"Omnibus" lawsuit challenges the transportation bill

Deciding to take a broad swipe at the transportation bill, attorney Patrick McSweeney, representing eighteen plaintiffs, filed a lawsuit attacking the constitutionality of the transportation bill on many different levels. The article notes that Delegate Robert Marshall, one of the plaintiffs, requested a legal opinion on the new law from the attorney general but did not receive one. The only public response from the attorney general's office on the constitutionality of the new law is that "Virginia's laws are presumed to be constitutional. The Supreme Court of Virginia has concluded that reasonable doubt as to the constitutionality of a legislative enactment must be resolved in favor of its validity." Seems like that answer begs the question.

James City County declines to pass anti-immigration ordinance

After Prince William County and Loudoun County passed ordinances to limit services to persons determined to be "illegal immigrants," James City County Supervisors decided to look into the matter. However, county attorney Leo Rogers told the Board that "the cost of such a campaign would outweigh any benefits."

Henrico General District Court Judge dismisses civil remedial fee

Although the case was immediately appealed to the Circuit Court, Henrico County Judge Archer L. Yeatts III wrote that he believed the new law was unconstitutional, "A 'dangerous' driver is a 'dangerous' driver, whether he or she is a life-long resident of Virginia or simply passing through on his or her way to another state or country."

Bob Battle pledges to contest civil remedial fees

Virginia attorney Bob Battle announced that he is supporting a petition to repeal the civil remedial fees imposed by the General Assembly and has designed a tee shirt: Virginia is for speed traps. Meanwhile, more legislators say they will support a repeal of the law.

Michigan judge said he warned General Assembly about the failure of civil remedial fees

This article in the Washington Post, which was referenced in a comment to one of our earlier posts, includes additional details supporting much of what we wrote: much of the money is not collected, leading to additional license suspensions "creating a permanent underclass;" in New Jersey (and Michigan as we noted) studies showed that "there is no way to determine whether the fees 'conclusively impact highway safety;'" Michigan "has issued 750,000 suspension notices for failure to pay the fees;" and a Michigan judge said that prior to passage of the bill he "e-mailed all 140 legislators [in the General Assembly], explaining why he thought the program was a failure in Michigan." A study commissioned in New Jersey in response to complaints about the program found the fees disproportionately effected lower income residents, but the recommendation was not to abandon the program because "it's an integral part of New Jersey's finance system." Henry County Commonwealth's Attorney Bob Bushnell said "The way this thing works out, it is going to have an absolutely ruinous effect on financially challenged Virginians. . . To my knowledge, no one from the police was consulted. [Commonwealth's Attorneys] weren't consulted. The court clerks weren't consulted. Had it come up, I think the General Assembly would have been aware of all kinds of concerns from Virginians about the unanticipated downside to this program."
In another article, Del. L. Scott Lingamfelter, R-Prince William, now says he opposes increased fees on bad drivers."

Republican primary rules lead to lawsuit

The Republican primary for the House of Delegates 96th District was close, Sheila Noll lost to Brenda Pogge by 23 votes, and Noll alleges that improper enforcement of voting rules cost her the win in the June 9 balloting. According to Noll, the primary rules were supposed to exclude voters who had voted recently in a Democratic primary. She alleges that the rule was enforced in York County, but not in James City County. In this earlier letter to the editor, Republican candidate for Commonwealth's Attorney Richard Hill implored Noll to support Pogge.

A Commission to make divorce harder?

This article profiles a commission that aims to "to cut the state's divorce rate." The executive director for The Family Foundation says that "Everyone agrees there is a problem, and no one is attempting to solve it." Here's the group's position paper which seems to imply even more government intrusion on our lives. Yet, according to the article, "Attorney General Bob McDonnell and Lt. Gov. Bill Bolling have appointed representatives to the commission. Gov. Timothy M. Kaine likely will do the same, said Kevin Hall, the governor's spokesman."

Proposed Lobbying LEO retracted

As we surmised here when Creigh Deeds moved to the Framme Law Firm, the Virginia State Bar retracted LEO 1829. The bar received only 3 requests supporting the change that would permit state lobbyists to be employed in the same law firms as state legislators. Two of those requests came from Kaufman & Canoles, home to Senators Norment and Stolle, and Delegate Oder.

Front Royal may opt out of civil remedial fees

This article suggests that Front Royal's town council will vote to "opt out" from enforcement of the new civil remedial fees statute. That action will certainly generate some litigation, as Attorney General Bob McDonnell said, "We do not believe a locality can get out from a statewide provision."

Judge Benton to retire from Court of Appeals

This posting on the Virginia Lawyers Weekly Blog has flown under the radar: Judge James Benton will retire from the Court of Appeals effective October 1, 2007.

