Fairfax judge upholds Dulles toll bill of $81K

Another driver has struck out with a challenge to high toll penalties on Northern Virginia highways.

This time, a Fairfax County circuit judge ruled that $81,325 in penalties and costs for unpaid fees on the Dulles toll road was not an unconstitutional burden.

The decision by Judge Michael F. Devine is MWAA v. Hagarty (VLW 016-8-028).

Devine’s decision follows a Feb. 3 ruling by Judge Robert J. Smith that validated a $1,000 fine for a fourth offense of failing to pay a 55-cent toll on the Fairfax HOT Lanes.

That earlier decision is Transurban v. D’Arco (VLW 016-8-016).

Unlike the HOT Lanes toll collectors, the airport authority that runs the Dulles toll road does not cap its penalties for unpaid tolls, said David Bernhard, the Falls Church lawyer who represented drivers in both cases.

Legislation on the governor’s desk in Richmond would impose a $2,200 cap on penalties and fees for a first conviction, among other reforms.

Now that Devine has ruled on preliminary legal issues in the Dulles case, the case against Sara Hagarty is set for a trial in May.

Hagarty was charged with 157 toll violations on the Dulles road. The unpaid tolls ranged from $1.00 to $1.75.

The fines mounted with subsequent offenses, so 154 of Hagarty’s violations each carry a fine of $500. On top of the fines, each offense brings an administrative fee of $100 and an assessment of court costs.

Bernhard argued the fines violated both the Virginia and U.S. constitutions. Devine did not agree.

Fine not ‘shocking’

Both constitutions bar excessive fines, but the standard is high, the judge said. The fine must be “so plainly disproportioned” to the offense as to “shock the sense of mankind.”

In other words, “the fine must be grossly disproportional to the gravity of the offense,” Devine wrote.

Repeatedly ignoring tolls is not a trivial offense, the judge said. It is not merely failure to pay a toll, but the failure to pay after having failed to do so numerous other times, he said, echoing language used in Smith’s earlier opinion.

The harm is not properly measured by the basic toll charge, Devine said.

“That comparison ignores the fact that repeated violations undermine a significant source of funding for the construction, maintenance and improvement of this region’s transportation infrastructure, beyond the mere $236.25 in lost toll revenue,” the judge wrote.

Non-paying drivers add to congestion facing those who pay, he added. “Also, when some drivers repeatedly use the road without paying, others will be less willing to pay tolls,” Devine reasoned.

The penalties are proportional to the conduct charged, he said, pointing to incremental increases in fines based on the number of violations.

Hagarty lacked standing to raise an equal-protection challenge to the toll statute based on possible extra penalties for Virginia drivers, Devine ruled.

The state can block vehicle registration for unpaid tolls, a penalty not imposed on out-of-state offenders, Bernhard argued. But, because Hagarty had not yet faced that penalty, the judge rejected her equal-protection argument.

Devine rejected Hagarty’s contention that the toll system gives an unconstitutional level of prosecutorial discretion to the airport authority. The law sets limits and the commonwealth showed no “arbitrary, discriminatory or malicious” use of prosecutorial discretion, the judge said.

Hagarty also raised a due process claim, because the toll scheme imposes fines on vehicle owners without regard to who was driving the vehicle. Since Hagarty did not contend she was being charged for violations of other drivers, Devine denied her due process claim.

Devine brushed aside arguments about the proper corporate name and signature on the summonses used to bring Hagarty into court. The airport authority corrected the name with an amendment.

Bernhard said those Hagarty rulings – and those of Judge Robert Smith in the HOT Lanes case – raise questions about toll collectors’ accountability for filing pleadings under the Virginia good faith pleading statute.

Trial is set May 31, Bernhard said. If Hagarty is convicted, Bernhard said his arguments could finally reach the Supreme Court of Virginia.

Lower fines?

Changes in the toll collection system could be coming. If signed by Gov. Terry McAuliffe, House Bill 1069 would provide “modest but needed reforms,” in Bernhard’s words.

For a first violation, the measure would put a $2,200 cap on civil penalties and administrative fees.

It would allow email or text notification of violations. Many drivers hit with back charges complained they never received notices by regular mail.

Accounting glitches might be reduced. A 10-day grace period would be in place for unpaid tolls and toll operators would have to twice attempt to process and collect the tolls during that period.

The bill also would lengthen the time period before the administrative fee jumps from $25 to $100. Instead of 30 days, the increase would come after 60 days.

McAuliffe has until April 10 to act on the bill.