1-year limit put on HOT Lanes toll enforcement

A driver once facing more than $10,000 in HOT Lanes charges beat the rap with a circuit court ruling that puts a one-year limit on toll collection actions.

Fairfax County Chief Circuit Judge Dennis J. Smith ruled the toll authority waited too long to file court actions against Toni Lynn Cooley of Fredericksburg. Because the toll enforcement mechanism is more criminal than civil, the judge said, the limitations period is only one year.

The ruling could lead to dismissal of other pending cases, one lawyer said, since the toll authority often waited for more than a year to aggregate charges before going to court.

A spokesperson for the toll operator said he could not say how many cases might be affected.

“While I can’t provide an estimate on how many cases will be impacted at this time, I would like to stress that less than 0.3 percent of all 495 Express Lanes travelers end up in court as a result of an unpaid trip,” said Michael McGurk of Transurban.

The ruling comes amid several court challenges to the hybrid criminal-civil legal mechanism designed to recover costs and penalize those who would avoid paying the tolls for using high-occupancy traffic lanes on the Washington Beltway.

Enforcement actions by the toll authority already strain the court docket at Fairfax County General District Court, and more HOT Lanes are planned for Interstates 95 and 66.

Missed tolls of $11.70

It was not clear from the pleadings or Smith’s opinion how Cooley ran afoul of the toll collectors. She had the required EZPass transponder in her car, but toll payments of $11.70 were not received, the judge said. The tolls were based on HOT Lanes trips in November 2012.

After unpaid fees mounted, the toll authority known as “Transurban” filed suit on Dec. 12, 2013.

Cooley’s lawyer, Marla J. Diaz of Falls Church, said Cooley originally was told she owed more than $10,000 in tolls, fees, penalties and court costs.

When Transurban dismissed some of its actions against Cooley in general district court, the amount demanded dropped to $2,211.70, according to Smith’s account.

Cooley was found guilty in general district court and appealed to circuit court.

In circuit court, a representative of the toll authority identified photographs of the four alleged violations. The representative said business records showed no payments for those trips.

Diaz raised a number of defenses, including constitutional issues, and Smith called for briefs by the lawyers and set a later hearing.

Smith denied Cooley’s motion to strike, ruling that Transurban had proved its case beyond a reasonable doubt. That decision left unresolved the dispute over whether the proper standard of proof is preponderance of the evidence or beyond a reasonable doubt.

Smith then turned to the statute of limitations issue.

Transurban argued the HOT Lanes statute is civil on its face and in application, and therefore should be governed by a two-year civil limitations period. The authority said the dispute was a “civil matter between two non-government parties,” according to Smith.

Cooley contended the HOT Lanes charges fall under the criminal code, which sets a one-year limit on prosecution for “any pecuniary fine, forfeiture, penalty or amercement.” Cooley pointed the HOT lane statute as referring to a “civil penalty” for violations.

Smith decided the collections mechanism was more criminal than civil.

“While this may be an action with only civil penalties, Transurban is prosecuting violators of the HOT Lanes statute in the shoes of the Commonwealth,” he wrote.

“Government actors, such as the Commonwealth, frequently bring prosecutions for civil fines and penalties,” he said. The judge said Transurban personnel were considered “conservators of the peace” for the purpose of mailing the requisite summons to alleged violators.

Smith also said judgments under the HOT Lanes law are payable to the court, with proceeds eventually transmitted to Transurban.

“As Transurban failed to file any of these actions within one year of the alleged violations, the actions are barred and dismissed,” Smith wrote.

Smith’s opinion came in Commonwealth v. Cooley (VLW 015-8-037).

“I think the one-year statute of limitations was the right decision in regard to both the law and public policy,” said Del. Scott A. Surovell, D-Mount Vernon.

Surovell said his concern is creating a system that both punishes toll cheaters while avoiding huge fines and fees for drivers who innocently miss payments.

“It’s very tricky to try to design a system where innocent people do not get punished, but will disincentivize people from cheating,” he said.

The Transurban spokesperson did not reply to a question about whether the company would appeal Smith’s ruling.

“As the court’s rulings about the enforcement process have evolved over the last few months, we will adjust our procedures to ensure we can continue to pursue unpaid toll violators in line with the court’s latest guidance,” McGurk said.

Since Smith’s ruling on the statute of limitations disposed of the case, the judge declined to weigh in on the other arguments. Left unresolved are:

• The appropriate standard of proof. Transurban said its enforcement actions should be governed by the civil standard of preponderance of the evidence. Cooley responded by pointing to language on a Transurban summons that reads, “You are presumed innocent until proven guilty beyond a reasonable doubt.”

• Standing. “Transurban” is a fictitious and unregistered name for the toll authority and cannot be used to conduct business under Virginia law, Cooley said. “Transurban” is at most a misnomer, the company responded.

• Signatures. The use of an electronic signature of an unidentified individual on the summons form violates Virginia pleading requirements, Cooley contended. Transurban responded that, even if the signatures were not individually hand signed, “they were nevertheless executed in good faith pursuant to the express terms of the HOT Lanes statute.”

• Constitutional issues. Cooley said the HOT Lanes enforcement scheme violates the excessive fines clause of the 8^th Amendment and the equal protection clause of the 14^th Amendment. Transurban defended the constitutionality of the collection procedure, and said the fines grew because Cooley resisted paying. “The vast bulk of the fees and penalties now owed are attributable to Defendant’s continued refusal to pay over a period of many months,” the company said in a brief.

Some of those unresolved issues could be addressed soon.

Falls Church attorney David Bernhard hopes to use the fictitious name argument to undo more than $10,000 in court judgments against an Alexandria woman.

He argued the case before Fairfax County General District Judge Richard E. Gardiner this month. The judge indicated he would make a written ruling, Bernhard said.

Other challenges could be coming. Last year, Bernhard’s client appeared to have posted an online message seeking fellow disgruntled HOT Lanes drivers to join a class action lawsuit.

Bernhard said many drivers facing large arrearages insist they never got notice about the situation until they were summoned to court.

“Most people are not getting the notices. I can’t believe all of these people are liars,” he said.

McGurk said most drivers who miss toll payments never get taken to court.

“The vast majority of travelers pay at the time of travel and, of those travelers who do not, most settle at the invoice or collections stage of the enforcement process,” he said.

Transurban has emphasized that it caps the number of violations sent to court for any one driver and pursues a maximum of $2,200 for administrative fees and civil penalties, regardless of the number of violations. Actual tolls and court fees can push the penalties higher, the company said.