Governor, Speaker, and Attorney General file Motion to Intervene in Transportation Authority lawsuit

The lawsuit to determine the validity of the Northern Virginia lawsuit may have additional plaintiffs as set out in this press release.

Defending Civil Remedial Fees

Yesterday, the Governor and leaders from the General Assembly defended the imposition of civil remedial fees, sample stories are here and here. Their defense focused on the basic premise that civil remedial fees "make the roads safer." First, as we pointed out here, there is no support for that statement. No study has shown that the imposition of civil remedial fees in other states has increased road safety. Second, the spin ignores the first sentence in the new law: "The purpose of the civil remedial fees imposed in this section is to generate revenue." The word "safe" is not found anywhere in the statute. Addressing the "increase safety" argument, we ask again: If the plan achieves something not seen anywhere else and "road safety" increases, in turn decreasing the amount of civil remedial fees imposed and collected, does that mean the transportation bill will be underfunded?

Northern Virginia Transportation Authority files suit to establish its validity to raise taxes

Lost amongst the uproar of the wrongheaded civil remedial fees is the General Assembly's broad delegation of authority to regional transportation authorities. While the General Assembly contemplates a special session to review the civil remedial fees, the Northern Virginia Transportation Authority has filed this Complaint in the Arlington Circuit Court seeking "judicial authority for the validity" of the various powers delegated to the Authority. The most egregious power granted to the regional authorities is the power "To decide and vote to impose certain fees and taxes authorized under law for imposition or assessment by the Authority, provided that any such fee or tax assessed or imposed is assessed or imposed in all counties and cities embraced by the Authority." Therefore, members of the General Assembly can continue to maintain a "no tax" policy with somewhat of a straight face, because the legislature delegated that authority to several regional authorities composed of unelected board members.

Another locality legislates illegal immigrants

Loudoun County became at least the second Virginia locality to "limit illegal immigrants' access to county services and penalize employers who hire them." This issue will continue to simmer, as we noted earlier.

Profile of Virginia's "Writ of Actual Innocence"

This article reviews Virginia's statute providing an inmate the right to file a writ of actual innocence to the Court of Appeals. The article highlights the tension between the "need for finality" in court cases and the rights of innocents wrongly convicted. The article highlights that no writs have been issued either because a) we do not convict innocent people or b) the process is too complicated, depending upon which side of the issue you take. The petition is only available if the convicted person did not plead guilty. As the article highlights, at least two inmates cleared by DNA testing had pleaded guilty, which, but for the DNA testing, would have made this process unavailable to them.

Rutherford Institute steps into fray over civil remedial fees

The Rutherford Institute, a public interest law firm located in Charlottesville, has threatened to challenge the civil remedial fees imposed by the General Assembly. In a letter, Institute president John Whitehead called the fees "a misguided way of pursuing a policy of road improvement, as well as being legally questionable."

Immigration Laws

Without any direction from the federal government, we will see more local ordinances like this one from Prince William. There, county officials can require a person to show evidence of legal immigration status before providing services to that person. Although the chief of police spoke against the proposed policy, in a community where the Hispanic population approaches 20%, illegal immigration is a hot topic.

Newport News approves "Photo Red"

This article discusses Newport News' approval of photo monitoring equipment at 18 intersections. The article states that "Localities across the region are now eyeing the cameras as a way to make intersections safer." As we pointed out earlier, studies show the opposite, intersections become more dangerous.

Surprise, accidents actually increased at locations where red light cameras were installed

Among a new study's findings: "After cameras were installed, total crashes increased. The reason for this increase is that in general—whether cameras are present or not—there are more rear-end crashes than red light running crashes." The study also suggested that "red light cameras should not be implemented without an intersection-specific study of the intersection’s crash patterns and geometric characteristics." The researchers concluded that "the study did not show a definitive safety benefit associated with camera installation." The results were not surprising, because a prior VDOT study, to which we linked in a February post, reported that rear-end crashes increased after cameras were installed.

Last on Civil Remedial Fees

Although the recently implemented law regarding civil remedial fees continues to generate discussion, it is reasonable to assume the law will not go away. Other states, Michigan, Texas, New Jersey and New York have implemented similar programs (although their programs are enforced against non-resident drivers, as well). Citizens have complained that the fees create a "Debtor's Prison" where less than half the fees are actually collected and in Michigan, where only 40% of the fees have been collected, there has been no confirmation that road safety has increased. The law will be tweaked, but it will not go away because, as it says in its text, the law will "generate revenue" for the government to spend. Legislators find it easier to turn on a source of revenue than to shut it off.