Transportation Policy

Virginia Speeding Fines Update

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A judge has thrown out Virginia's odious new speeding fines on equal protection grounds—the fines only apply to motorists with Virginia license plates, not motorists from other states passing through or visiting. The fines, you may remember, range from $1,000 to $3,000, and can be applied for as minor an infraction as an improper signal, or driving 15 mph over the speed limit.

Typically, House of Delegates Speaker William Howell and Gov. Tim Kaine have responded to the ruling and to mounting public criticism by promising to address the fines in the next legislative session. Unfortunately, both have said they don't plan to revoke the fines or to make them more reasonable, only to apply them to all drivers, not just Virginians. Meaning they plan to address the public outrage by applying the fines to more people, not fewer.

Also on topic, Tim Carney explained in the D.C. Examiner this week the role private developers have played in pushing the fines into law.

Meanwhile, despite the backlash, the man most responsible for the fines and who probably stands to benefit from them more than any other individual—Del. David Albo—has no opponent in the November election.

My prediction: Supporters of the measure will use the Minneapolis bridge tragedy to explain why the fines are needed to shore up Virginia's infrastructure. The state announced just this morning that 400 of its bridges aren't up to snuff.

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  1. What a “fine” day this is!

  2. With $1000 bucks on the line, I’ll go around Virginia, or more likely, fly. Sorry VA businesses, can’t afford your crazy state.

  3. Surely you can give up a little of your monetary wealth for a safer bridge, can’t you?

  4. I was considering moving from Maryland, which is rapidly pushing the boundries of entering People’s Republic status, into Virginia, where I thought at least a modicum of common sense still existed.

    Nope. Wrong again; so much for that idea.

  5. JW,

    Yes, but at least you can still get a concealed-carry license in Virginia….

  6. For some reason this really gets my blood boiling especially the bills writer being a traffic lawyer. Am I over reacting, or does this p*ss anyone else off ??

  7. “Surely you can give up a little of your monetary wealth for a safer bridge, can’t you?”

    Wealth for health? No way! I spend my money on making myself worse off, not the other way around.

  8. “Surely you can give up a little of your monetary wealth for a safer bridge, can’t you?”

    Why should these bridges be funded by a reverse lottery? If the State of Virginia needs to carry out road and bridge repairs, they should raise their fuel taxes and licensing fees, and dedicate that revenue for the projects. Instead, they have gone to this absurd backdoor system of random tolls, collected by gun-toting coppers.

  9. I’d say that there’s a 50-50 chance that this bill would just die in the legislature the next time it’s brought up.

    But…if you’re a Virginian (like me) please call your delegate or state senator. Let these fuckers know. It’ll help you to not get fucked over. And it’s your civic duty.

  10. Also, if you don’t know who your delegate is, go here.

  11. Let me get this straight:

    Virginia’s roads go to hell if people start obeying the law? That’s a heck of an incentive.

  12. The new span of the Tacoma Narrows Bridge opened a couple weeks ago. To the horror of some, it’s a toll bridge. They can never say the money’s not there to maintain and repair that sucker.

  13. Sage –

    hier the old bridge makes an appearance towards the end of the vid (Los Lobos, “Shakin Shakin Shakes”).

    Or from science class 🙂

  14. To the extent legislatures should pass laws at all, the standard of review for all laws should be at least strict scrutiny.

  15. My prediction: Supporters of the measure will use the Minneapolis bridge tragedy to explain why the fines are needed to shore up Virginia’s infrastructure. The state announced just this morning that 400 of its bridges aren’t up to snuff.

    Pandagon is already trying to say that! Except they want a huge federal tax, or something.

