- The Washington Times - Saturday, August 4, 2007

A second judge in Virginia ruled yesterday that the state’s new “abuser fees” program that singles out resident drivers is unconstitutional.

The ruling was issued in the case of Joseph C. Fields, a Virginia man who was convicted July 7 in Richmond General District Court of reckless driving and faced a $1,050 abuser fee under the new program.

“The law requiring the assessment of Civil Remedial Fees only upon the Commonwealth of Virginia does violate the 14th Amendment to the Constitution of the United States,” Richmond Judge Thomas O. Jones wrote in his ruling.

His decision mirrored the ruling Henrico County General District Court Judge Archer L. Yeatts III issued a day earlier in the case of Anthony O. Price, a 23-year-old from Henrico County who faced an additional $750 “civil remedial fee” after he was convicted last week of driving on a suspended license for the fifth time. As a result of the ruling, Mr. Price’s conviction was put on hold.

Mr. Price’s attorneys argued that the abuser fees violated the equal-protection clauses of the Constitution because Mr. Price would not have faced the additional fee if he were from out of state.

The decisions appear to be the first of their kind. The Washington Times earlier 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 Richmond ruling signals a potential collapse of the fee program, which is designed to generate $65 million a year for the state’s transportation system. The fees range from $750 to $3,000.

Both judges declared in their rulings that the General Assembly had no rational basis to support the distinction between “residents and non-resident ‘dangerous’ drivers where the purpose of the statute is to generate revenue.”

“From the bench, [Judge Jones] said he had read Judge Yeatts‘ opinion and said he agreed with it,” said G. Barton Chucker, a lawyer who represented Mr. Fields.

The rulings mean drivers convicted in Henrico County and Richmond are immune from the additional fees.

Judge Yeatts referred Mr. Price’s case to Henrico County Circuit Court, and a hearing is scheduled for Wednesday.

Mr. Chucker said he was not sure whether the state would appeal Judge Jones‘ decision.

Lawyers and law professors said legal challenges would continue throughout the state, clogging local traffic courts and threatening to generate a patchwork of enforcement policies across Virginia.

“It’s going to be kind of scattered rulings,” Mr. Chucker said.

University of Richmond law professor Carl Tobias agreed. “I bet other judges will rule it is constitutional,” he said.

Lawyers suggest that the state Supreme Court ultimately will answer the constitutionality question.

“That is going to take time,” said Corinne J. Magee, a lawyer from McLean who plans to challenge the fees in district courts in Loudoun and Spotsylvania counties.

She predicted the earliest the Virginia Supreme Court would hear the case would be in November.

The civil remedial fees are sewed into the multibillion-dollar transportation package that Gov. Timothy M. Kaine, a Democrat, and the Republican-controlled General Assembly hammered out earlier this year and touted as “landmark legislation.”

The fees went into effect July 1.

In Virginia, fees cannot be imposed on out-of-state drivers. Calling the penalty a “fee” was the only alternative, Mr. Kaine said, because the state constitution states that fines — which can be imposed on out-of-state drivers — must go into the state’s Literary Fund to pay for education-related expenses and could not go toward transportation projects.

Since the fees went into effect, more than 171,000 people have signed an online petition calling for the program to be repealed. The town of Front Royal is considering ignoring the fees, and lawmakers who previously supported the plan are calling on Mr. Kaine to call a special session to revisit the issue.

Mr. Kaine, supported by Republican leaders, has denied the requests. When asked yesterday whether the latest court decision changed the governor’s mind, his spokesman Kevin Hall said, “Nope.”

At a press conference last month, Mr. Kaine and House Speaker William J. Howell, Stafford County Republican, said lawmakers should see how the fees pan out this year and visit the issue when the General Assembly convenes for its regular session in January.

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