- The Washington Times - Saturday, June 7, 2008

RICHMOND (AP) - The Virginia Supreme Court revived a lawsuit challenging the constitutionality of the state’s planned transfer of the Dulles Toll Road to the Metropolitan Washington Airports Authority, saying Friday that a judge improperly ruled state transportation officials were shielded from such claims.

The court unanimously reversed Richmond Circuit Judge Margaret Spencer’s decision and sent the case back for trial.

Two Northern Virginia residents claim the transfer would violate the state Constitution because it wasn’t approved by the General Assembly. Under a 50-year agreement, the airports authority would operate the road and collect tolls, some of which would be spent on construction of a 23-mile Metrorail extension to Dulles.

“Today’s decision … does not address the core issue of whether the commonwealth may undertake this project,” said David Clementson, a spokesman for Attorney General Bob McDonnell. “The commonwealth will now proceed to defend the merits of the law at issue in the Richmond Circuit Court.”

Patrick McSweeney, attorney for plaintiffs Patrick Gray and James Nagle, said the ruling has repercussions beyond the Dulles Toll Road case.

“It’s important to establish the principle that any person adversely affected by an unconstitutional action can hold the government officials accountable,” McSweeney said. “When the Constitution is violated, people ought to have recourse, and the court agreed.”

McSweeney’s clients assert that under the Constitution, the power to tax – or in this case, collect tolls - is vested in the General Assembly, which may delegate that power only to local or regional governing bodies.

The case is similar to another one in which the Supreme Court ruled the state improperly delegated taxing power to the Northern Virginia Transportation Authority, which is not elected by the citizens. That February ruling essentially gutted the General Assembly’s 2007 transportation funding plan.

In the Dulles Toll Road case, Gray and Nagle want their toll fees to go toward maintenance of the road rather than be spent on the rail project. They also are concerned that the state will give up control over the amount of the tolls, which range from 50 cents to 75 cents.

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