- The Washington Times - Wednesday, April 16, 2008

RICHMOND — The same court that two months ago struck down Virginia’s regional transportation-financing plans is now considering a similar case challenging the state’s planned transfer of the Dulles Toll Road to the Metropolitan Washington Airports Authority.

The Virginia Supreme Court heard oral arguments yesterday in a lawsuit filed by two Northern Virginia residents against state transportation officials and agencies. The lawsuit says the transfer would violate the state constitution because it wasn’t approved by the General Assembly.

Richmond Circuit Judge Margaret P. Spencer dismissed the lawsuit in March 2007, ruling that the state has sovereign immunity against such claims. Plaintiffs Patrick R. Gray and James W. Nagle appealed, and a decision is likely in June.

In February, the court unanimously ruled that the state improperly delegated taxing power to the Northern Virginia Transportation Authority, which is not elected by the residents. The decision essentially gutted the General Assembly’s 2007 transportation funding plan.

That ruling was one of several that Patrick McSweeney, attorney for the plaintiffs, cited in arguing that the Dulles Toll Road transfer also is unconstitutional. Under the 50-year deal, 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 Washington Dulles International Airport.

The transfer is awaiting federal regulatory approval, said state Deputy Secretary of Transportation Barbara Reese.

“The governor and executive agencies exercise no power not granted by the General Assembly,” Mr. McSweeney told the court. “They acted beyond their authorization.”

State Solicitor General William E. Thro countered that the plaintiffs were arguing for a sweeping exception to the doctrine of sovereign immunity, which generally shields government decisions from lawsuits.

“Gray wants you to rule that when anyone raises a constitutional claim, there’s an exception,” Mr. Thro said. “That’s too broad.”

A key issue is whether the constitutional provision vesting power in the General Assembly is “self-executing,” which means it requires no legislative action. Mr. McSweeney says it is, while Mr. Thro argues the opposite.

“Mr. Gray is seeking to stand in the shoes of the General Assembly and protest the actions of the executive branch when the General Assembly, for whatever reason, has not chosen to protest,” Mr. Thro said.

Mr. Gray and Mr. Nagle want their tolls to go toward maintenance of the road rather than be spent on the rail project, Mr. McSweeney has said. They also are concerned that the state will relinquish control over the amount of the tolls, which range from 50 cents to 75 cents.

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