The VLW Blog

It’s official. The civil remedial fees for motorists convicted of driving crimes ended today with the signature of Gov. Tim Kaine on Senate Bill 1 and House Bill 1243.

The emergency legislation provides for refunds for those who have already paid a portion of the fees and excuses them from further payment. It even provides that a license can’t be suspended for failure to pay the fee. Motorists are still liable, however, for the fines and costs associated with the underlying criminal offense.

The law required motorists convicted of traffic felonies and misdemeanors to pay $750 to $3,000 over 26 months in three installments. The fees drew little notice when they were enacted as a relatively small part of a package to fund state transportation projects but was attacked after publicity when it took effect in July. They generated a firestorm of opposition over their high cost and their application to Virginians but not to out-of-state drivers.

It also became obvious that they would generate only a fraction of the $65 million annually they were originally expected to produce.
“In the earnestness of trying to solve the transportation issue, a mistake was made,” said Senator Edd Houck, the sponsor of SB 1. “This was simply the wrong way to go about funding transportation. And today is the day we correct all that.”

The governor issued a press release and another statement explaining it all.

Handed down a year ago, the decision in Ford Motor Co. v. Benitez was one of the top legal news stories in 2007. In Benitez, the Supreme Court of Virginia upheld a $2,000 sanction against a defense attorney who, after discovery and a nonsuit in a products liability case, continued to press affirmative defenses with no basis in fact or law.

The case left a lot of lawyers feeling like they were going to be poised between a waiver and a sanction, fearful of forfeiting an unpleaded claim or defense on the one hand, but afraid of sanctions for doubtful claims or defenses, on the other.

The balancing act continues.

The Benitez case was topic number one yesterday at the circuit court session of the Henrico County Bar Association Bench-Bar Conference at the courthouse.

The Henrico County bench thinks there may be Benitez-based sanctions motions on the horizon.

“I haven’t had one yet, but I can see it coming,” said Judge Al Harris. Both Harris and Judge Catherine Hammond said the nonsuit in Benitez was significant, but they also pointed to the mandatory language in Virginia’s sanctions statute, Va. Code § 8.01-271.1.

“Once the motion comes before the court, if the moving party establishes the failure to have a factual basis or legal basis, the court doesn’t have any choice,” Hammond said.

“The Supreme Court is very clear, it’s a ‘shall’ situation,” Harris said.

Judges on the panel said possible sanctions scenarios could include a contributory negligence defense asserted against a passenger injured in a car crash (a la Benitez), or a plaintiff’s request for punitive damages in a contract case, or a request for attorney’s fees and costs in a tort suit.

“The Supreme Court is placing a great burden on counsel to plead and develop the case,” said Judge Burnett Miller.

Several judges agreed that if pleadings are limited, lawyers likely will have more latitude in discovery.

The general district court session dealt primarily with collections work and the need for lawyers to clean up their cases ahead of time in order to streamline presentations in court.

But one GDC judge couldn’t resist getting in a dig on civil remedial fees.

General District Court Judge Neil Steverson said it was “good to see the circuit court judges over here getting CLE hours, since we were the ones who said civil remedial fees were wrong, and now the General Assembly is agreeing.”

So much for bipartisanship.

All members of the Senate Courts of Justice Committee appeared to agree yesterday about the best response to the state’s much-maligned civil remedial fees: repeal them as soon as possible and make refunds to those who have paid them already.

Somehow, however, the committee split along partisan lines, 8-7, on several votes merely to repeal them with no emergency provision or mention of refunds.

Democrats saw that as the best way to get repeal and emergency action through the House of Delegates, which has several bills pending that would tweak the fees rather than repealing them outright. The House requires an 80 percent vote to make legislation effective on the governor’s signature, and several senators said they think that is unlikely.

On the other hand, several legislators noted, Gov. Timothy M. Kaine could sign the repeal as emergency legislation on his own hook, and it would take only a simple majority vote in each house to sustain the governor’s action.

That was way too clever for Virginia Beach Sen. Kenneth W. Stolle and his Republican colleagues. They wanted the measure to include an emergency provision and refunds. “We’re letting politics cloud our judgment,” Stolle said. “The right thing to do, and everybody at the table knows this, is to repeal this thing as quickly as we can.’ ”

Six bills that would repeal the fees were rolled into a bill sponsored by R. Edward Houck, D-Spotsylvania and eventually referred the Senate Finance Committee on a majority vote with no emergency or refund provisions.

