Yes, Virginia, there is a Supreme Court

By David Tanner, Land Line associate editor | 5/22/2013

The issue of tolls being considered taxes imposed by unelected individuals and therefore unconstitutional could reach the Supreme Court of Virginia later this year. A circuit judge continues to rule against a plan by the state DOT that would toll two existing tunnels to pay for a third tunnel and other highway improvements in the Hampton Roads region.

For the second time since May 1, Portsmouth Circuit Court Judge James Cales has ruled against the Virginia Department of Transportation’s attempt to convert the Midtown and Downtown tunnels into tolled facilities to finance the Elizabeth River Crossing Project.

Cales’ latest ruling on Tuesday, May 21, denied a motion from VDOT that would have allowed the transportation agency to go ahead and implement tolls in February 2014 while the courts and two sides involved in a lawsuit sort out the issue of constitutionality.

Dozens of individual plaintiffs including small-business truckers and trucking companies filed suit against VDOT and its hired bridge contractor in July 2012, citing a clause in the Virginia Constitution that prohibits unelected persons or agencies from imposing taxes.

The Elizabeth River Crossing Project would use tolls from two tunnels to build and maintain other projects, including an interchange and an extension of the Martin Luther King Freeway to Interstate 264.

Attorney for the plaintiffs Patrick McSweeney said the latest ruling clarifies the judge’s stance on several points about the toll plan and tees up the state’s attorney general’s appeal to the Supreme Court of Virginia.

“The first is, the tolls are unconstitutional because the General Assembly had given unfettered discretion (to VDOT) in setting the fees, whether they’re taxes or not,” McSweeney told Land Line Magazine.

“And the second point is, because the arrangement about bundling was for the purposes of generating revenue – it was a tax, and taxes cannot be imposed by unelected individuals,” McSweeney said.

“I represent a bunch of truckers who are plaintiffs in our case. Because there are so many waterways to be crossed down there, all of the projects are more expensive than usual,” he said.

McSweeney said the judge disapproved of campaigns by those in favor of tolls and public-private partnerships that imply that the budget would fall flat without tolls.

“There have been a lot of press releases and statements that he said were from folks in Richmond, principally the governor and governor’s spokesman, saying the world would come to an end because of his order,” McSweeney said. “That was spin intended to influence the Supreme Court.”

The attorney general’s office is preparing its appeal to the state’s high court. McSweeney says he supports any effort that expedites the case at the highest level.

“We want to get it resolved quickly. We don’t want to drag it out,” McSweeney said.

If the Supreme Court were to allow tolls, a five-axle truck would pay $4.77 to $7.36 per trip through the Midtown or Downtown tunnels depending on time of day. The plan calls for toll increases every year starting in 2016.

The Hampton Roads region continues to take steps to receive larger container ships that are anticipating the opening of a wider and deeper Panama Canal.

Virginia Attorney General Kenneth Cuccinelli II issued a statement earlier this month that said the judge’s ruling could threaten the Elizabeth River Crossing Project and do nothing to help traffic congestion in the area.

See related story:
Virginia judge rules tolls are taxes

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