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“It’s
like people are trying to come up with a million
different reasons to oppose the bill so it will
die." –Del. Dave Albo (R-Springfield)
Jim
Bacon called it a “Transportation
Abomination.” That may be an understatement.
Given the many problems surrounding the
Transportation Compromise bill (aka Bill
Howell’s Tax Increase), the firestorm over this
legislation goes well beyond the usual public
policy pros and cons. Flaws involve a host of
legal and constitutional issues, some of which
undoubtedly will have to be resolved by the courts
if this bill gets enacted into law.
What
follows is a partial list of the legal questions
surrounding this bill.
The
Single Object Rule
Article
IV, Section 12 of the Virginia
Constitution addresses the “Form of Laws.”
It states:
No
law shall embrace more than one object, which
shall be expressed in its title. Nor shall any
law be revived or amended with reference to its
title, but the act revived or the section
amended shall be reenacted and published at
length.
Speaker
William J. Howell, R-Fredericksburg, the patron of
HB3202, has tried to explain away this requirement
by saying that its single object is “congestion
mitigation.” But the Constitution requires that
the one object behind the bill be expressed in its
title.
The
title of HB
3202 has nothing to do with congestion
mitigation — it doesn’t even mention the word
congestion. The bill’s title is:
“Transportation funding; authority to certain
localities to impose additional fees therefor
[sic], report.” So what is the single object
that this bill embraces?
There
are so many parts to this bill one is hard pressed
to summarize them all. It purports to do a little
of everything: raising taxes, promoting an
efficiency study, calling for economic
development, increasing traffic fines, granting
new taxing authorities to localities, and the list
goes on.
The
Equal Protection Clause
The
Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution,
provides that "no state shall… deny to any
person within its jurisdiction the equal
protection of the laws." The Equal Protection
clause attempts to secure the promise that “all
men are created equal” by empowering the
judiciary to enforce that principle against the
states.
The
Traffic Abusers provision of HB 3202, calls for
drivers convicted of misdemeanors to pay the
customary fines, plus outrageous civil penalties
in excess of $1,000 that will be collected over a
three- year period. Furthermore, drivers with more
than eight demerit points on their driving record
(so called “traffic abusers”) will be
subjected to additional civil penalties that will
be collected annually.
If
HB 3202 is enacted into law, the Virginia
Department of Motor Vehicles (DMV) will be
responsible for issuing notices and collecting the
surcharged civil penalties. However, HB 3202 is
silent as to how these penalties will be collected
from drivers that commit traffic infractions in
Virginia but are licensed in another state.
Additionally,
the fact that the DMV has no ready access to the
out-of-state driver’s history means that its
unable to assess or collect the additional
penalties called for under HB 3202 from
out-of-state drivers that have more than eight
demerit points on their records.
These
disparate treatments discriminate in the
application of penalties imposed on the
"traffic abusers" based on their class
(i.e., in-state vs. out-of-state drivers). If this bill gets
enacted, any Virginia driver facing such civil
penalties should have standing to challenge them in
federal court.
Ex
Post Facto Law
The
same “traffic abuser” provisions of HB 3202
could also violate the ex post facto prohibition
of Article 1, Section 10 the U.S. Constitution,
which specifically prohibits the states from
passing an ex post facto law. Additionally,
Article 1, Section 9 of the Constitution of
Virginia imposes the same prohibition.
An
ex post facto law is one "that changes the
punishment, and inflicts a greater punishment,
than the law annexed to the crime, when
committed." Given the fact that HB 3202 calls
for using existing points in the calculation of
the additional civil penalties (i.e., demerit
points earned before the enactment of this bill),
causes this bill to run afoul of these
constitutional prohibitions.
Subject
To Appropriation Bonds
Pat
McSweeney points in an earlier column published in
Bacon’s Rebellion, “Down
the Wrong Road,” that the bonds called for
in HB 3202, are “subject to appropriation”
bonds instead of the traditional “pledge
bonds.” The Virginia Constitution calls for
pledge bonds to be approved by the voters in a
referendum.
Decades
ago New York State issued a milder version of
these “subject-to-appropriation bonds,” only
to discover that they contributed to the
bankruptcy of New York City in 1975. As a result
of that experience, New York State outlawed the
use of this type of bond in 1976, as have other
states, but not Virginia.
Missing
Code Section
Jeff
Schapiro of the Richmond Times Dispatch,
points in his column “GOP
road plan is its own pothole” that there is
a reference to the state code that does not exist.
Schapiro called this “not a small screw-up.”
It
appears that the funds collected from the Traffic
Abuser fees will be used according to the
provisions of a non-existing statute.
Specifically, these funds are to be used according
to § 33.1-23.03:10 of the Code of Virginia;
however, there is currently no such section in the
state code.
There
are many other legal questions and other issues
with HB 3202 that could be raised and which must
be addressed. But the points enumerated above
point to the many problems with this bill and
raise the obvious question: How can such poorly
written legislation come out of the General
Assembly?
So,
when Del. Albo complains that “people are coming
up with a million different reasons to oppose the
bill,” he is right. But some of these questions
should have been raised long before the General
Assembly, following a herd mentality, voted for
this bill.
It
makes one wonder how many other bad and
potentially illegal provisions are included in the
bills coming out of Richmond -- bills that do not
receive the same amount of scrutiny. Our
representatives have sworn to uphold our state’s
constitution. It looks like in the quest for
political power, laws and constitutionality are
let go by the wayside.
--
March 5, 2007
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