Sen. Richard L. Saslaw, D-Fairfax, said $13 million in fees had been assessed and $4.8 million had been collected by Dec. 31. Those numbers suggest that the fees would generate far less than the $65 million that were projected for the transportation program enacted last year.

Civil remedial fees, also known as “abusive driver” fees, were a big deal in 2007. Designed as a way to raise money for roads without raising taxes, the fee scheme assessed big bucks for certain driving offenses. But only against Virginia residents. Negotiated between the governor’s office and leaders in the General Assembly, the program passed without much fanfare last winter. But when the fees took effect in July, the public complained loudly.

The General Assembly will be back in Richmond starting next Wednesday, and driver fees are on the action-item list.

Lt. Gov. Bill Bolling yesterday called for a repeal of the fees.

And Del. Dave Albo, R-Fairfax, one of the architects of the original scheme, says that the problems can be fixed. He has introduced House Bill 161, which changes the terminology and tries to address the complaints.

Now the fees are called “liquidated damage fees” and they will hit everyone, including out-of-state offenders. The bill reduces the number of offenses to which the fees apply, dropping such charges as driving without a license and reckless driving.

The Daily Press has an interview with Albo and an analysis of the measure in this morning’s edition.

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.

The furor over Virginia’s new scheme of civil remedial fees aimed at “abusive drivers” was loud during the summer, and some politicians, mostly Republicans concerned about keeping their majority, worried the fees would be a campaign issue this fall.

The hubbub has died down, but some in the GOP worry about a last-minute push in tight races. The Richmond Times-Dispatch has the story.

Narrow legal analysis may be a more effective way to attack Virginia’s civil remedial fees than broad constitutional and public policy arguments.

That could be a lesson from the case of Rajesh Cherkukuri, an Indian national who was convicted earlier this month of drunken driving in Prince William County.

Cherukuri has a Virginia driver’s license and has lived in the state for about a year. Prosecutors insisted that those circumstance made him a Virginia resident and subject for payment of $2,250 in civil fees over 26 months. The exclusion of nonresidents from liability for the fees has been the major argument opponents of the law have raised in saying that it violates the equal protection clauses of the state and federal constitutions.

Not so fast, Cherukuri’s attorney, Lou Brooks of Manassas, countered. The definition of resident in Code § 46.1-206.1 is ambiguous enough that interpretation of the term requires a look at the use of the word in other sections of Title 46.2, Brooks insisted.

General District Judge Craig D. Johnston agreed. A key concept of residence is domicile, which generally requires “the intention to remain [in a place] for an indefinite period of time.” Cherukuri doesn’t fit that definition because he is in this country on a temporary student visa and intends to return to India, Johnston wrote on Sept. 25 in Commonwealth v. Cherukuri (VLW 007-12-03).

“I conclude that the statutory exemption of nonresident students from those persons who are deemed residents for purposes of Title 46.2, including impositions of the civil remedial fee, was a deliberate exemption,” Johnston said in refusing to impose the fees on Cherukuri.

Arlington General District Judge Dorothy Clarke ruled Tuesday that the state’s new fees for “abusive drivers” are unconstitutional.

Clarke bought the defendant’s equal protection argument. The scheme applies only to state residents.

The Washington Post has the story.

A Roanoke County circuit judge has rebuffed a request to stop statewide collection of “civil remedial fees” from “abusive drivers.” The Roanoke Times reports that Judge Jim Swanson denied an injunction to a team of lawyers representing several drivers who face assessment of the new hefty fees.

The judge expressed some skepticism about their lawsuit challenging the constitutionality of the new scheme, but he delayed ruling for another day.

Yet another general district judge has upheld Virginia’s new scheme of “civil remedial fees” for “abusive drivers.” This time, the venue is Chesterfield County.

The Richmond Times-Dispatch reports that Chesterfield General District Judge Philip V. Daffron has ruled that the statute establishing the fees is constitutional. Turning back a challenge by five drivers, Daffron found that the General Assembly had a rational basis for passing the law.

The lawyer for one of the defendants said he may appeal the ruling.