  16. I think gub may be right, the opposition in VA is growing pretty fierce, as people (typically) are paying attention to what their legislatures do AFTER the fact. Jesus, can tehse people not pick up a freaking newspaper once in a while? This boneheaded set of laws could have been seen coming as the Dems have been pushing for more $ for roads (Northern VA, the Dems stronghold, needs the roads is the idea) and the GOP took one of their “we’ll never raise taxes though the heavens fall” approaches. Business, which calls the tune that the GOP (especially state GOPers) boogey to started to push for the $ but the GOP had already made their promises not to raise taxes very loudly and publicly. So they were at a bind, and this idea is the result (Albo is a Republican of course). I have to say, the fines are plainly excessive, but since both sides want the $ for the roads (the GOP has a few delegates and Senators left in Northern VA who are feeling the heat and begging the party to help out; typically the rural GOPers basically told them to fly a kite until it dawned on them that if all the suburban GOPers fom NOVA lose their seats then the party as a whole loses them) I think this approach may actually be better than raising taxes on all. I mean, if you don’t do the prohibited acts then you don’t pay, and your taxes don’t go up…
    I’m suprised that Kaine is sticking with this. Why he doesn’t just say “hey, I wanted to do this though taxes in the first place, this is the GOP’s idea” and escape the heat is beyond me. In my area (very GOP) the folks who are angry about this tend to be the kind that usually are GOP. Kaine could use this as a wedge, but he’s a doofus…What a political nimrod…

  17. I live in Virginia as well and this bogus legislation has gotten a lot of people worked up around here. This ruling was predicted because of the equal protection clause of the state and federal constitution.

    The thing is, the legislature rammed this through last winter with little notice. Now that everyone’s eyeballs are on it, like gub I think this will have a fair chance of being killed.

    Funny, though, how Reason has pointed out Del. Albo’s conflict of interest in this while our local papers have been very silent on this point.

  18. RE: Kaine as a doofus, I mean, what can you say about a guy who during the campaign for guv said “I think the death penalty is bad policy and immoral, but as governor I intend to enforce it as its the law.” Well, thanks for following the rule of law, mighty nice of ya…

  19. RE: Kaine as a doofus, I mean, what can you say about a guy who during the campaign for guv said “I think the death penalty is bad policy and immoral, but as governor I intend to enforce it as its the law.” Well, thanks for following the rule of law, mighty nice of ya…

    The only reason that guy could when is because he ran against an even bigger doofus–Jerry “Hitler Ads” Kilgore.

    I am a Virginian too and very pissed off about these fines, and I don’t even drive very much. I just think its incredibly excessive punishment.

    Why don’t we just go all the way and construct a GULAG on the Eastern Shore and send all the speeders there?

  20. Mr. Nice Guy,

    Say what you will about Kaine but he done kicked the cuh-rapp outta Jerry Kilgore.

  21. Moose,

    I can’t watch it from work. Is that the old “galloping gerdie” vid? I don’t know why they didn’t just leave it that way. Oh yeah, it fell into the Sound, IIRC.

  22. Obviously the entire U.S. road and bridge system needs to be declared a Federal disaster area. Then we can get FEMA involved and the problem will be quickly and efficiently solved, right after New Orleans is up and running again.

  23. MNG,

    I agree with most of your sentiments regarding the state GOP and Gov. Kaine. There are too many rural delegates who don’t give a crap for the road needs of Northern VA, Hampton Roads and Metro Richmond. Of course, the state GOP has been steadily tilting too right for the past 10 years and getting killed in statewide elections.

  24. Oh I agree, Kilgore was one of the dumbest in a long line of incredibly dumb GOP state wide candidates here in VA (Mike “Creationist” Farris, Oliver “Plaid Shirt Means I’m Like you” North, Jim “Budget Buster” Gilmore, George “Macaca” Allen…). The GOP in VA really mines the retard farm for candidates… It’s a shame really because in Senator John Warner Virginia has one of the most statesmen GOPers in the nation (in fact I would say one of the most statesmen Senators period as with the exception of Webb [another VA statesman in teh Senate] the Dem Senators are all goofballs.)

  25. I want to make it clear that when I talk about the low IQ of GOP statewide candidates in VA I am not necessarily talking about their policy stances, but the intellectual capacity of the actual candidate. They can barely talk much less debate and seemed terrified of going of talking points. When they do, the fun begins (Macaca-Allen, the Wizard of Oz is satanic-Farris, etc.). It’s surely a function of the power of the sticks in the VA GOP and of course, our old pal the Religious Right (Falwell and Robertson and Farris all have College Inquisitions, I mean Institutions, here in VA).

  26. Kilgore was a buffoon. So was Mark Earley. (Hehe, I forgot about Mr. Creationist Mike Farris; that was a scary prospect).

    The Dems in VA have got it right because they are centrist. Unfortunately, the state Repubs still want too right candidates. And, thus, they lose.

