A Henrico District Court Judge has decided that the fees on Virginian drivers which are in addition to the normal penalties are unconstitutional. Too often the judicial ends up being the last barrier between bad laws and bad policy; legislators and the executive force this state of affairs. The decision was immediately appealed by commonwealth lawyers.

Via Virginia Lawyers Weekly I think this is the actual ruling [pdf] of the Commonwealth vs Anthony Price. Note that several US states are established as commonwealths, including Virginia and Pennsylvania.

The Judge found Price guilty of driving without a licence (for the fifth time) and was fined $200 and given twelve months jail. The recently passed Virginia law - to pay for road improvement through fees on abusive drivers - required another $750.00 to be added on to the fees. Price's lawyer challenged that:

The sole issue presented by the defendant is whether such assessment on residents of Virginia, but not on non-residents, violates the Equal Protection Clauses of the Constitutions of the United States and Virginia.

It should be noted at the outset that at oral argument it was agreed by both parties that the additional fees for excessive demerit points in paragraph G of the statute are not at issue.

It was further agreed that the only issue to be decided by this Court was whether the statute bears a rational relationship to a legitimate legislative purpose, and thereby does not violate the Equal Protection Clauses.

The United States Supreme Court requires that equal protection does not judge the policy basis for a legislative decision. Under separation of powers the judicial is blind to the legislative reasons or basis for a bill. Yet the decision notes that the Virginian bill for this put the purpose of the statue in the legislation itself. This did not impact the decision.

The court rejects the speculations postulated by the Commonwealth, and mindful of its obligation to do so, has exhausted its speculation quotient in trying to conceive of any others that would be a rational basis for the distinction between resident and nonresident "dangerous drivers."

If Virginia's legislation does not distinguish or discriminate between Virginian drivers and out of state drivers then it will be constitutional by that decision. It appears the Governor Kaine will be plugging that hole.

This does not change the fact that this is bad legislation.

Virginian Politics

Virginia is a bicameral gubernatorial system. Like party politics in the United States it is dominated by the Republican and Democratic parties; but unlike the absolute nature of Australian party discipline the (D) or (R) against a senators or delegates name is no guarantee of voting intentions.

As an example this is a listing of which representatives are for repealing the speeding fines and those against it. Those that would repeal include eight democrats, five republicans and one independent. Note that the Republicans control the legislature (the governor is a Democrat). Also note that those that voted for it crossed party boundaries.

My local Senator voted against it (D), while my Delegate voted for it (R). The Republican legislature is running hard on no taxes, so they tend to hide budget increases in debt or fees. There is no doubt that North Virginia has infrastructure problems due to the rapid increase in population in the last fifteen years. If they do not want to hit the sales tax again, as they did with Mark Warner, then increasing the cost of petrol is a good form of user pays taxation.

One of our town councilors is running against the Delegate who is the incumbent. His platform is that our current delegate, despite his seniority, has not got the money or projects for transport infrastructure that this area needs. He has a sympathetic ear locally. Traffic is bad.

As voting on the bill showed support for this legislation was bipartisan as was dissent. Voting crossed party boundaries - which ironically, give voters an easy way to determine their voting for representatives without having to worry about the D, R or I next to their name on the ballot. As a liberal representative democracy should be.

Update - A judge at the Richmond General District Court has ruled it unconstitutional for the same reasons as it breaks equal protection under the law. Apparently the Governor and Legislature have just removed the discrimination against out of state drivers and plan on reintroducing the bill.

Update - It appears that the ease with which the legislation failed under equal protection (14th Amendement) will lead to more challenges to the law's constitutionality.

He had an important message about the upcoming Virginia elections. I hung up. I hate robocalls. If I could vote in Virginia Kaine would not be getting a tick on the ballot from me. He supported and signed into law the unconstitutional act which failed the equal establishment clause aimed at out of state drivers. I do not believe a separate executive exists to pass unconstitutional laws. They have a moral responsibility to acts as a rights referee and veto anything that contravenes a bill of rights. The 14th Amendment in the US Constitution is one of the few that obligates the states. Hence, in my opinion, Kaine failed his responsibilities.

I also don't like how President Bush is using the veto pen to force policy. Between that and a Republican party in the Senate that is filibustering as a minority, it is making difficult for the majority house in congress to pass a legislative agenda. The veto pen from the executive should be limited to tyrannical acts, not political acts or policy acts that the executive disagrees with. The veto is a relief valve to stop legislative tyranny, not stop legislative policy.

In other local news, the incumbent Senator for my area, Mark Herring, has progressed from County Government to the State Senate. This is his first term. he voted against the Virginia driving laws. I received literature from him recently in my mailbox which announced he was proud he voted against it. I had dealings with Herring when he was in County Government when we had issues with a road behind our house.

The local election also has one of our town councillors, Marty Martinez, running for the Virginian house. The town I live in is exceptionally well governed. It has followed that American ideal of keeping taxes low without services suffering. I think there are some services in the town that are unnecessary, however, in comparison to the county, state and federal government, the town is exceptionally tight in terms of governance.

Both Mark and Marty have been in my house when we have had local issues that have required political help and advice. If I could vote in this local district, they both would get my vote. Kaine, however, would not.