- The Washington Times - Thursday, March 11, 2004

A U.S. District Court judge yesterday threw out a lawsuit seeking to allow the District to tax commuters who work in the city but live elsewhere.

Judge Ellen Segal Huvelle dismissed the complaint with prejudice in a 42-page opinion issued yesterday, dealing a serious blow to a cause championed by D.C. Mayor Anthony A. Williams and the D.C. Council, but opposed by the federal government and officials in Maryland and Virginia.

“While the Court is sympathetic to the plaintiffs’ arguments and fully appreciates the manifest inequity created by the District’s inability to tax commuters, the Court lacks the power to grant the remedy that plaintiffs seek,” Judge Huvelle wrote. “The Constitution and binding Supreme Court and Circuit precedent establish Congress’ plenary power over the District and its residents.”

D.C. officials have complained for years that people who work in the city but live in Maryland and Virginia should help pay for roads and other infrastructure costs. If approved, a commuter tax allow the District to impose a levy that would bring in as much as $1.4 billion from the two states.

The lawsuit, filed last July on behalf of a handful of D.C. residents, Mr. Williams and all 13 council members, challenged provisions of the Home Rule Act of 1973, which, in effect, have exempted about 70 percent of the 1.7 million people who work in the city.

During oral arguments before Judge Huvelle on Feb. 17, lawyer John W. Nields Jr. argued that restrictions on imposing a commuter tax violated the equal-protection clause of the U.S. Constitution. Mr. Nields had argued that because states have the right to tax nonresident income, the commuter-tax ban discriminated between D.C. residents and nonresidents, even though they might be sitting side by side, doing the same job and earning the same money.

But Judge Huvelle dismissed that argument, saying the principles of equal protection only require that similarly situated people be treated similarly.

“Plaintiffs’ analogy is faulty, for the residents of the District are treated under the Constitution as a distinct class that is not comparable to any other group of citizens,” she wrote.

Mr. Williams expressed disappointment with the decision yesterday.

“I’m very deeply disappointed,” he said. “It’s an example of where something can be constitutional and unfair.”

Jack Evans, Ward 2 Democrat and chairman of the council’s Finance and Revenue Committee, said Judge Huvelle had “obviously made a mistake, and unfortunately District residents will suffer from it.” Mr. Evans said it was not clear whether an appeal would be sought.

But across the Potomac in Virginia, Attorney General Jerry W. Kilgore, Republican, applauded the decision.

“If the District were able to collect income tax on Virginia residents, we would see it as a burden on the hardworking families of Virginia,” he said.

This article is based in part on wire service reports.

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