    They may figure it out one day.

  27. MNG-

    I completely agree with you about Republican statewide candidates.

    Also, Webb and John Warner are probably the only two candidates I can vote for without feeling like I need to take a shower afterwards.

  28. Isn’t the Constitutional logic rather bogus here? We’re talking penalties for in-state residents. Why do penalties have to apply equally? I understand the argument equal-protection argument where penalties are invalid if they only apply to out-of-state, or if they are higher for out-of-state, but the reverse isn’t an equal protection issue.

    Otherwise, the logical endpoint is that all state law is invalid.

  29. Isn’t the Constitutional logic rather bogus here?

    Well, we are talking about a decision made by a U.S. court, so that would be expected.

  30. MP,

    The Constitutional logic applies because Virginia’s state constitution also has an equal protection clause (being one of the oldest, it is very similar to the federal constitution … except for that ridiculous marriage amendment passed last fall, but I digress).
    We don’t apply harsher penalties on bank robbers if they are from in- or out-of-state.

  31. Now, where this ruling could falter could be the counterargument that driving is a privilege, not a right.

  32. The Minnesota bridge disaster should cause us to take something of a critical look at bridge maintenance.

    At the very least, it would be nice to get a compelling, transparent account, presented in a truly adversarial context, of why that bridge did come down.

    If it was a systemic lack of routine maintenance, then, yeah, more money probably does need to be spent on bridges.

    (The Onion’s “Libertarian Reluctantly Calls Fire Dept” headline comes to mind here.

  33. The Constitutional logic applies because Virginia’s state constitution also has an equal protection clause (being one of the oldest, it is very similar to the federal constitution … except for that ridiculous marriage amendment passed last fall, but I digress).

    A state constitution’s equal protection clause is provide equal protection to residents of the state. It does not apply to non-residents.

    We don’t apply harsher penalties on bank robbers if they are from in- or out-of-state.

    But you could.

  34. MP, I wouldn’t think that you could (apply different sentences to different bank robbers)…it seems that the law applies to a geographical area, rather than residents of X state. Otherwise you’d end up with two different legal codes, one for citizens of residents of VA and ones for everyone else.

  35. I don’t see how this is a libertaran problem. The law was passed by a democratically elected government. There is an easy answer to this problem, drive at or below the speed limit and you don’t got any problem. All the experts agree unaminusly, the 55 limit saves lives, obey it. Don’t like it, elect someone to repeel it.

  36. Juanita-

    So I guess you support the “Eastern Shore GULAG For Speeders” program?

  37. I wouldn’t think that you could (apply different sentences to different bank robbers)…it seems that the law applies to a geographical area, rather than residents of X state. Otherwise you’d end up with two different legal codes, one for citizens of residents of VA and ones for everyone else.

    Why not? It may not be sensible, but I don’t see it as being unconstitutional.

  38. MP, what I am really going for here is that the law and the constitution of X area is restricted (and applicable) within the borders of that state.

    Could VA impose heavier fines on black out-of-staters, but not white ones?

  39. Juanita, you can’t spell for shit.

  40. It seems like VA might be able to get around this by making vehicle registration costs contingent on prior Virginia speeding tickets.

    Maybe this would raise too many loopholes where “clean” drivers register vehicles for drivers with VA tickets, tho.

  41. Could VA impose heavier fines on black out-of-staters, but not white ones?That’s a different argument, because now your segregating groups of out-of-state residents.

    My point is that I see nothing unconstitutional about levying higher penalties for in-state residents. All in-state residents are then treated equally under the state constitution. In-state residents aren’t given favorable treatment vs. out-of-state residents. The Federal concept of Equal Protection only applies when out-of-state residents are treated more adversely than in-state. Providing favorable treatment to out-of-state residents does not violate equal protection.

    Of course, Congress could make that type of favoritism illegal under the Commerce Clause, but they haven’t here.

  42. I don’t think the segregation thing is a different argument…after all, if the in-state equal protection clause does not apply across the board to out-of-staters, then VA can pretty much do what it wants with the out-of-staters and not violate its own constitution.

    My point is that the second you cross the VA line, you are under their jurisdiction, with all laws AND protections applying equally, resident or no.

  43. See, this issue is waaaaayyyy more important than George Allen’s nasty remark about Machaca (Machaca con Huevos, mmmmm).

