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“Entirely
too much energy of our state police force is spent
controlling honest citizens, simply because it is
something they can succeed in doing.” --Robert
W. Burke
At
a time when state spending is projected to
increase by about some $10 billion to $12 billion dollars
in the next biennium, you would think that our
elected representatives would be able to find some
money to fund transportation. After all, they
pretend that this is the greatest funding priority
confronting our state.
Yet
the reason they cannot agree on a budget is that
they insist that new revenue streams must be
raised to fund transportation. For example, the
Senate’s most extravagant proposal proposes to
spend about $1 billion per year to tackle
our transportation gridlock.
Even
with new spending projected to grow by $12 billion
or more, we are expected to believe that we cannot
spend a penny on transportation unless new taxes
are raised. Does that make any sense? Where is all
this new spending going, if it is not going to
fund what everyone says is a priority that stands
to affect our state’s future economic growth?
We
are also told that the state Senate wants to raise
taxes to fund transportation, while the House of
Delegates wants to hold the line on new taxes and
fund transportation from existing sources. Yet,
the House in its transportation proposal still
calls for new sources of revenue.
One
such proposal is House Bill 527, which passed the
House of Delegates with an overwhelming 82 to 18
majority. It calls for the assessment of fees by
the Department of Motor Vehicles (DMV) on certain
drivers. It proposes to have DMV collect
additional civil penalties from so called traffic
abusers.
In
other words, in addition to the traffic fines they
pay upon conviction, these drivers would be
required to pay additional penalties assessed by
DMV. In this way, the House can say with a
straight face that they are not raising taxes,
while inventing a new source of revenue to fund
transportation.
This
bill has been marketed by its patron, Del. Tom
Rust, R-Herndon, as a law and order legislation
— who can be against enforcing existing laws?
And if we can raise some money for transportation
at the same time so much the better. But the bill
has fundamental flaws, not the least of which that
some of its provisions are clearly
unconstitutional.
By
examining the impact statement prepared by the
General Assembly’s Division of Legislative
Services we find that this bill is not targeting
only a minority of habitually bad drivers.
Legislative Services tells us that this bill will
affect approximately 470,000 drivers, who will get
hit with paying some $129 million annually.
There
are 5.3 million licensed drivers in Virginia. That
means that almost 10 percent of these drivers will
get hit with civil fines of up to $700 per year,
just because they have more than four points on
their driving record. They need not commit any new
infractions—as long as they have more than four
points on their record when this bill gets
enacted, they will be assessed the extra
penalties.
And
this is where this bill runs afoul of the Virginia
and U.S. Constitutions, which both prohibit ex
post facto laws. An ex post facto law is a law
that inflicts a greater punishment than the law
annexed to the crime when the infraction was
committed. The retroactivity provisions of HB 527
clearly would make this bill an ex post facto law.
The
Due Process Clause of the Fourteenth Amendment of
the U.S. Constitution requires that a person have
notice about a penalty prior to having to endure
the penalty. HB 527 obviously does not meet the
notice requirement because drivers with points on
their record had no knowledge of the size of the
penalty when they committed their traffic
offenses.
Furthermore,
the traffic abusers also will be deprived of due
process because these extra fines and penalties
cannot be appealed to a judicial body. The
Fourteenth Amendment specifically prohibits States
from depriving any person of life, liberty or
property without due process of law. The
guaranties of due process, having their roots in
Magna Carta, are considered fundamental procedural
safeguards against executive usurpation and
tyranny.
One
more point: It is bad public policy for a
government to use its police officers as a means
to generate tax revenues — the practice
resonates of the strong-arm policies pursued by
totalitarian regimes.
All
these facts clearly show that our Delegates have
given very little thought to the problems
associated with such a badly conceived bill. At a
time when revenues are flowing into the treasury
at an unprecedented rate and new spending is
projected to grow by more than 19 percent, there
is little justification for dreaming up new civil
fines or raising taxes to finance our
transportation system.
If
the General Assembly is serious about tackling our
transportation gridlock, legislators should
reprogram some of the new spending into
transportation. Anything less simply proves that
they are just posturing and not interested in doing anything about our transportation
crisis.
--
April 3, 2006
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