- The Washington Times - Thursday, August 2, 2007

A judge in Henrico County, Va., today is expected to rule on what appears to be the first legal challenge against a state that imposes stiff driving fees solely on its residents.

Attorneys representing Anthony O. Price, convicted last week of driving on a suspended license for the fifth time in Virginia, argue the state’s new fee program is unconstitutional because an out-of-state driver would be immune to the additional $750 Mr. Price now faces.

“Our equal protection argument is based on the different penalties imposed on in-state and out-of-state drivers,” said Esther J. Windmueller, an attorney representing Mr. Price.

According to officials in four other states with similar laws, there has never been an equal-protection challenge against singling out in-state drivers. Only Texas imposes the fees solely on in-state drivers, and only Michigan has faced a constitutional fight.

In March, the Michigan Court of Appeals said the state’s Driver Responsibility Law (DRL) “is rationally related to the legitimate government purpose of generating revenue from individuals who impose costs on government and society. We hold that the DRL does not, on its face, deprive plaintiffs of the equal protection of the law.”

The ruling is almost identical to the wording of Virginia’s “civil remedial fee” statute, which states the purpose of the fees is “to generate revenue from drivers whose proven dangerous driving behavior places significant financial burdens upon the Commonwealth.”

The two cases can’t be compared, officials said.

“If that [in-state only] distinction was not there [In the Virginia law] … I don’t know that the equal-protection argument would be there,” Ms. Windmueller said.

Sen. Kenneth T. Cuccinelli II, Fairfax County Republican and a critic of the fees, said he thinks the equal protection argument is “legitimate.”

“The big question I think is [does the judge] accept the notion that the fees are separate from the criminal punishment or not,” Mr. Cuccinelli said. “If the judge decides and goes with case law that says if you get a conviction you pay these fees, then the fees are part of the punishment, and then the equal-protection argument will have legs.”

House Democratic Caucus Chairman Brian J. Moran, a critic of the fees, said there is some validity that Virginians are being treated unfairly. “There is probably not a lot of case law because it is unusual for a state to put a tax on itself as opposed to out-of-staters,” he said.

Today’s ruling could trigger a series of appeals that could push the case toward the state Supreme Court.

The fees are tucked into the multibillion-dollar transportation package the Republican-controlled General Assembly and Gov. Timothy M. Kaine, a Democrat, carved out earlier this year.

The package, which relies on long-term borrowing and an assortment of regional taxes and fees in Northern Virginia and Hampton Roads, was celebrated as “landmark legislation” and the end to infighting between the centrists and anti-tax wing of the Republican 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.



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