    This affects millions of flesh and blood people who sweat and work and drive and pay taxes who get shat at by the State of Virginia. And, of course they won’t abolish, they’ll extend the courtesy of a proctology exam to all the out-of-staters as well. And we’ll have to pay, too, because we have all that reciprocity.

    BTW, what is the meaning of the trio of crosses that you see erected all over the northern Virginia countryside? Always in threes. I was once told they were secret KKK symbols. Not so secret if they’re right out in front of God and everybody said I in response.

  44. Guys Juanita is a troll. Worse. Juanita is a FAKE troll.


  45. BTW, what is the meaning of the trio of crosses that you see erected all over the northern Virginia countryside? Always in threes. I was once told they were secret KKK symbols. Not so secret if they’re right out in front of God and everybody said I in response.

    You mean you don’t have those in California? I always assumed those things were in every state. I’m not sure where they come from, either, but they are all over the state.

  46. Libertarian Reluctantly Calls Fire Dept

    LOL

  47. Also, I dislike taxes as much as the next guy but the roads in NOVA are really, really bad. A one cent sales in tax increase is far preferable to this silly back door fine business.

  48. Cesar, I’m guessing the crosses are symbolic of the crucification with Christ in the middle between the two thieves. But I can’t figure out what the significance is and why it seems to be important to so many people to put up these huge displays of (assuming here) religious belief.

  49. Cesar, I’m guessing the crosses are symbolic of the crucification with Christ in the middle between the two thieves. But I can’t figure out what the significance is and why it seems to be important to so many people to put up these huge displays of (assuming here) religious belief.

    Oh, I know it had to do with Jesus. What I mean is, I don’t know who (or what group) got the idea to put them up all over the place.


  50. SPEED KILLS!!!
    SPEED KILLS!!!
    SPEED KILLS!!!

  51. TWC Actually, those crosses are to symbolize the Crosses on the Mount (Jesus, two theives). They appear in VA, MD, and South East PA.

  52. Guys Juanita is a troll. Worse. Juanita is a FAKE troll.

    Yes but one that continually gets responses. That’s the funny part, seeing how many people respond to her nonsense.

    Juanita/Jane RULES!!!

  53. “A state constitution’s equal protection clause is provide equal protection to residents of the state. It does not apply to non-residents.”

    Maybe your state’s constition only applies to residents, but I’m pretty sure this ruling is evidence that the state of Virginia (or at least Henrico County) applies their equal protection clause to all persons in the state (or county).

  54. The Constitutional logic applies because Virginia’s state constitution also has an equal protection clause (being one of the oldest, it is very similar to the federal constitution … except for that ridiculous marriage amendment passed last fall, but I digress).

    So how in the world did the VA gay marriage amendment with restrictions on contracts and powers of attorney ever pass Constitutional muster?

  55. I don’t know if either of you (cesar or TWC) have noticed, but one of the triple crosses on 66 (or 81, I can’t remember) now glows in the dark.

    It’s very bizarre.

  56. I don’t think the segregation thing is a different argument…after all, if the in-state equal protection clause does not apply across the board to out-of-staters, then VA can pretty much do what it wants with the out-of-staters and not violate its own constitution.

    That’s right. They can. But by the 14th Amendment to the Federal constitution, they can’t do whatever. However, they can make life harder for in-state residents than for out-of state residents without violating either Constitution.

    My point is that the second you cross the VA line, you are under their jurisdiction, with all laws AND protections applying equally, resident or no.

    The laws would only apply to you equally if they are written that way. Again, I see nothing in the VA state constitution that would imply that they can’t treat in-state residents less favorably than out-of-state.

    Maybe your state’s constition only applies to residents, but I’m pretty sure this ruling is evidence that the state of Virginia (or at least Henrico County) applies their equal protection clause to all persons in the state (or county).

    You can’t use as evidence the legal opinion I’m disputing.

  57. So how in the world did the VA gay marriage amendment with restrictions on contracts and powers of attorney ever pass Constitutional muster?

    I don’t believe and amendment to a Constitution can be “unconstitutional” can it? Isn’t that the inherent nature of an amendment?

  58. The laws would only apply to you equally if they are written that way. Again, I see nothing in the VA state constitution that would imply that they can’t treat in-state residents less favorably than out-of-state..

