The fees went into effect July 1.

More than 171,000 signatures have been collected in an online petition calling for a repeal of the fees, and the town of Front Royal is considering ignoring the law.

In response, many lawmakers who previously supported the fees have asked Mr. Kaine to call a special session to tweak or repeal the law.

But Mr. Kaine, backed by Republican leaders, said the legislature should study how the fees pan out this year and revisit them when the General Assembly convenes for its regular legislative session in January.

After yesterday’s ruling, Mr. Kaine said, “Whether the courts 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.”

House Speaker William J. Howell, Stafford County Republican, said he was surprised by the ruling.

“Prior to its passage by overwhelming bipartisan majorities of the legislature on April 4 of this year, the legislation was thoroughly and painstakingly reviewed by both the Kaine administration and the Office of the Attorney General, among other legal experts,” Mr. Howell said. “Members of the General Assembly will continue to … consider legislative remedies so the law is applied evenly to in-state and out-of-state drivers, as we always intended, and fulfills our intent to deter and punish the most dangerous and repeat abusers of Virginia roads.”

Attorney General Bob McDonnell, credited with pushing fellow Republicans to agree on a transportation deal to avoid voter backlash in the Nov. 6 general election, said “that the transportation package passed by the General Assembly this session is constitutional.”

Sen. Kenneth Thomas Cuccinelli II, Fairfax County Republican, and Delegate Robert G. Marshall, Prince William County Republican, disagree.

“Can you imagine if you said, ‘Only men between the ages of 20 and 40 years old were going to get hit with an additional $700 fee when they had committed a certain offense.’ No one in America would have any doubt that would be stricken as a violation of equal protection,” Mr. Cuccinelli said. “So why did anybody think excluding Marylanders, North Carolinians and West Virginians was going to be any different?”

Mr. Marshall, an outspoken critic of the transportation deal, asked Mr. Howell to provide him with legal analysts that he and Mr. Kaine relied on to support the transportation package.

Mr. Price refused to comment yesterday, but his attorney, Esther J. Windmueller, said her client was happy with the outcome.

Mr. Price is pleased to be a part of something bigger,” she said. “I think he understands exactly what’s happening.”

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