Roanoke judge allows challenge to fees to proceed

A civil challenge to Virginia’s abusive driving fees remains alive in Roanoke County Circuit Court.

Judge James R. Swanson ruled Wednesday that the doctrine of sovereign immunity does not bar a request for a declaratory judgment on the constitutionality of Virginia Code § 46.2-206.1, which established the fees as part of a $3 billion package to finance state roads.

In September, Swanson rejected a request by attorneys John P. Fishwick Jr. and Devon J. Munro for an injunction that would have prevented enforcement of the law statewide. Swanson said then that he did not believe that he had the authority to impose such a statewide ban and added that he doubts that the plaintiffs are likely to win their case on the merits.

The judge took under advisement an assertion by Assistant Attorney General Mikie F. Melis that sovereign immunity bars the civil challenge to the law. “In our system there is nothing more fundamental than the right of a citizen to challenge a law on the basis of its unconstitutionality,” Swanson wrote in Wednesday’s opinion. “By their present action, the plaintiffs herein seek nothing more. In such limited context the doctrine of sovereignty immunity is not applicable to bar the plaintiffs’ declaratory judgment action.”
The fees drew little attention during the General Assembly session during the debate over the transportation package.
However, publicity when they were about to take effect on July 1 drew a firestorm of opposition aimed at their high cost, application to relatively trivial offenses and exclusion of out-of-state drivers.
The fees range from $750 to $3,000 payable in three installments over 26 months. Proponents projected that they would eventually raise $65 million annually for state road needs.
Some general district judges have declared the fees unconstitutional, but the first three circuit judges to rule on them have upheld the authority of the legislature to impose them.