    I don’t want to get too involved in this debate, but I think your reading of things is wrong.

    I don’t think that Constitutions merely apply to residents of a state but to anyone within a states borders/jurisdiction.

    Would someone visiting the US who commits a crime not be guaranteed due process because they are residents of another country? Could a vacationer from Canada be jailed without a trial because he doesn’t live here if he is merely accused of a crime?

    Don’t illegal aliens get Constitutional protections?

  59. I don’t believe and amendment to a Constitution can be “unconstitutional” can it? Isn’t that the inherent nature of an amendment?

    So the equal protection clause is no longer operative?

    We had to do a new amendment to undo the Volstead Act, wouldn’t VA have to do the same for equal protection (unless it was in the wording of the gay marriage amendment I guess)?

  60. De stijl,

    To the extent an amendment to a constitution (or a statute) contradicts ealier language, that earlier language must be either interpreted or limited such that there is no contradiction, or the pre-amendment language is repealed.

    You don’t need to affirmatively state “I repeal x.”

  61. “I can’t figure out what the significance is and why it seems to be important to so many people….”

    Seconded.

  62. ChicagoTom,

    Debating the status of citizens vs. non-citizens is an entirely separate debate that I’d rather not get into at this time.

  63. An Amendment (instead of a mere statute) was required to repeal prohibition, because prohibition was enshrined in the Eighteenth Amendment

  64. From the Examiner article–

    The business model appears to work this way: A developer buys land in a place that’s not well served by roads because it is either too congested…

    Is that ‘too congested’ as in, “That’s why they need more roads,” or is it as in, “No one goes up there. It’s too congested.’?

    ...or inaccessible, which means the land will be sold at a discount.

    If making roads to inaccessible places is a bad thing, the entire road system is a mistake.

    He then spends hundreds of thousands of dollars lobbying for state highway money to make his land more valuable so that he can then sell new homes for higher prices.

    The horror.

    You eventually have more roads, but because more people are using them, it’s just as congested

    So the objection seems to be that development, which brings more icky people while rewarding construction, appliance manufacturers, and local tax revenue, just enables more business activity. Harrumph! No more new stuff! I have mine, so you can pull up the ladder.

    The anti-capitalist undercurrent of this anti-development nimby
    bananaism should go down well with the H&R crowd, if comments on the
    “Robert Mugabe Exerts Downward Pressure on Prices thread are any
    indication.

  65. We had to do a new amendment to undo the Volstead Act

    No, we had to do a new amendment to undo the 18th Amendment. The Volstead Act merely clarified penalties for violating the 18th amendment.

  66. Oh, I know it had to do with Jesus

    figured you did, just running my mouth because I love the sound of my own keyboard. My remark was mostly rhetorical……….

  67. Chris, glow in the dark crosses? I’ve never driven in Va at night.

    I had a glow-in-the-dark Jesus when I was little. It was scary. Almost as scary as the glow-in-the-dark clown light shade on the overhead light in my bedroom. Fortunately, the thing would fade out after a few minutes and I could sleep. Maybe that’s why I had so dam many nightmares.

  68. The laws would only apply to you equally if they are written that way.

    Do you have any evidence to support your extraordinary claim that the equal protection clause of the VA constitution is written in such a way to restrict equal protection of the law to residents, as opposed to “all men” (which is now generally interpreted to be inclusive of all persons, regardless of gender)?

  69. re: the cross thing

    CAP, thanks, but why? It’s obviously a widespread cultural thing that is unique to the area and it fascinates me. Never seen anything like it anywhere else. Is it specific to one particular religion?

  70. TWC-

    I’ve seen them in every rural on the east coast that is south of New Jersey and east of Appalachia.

    I didn’t see them in south Florida or the Mid-West, but then again I only have been to the big cities there, so I don’t know if they have them in their rural areas. Never been to the left coast, but apparently they don’t exist there since you said you have only seen them in Virginia.

  71. The federal government can make the claim, under the commerce clause, that fines against U.S. citizens on U.S. funded roadways must be equal.

  72. The federal government can make the claim, under the commerce clause, that fines against U.S. citizens on U.S. funded roadways must be equal.

    Sure. So what? This is a court decision, not a legislative act.

  73. Oh nevermind. It wasn’t a federal judge.

  74. Owners Manual,

    What is objectionable to me is that the developers tend to shift the costs of the infrastructure to the taxpayers in general.

    So long as we have tax paid roads, the developer that creates a need for new and/or better access roads should pick up the cost and then it should be incorporated into the price of the homes that the new road serves.

    I also recognize that it’s difficult to pinpoint road costs precisely. For example, my formerly rural road has become a commuter highway and is, accordingly, trashed. Because it is a county road, the county is responsible for maint but while most users are county residents most live in incorporated cities. Gets tricky to decide who should pay, and, in reality county sales and property taxes pick up the tab so, to some extent, those who use the road do pay but it is very diffused.

  75. Cesar, tis true, indeed, no crosses on the left coast. Well, of course, every so often you’ll see a cross on a roadside memorial to a dead Harley guy or one like my neighbor’s have (single cross, lit up at night with white xmas lights). But nothing like rural Virginia.

    But we DO have Reverend Shuller’s Monument To Himself.

  76. But we DO have Reverend Shuller’s Monument To Himself.

    Good God, what a tacky Church. And I thought the Southern Baptists here had bad taste in architecture. That thing looks like it belongs in Brasilia or something.

  77. Debating the status of citizens vs. non-citizens is an entirely separate debate that I’d rather not get into at this time.

    Not to push it, but the analogy is apt.

    You are saying that non-residents of an an area don’t get constitutional protections afforded to that area by virtue of them not being resident’s despite the fact that they are in the jurisdiction of that area.

    Why does it matter if the area is defined as a state or a nation? It seems to me that the only proper reading is that if the constitution is the law of the land so to speak then it’s applies to anyone “in the land” not just to people who permanently reside there.

  78. Also, No matter what the VA constituion says, the 14th from the US Constitution says :

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    It seems pretty obvious to me that the 14th pretty much backs up the view that anyone withing the jurisdiction of a state (not just citizens of that state) is afforded equal protection.

  79. It seems pretty obvious to me that the 14th pretty much backs up the view that anyone withing the jurisdiction of a state (not just citizens of that state) is afforded equal protection.

    Except gay people apparently.

  80. You are saying that non-residents of an an area don’t get constitutional protections afforded to that area by virtue of them not being resident’s despite the fact that they are in the jurisdiction of that area.

    No, I am not. I am saying that states (Federal, State, whatever) are allowed to treat their residents/citizens less favorably than non-residents/citizens.

  81. “””Judge Archer L. Yeatts, III ruled that the civil remedial fees violated the equal protection clause by applying additional, mandatory fines of up to $3000 on Virginia drivers, but not out-of-state drivers who may have committed the same driving violation (fee description).””””

    I don’t see what the problem is. If VA has an equal protection clause in their constitution, then a state or local agency can not fine state residence more than out of state residence. If they could, it’s not equal protection.

  82. “””No, I am not. I am saying that states (Federal, State, whatever) are allowed to treat their residents/citizens less favorably than non-residents/citizens.”””

    Unless the state Constitution says otherwise.

  83. Oh nevermind. It wasn’t a federal judge.

    You can make federal claims in state court, with a few exceptions.

    MP, the commerce clause isn’t exclusively used in legislation. You could theoretically make a negative commerce clause/pre-emption type claim in this instance. It would be a terrible argument, but whatever?

    A 14th Amendment EP argument would be better.

  84. Unless the state Constitution says otherwise.

    If you’re going to argue that point, at least back it up by referring to the language in the VA Constitution (pdf) that backs up your argument.

  85. Equal Protection is indeed a weak argument against this law.

    EP analysis hinges on whether the class of folks is a protected class. Up until now, that has included: blacks (strict scrutiny) and women (intermediate scrutiny).

    From what I can remember from Con Law II, everything else is given a VERY easy pass (rational review).

    Stupid fucking law, but hardly unconstitutional.

  86. MP, fair game, but I’m not really making an argument out of it being I’m not sure what the state Constitutions says, that why I used the word unless.

    Under what basis do claim that a state can give it’s citizens less favor than others on a federally subsidised roadway?

  87. Cecil,

    Your list of suspect classes is missing many classes. And actually, you’re entirely missing EP fundamental rights doctrine, incluidng “the right to interstate travel”, which can implicate laws favoring one state resident over another. E.g., Shapiro v. Thompson, 394 U.S. 618 (1969).

  88. Shapiro v. Thompson isn’t a blanket decision that says that all state laws must treat residents and non-residents equally. And also, that decision was addressing state laws (in this case, a waiting period for welfare benefits) that put higher burdens on new residents (not non-residents). We’re talking here about putting a higher burden on in-state vs. out-of-state residents.

  89. Chris S. – maybe that is why I got into tax law.

    Anyhow, even under a fundamental rights rubric (say interstate travel), how on earth does this law infringe upon the rights of anyone to move to another state?

  90. Shapiro v. Thompson isn’t a blanket decision that says that all state laws must treat residents and non-residents equally.

    True, and it’s a fundamental rights case re: “the right to interstate travel”, which can implicate laws favoring one state resident over another. This is exactly what I said — nothing about it being a blanket prohibition. For federal con law, fundamental rights, like the right to interstate travel, are subject to strict scrutiny for almost all discriminatory classifications.

    If we allow that the right to interstate travel is implicated here, then strict scrutiny ought to apply to the discrimination against whatever class (in staters or out of staters). Now, I’m not saying that the right to interstate travel is necessarily implicated, nor do I have the time or desire to make that argument. I’m merely saying that there are many plausible arguments here.

    We’re talking here about putting a higher burden on in-state vs. out-of-state residents.

    That’s a red herring. Discrimination is discrimination, and it really doesn’t matter if you’re discriminating against your own people under federal EP (I can’t speak for VA EP).

  91. If you’re going to argue that point, at least back it up by referring to the language in the VA Constitution (pdf) that backs up your argument.

    You’re the one claiming that the law doesn’t mean what the court has ruled it means. Maybe you can back up your claim by referring back to the language of the VA constitution and the 14th Amendment of the US constitiution.

    Please explain how “all men” makes a distinction between residents and non-residents.

  92. Chris S.: thanks for making me think about this one.

    Okay, if traffic laws are so onerous so as to prevent me from traveling anywhere, I think I might have a substantive due process argument.

    Now, that I could see…

  93. Anyhow, even under a fundamental rights rubric (say interstate travel), how on earth does this law infringe upon the rights of anyone to move to another state?

    Like I said to MP, I’m only casually throwing out possibilities here to counter the oversimplified “this can’t possibly be!” type posts.

    As I’m sure you’d agree, you can’t just write off a legal argument or an entire case because it doesn’t comport with your instincts (about EP or whatever).

  94. Scooby, the jurisprudence surrounding EP rests on classes of citizens, not individuals.

    I can understand why. We can’t have a judidicial system that adjudicates every law on constitutional principles.

  95. That’s a red herring. Discrimination is discrimination, and it really doesn’t matter if you’re discriminating against your own people under federal EP (I can’t speak for VA EP).

    Yes, it does matter. If out of state residents are treated at least as well as in state residents, then the 14th Amendment does not apply.

    And EP is not a blanket equalizer either. It’s subsumed by the Rational Basis test. The court’s argument in this case is that there’s no rational basis for this fine differentiation (vs. there being one for differentiations such as for hunting licenses). However, I’m not arguing the Rational Basis angle. I’m simply arguing that states have a right to have laws that specifically apply to state citizens, as long as they aren’t to the detriment of out-of-state citizens.

  96. VA has an EP clause in its constitution (as do most former Confederate states) because they were required to have it following the Civil War in order to rejoin the union. I haven’t read VA’s strict wording either (nor really desire to as well), but I would guess it is pretty darned similar.
    Now, whether this can applied to the driving laws I’m not sure and I can see MP’s argument. Obviously, at least one judge thinks so.
    But, as I stated earlier, regarding driving in general … I thought it was viewed as a privilege, not a right. So, it may be fun how the higher courts view this ruling.

  97. I haven’t read VA’s strict wording either (nor really desire to as well), but I would guess it is pretty darned similar.

    It’s not. Article I Section 11:

    That no person shall be deprived of his life, liberty, or property without due process of law; that the General Assembly shall not pass any law impairing the obligation of contracts, nor any law whereby private property shall be taken or damaged for public uses, without just compensation, the term “public uses” to be defined by the General Assembly; and that the right to be free from any governmental discrimination upon the basis of religious conviction, race, color, sex, or national origin shall not be abridged, except that the mere separation of the sexes shall not be considered discrimination.

  98. Yes, it does matter. If out of state residents are treated at least as well as in state residents, then the 14th Amendment does not apply.

    And EP is not a blanket equalizer either. It’s subsumed by the Rational Basis test. The court’s argument in this case is that there’s no rational basis for this fine differentiation (vs. there being one for differentiations such as for hunting licenses). However, I’m not arguing the Rational Basis angle. I’m simply arguing that states have a right to have laws that specifically apply to state citizens, as long as they aren’t to the detriment of out-of-state citizens.

    MP, where on earth are you getting all of this? I’m not aware of any precedent indicating that the 14th amendment doesn’t apply to a state’s classifications targetting its own citizens, nor am I aware of anything indicating generally that a member or a representative of a class is free to discriminate against other members of the same class (e.g., VA discriminating against Virginians).

    Also, EP is not “subsumed” by the Rational Basis test. That’s merely one test applied to determine whether EP is violated under certain circumstances. It’s the baseline test; you can’t avoid arguing the “Rational Basis angle” unless you’re contending that a stricter standard applies, which wouldn’t help your argument.

  99. But, as I stated earlier, regarding driving in general … I thought it was viewed as a privilege, not a right. So, it may be fun how the higher courts view this ruling.

    The rights/privilege distinction is a part of procedural due process, not EP doctrine or even subatantive due process. Also, the distinction has been steadily eroding since at least Matthews v. Eldridge (1976). In short, it’s not applicable here.

  100. Chris S.,

    Thanks for the clarification.

  101. “””I’m not aware of any precedent indicating that the 14th amendment doesn’t apply to a state’s classifications targetting its own citizens,”””

    I would say it does apply. If I remember correctly, In Bush vs. Gore, the recount was stopped because a hanging chad was counted in one county but not another. SCOTUS ruled this violated equal rights. If a hanging chad counted as a vote in one county it must be counted in all counties, if not, it’s unconstitutional.

  102. nor am I aware of anything indicating generally that a member or a representative of a class is free to discriminate against other members of the same class (e.g., VA discriminating against Virginians)

    We are not talking about arbitrary classifications here. We are talking about in-state vs. out-of-state. That’s a political boundary, not an economic or social boundary. Political boundary issues are much more nuanced. Current precedent holds that states cannot favor in-state residents without a rational basis. However, it says nothing about whether states can disfavor in-state residents vs. out-of-state.

    And I’m not arguing the rational basis point on this thread (which was the essence of the decision) because I’m not interested in this particular case to debate if the in-state fines server a compelling state interest. That’s secondary to the argument I’m making.

  103. And I’m not arguing the rational basis point on this thread (which was the essence of the decision) because I’m not interested in this particular case to debate if the in-state fines server a compelling state interest. That’s secondary to the argument I’m making.

    MP,

    You can’t argue around rational basis. Any governmental discrimination between classes must he justified, at least, by a rational basis (or by a stricter standard depending on the class and right, as described above). Even the dumbest discrimination in the world (e.g., discrimination on the basis of juggling ability) merits rational basis scrutiny. This is unavoidable, basic constitutional law. It’s also clear from the text of the law:

    nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    The language is sufficiently broad to cover ANY discrimination against “any person”; no distinction is made regarding a state’s discrimination against its own citizens.

    You might not like the judge’s opinion because of your gut feelings about the rights of states, but let’s be clear: the 14th amendment, for better or worse, severly curtailed the rights of states. The right to discriminate, on ANY grounds, is subject to that amendment.

    Almost all discrimination can be justified by a rational basis (and some survive higher scrutiny), but no discrimination evades the 14th Amendment.

  104. Oh, incidently, even non-discriminatory laws are subject to a rational basis type 14th Amendment due process (as opposed to EP) test under the vestiges of Lochner v. New York, which is dead law for ever other purpose. Most people are unaware that Lochner is still good law for anything, but there you have it — file that away under legal trivia. So even if you could avoid EP rational basis, DP rational basis would be the default.

  105. MP,
    Under what basis do you claim that a state can give it’s citizens less favor than others on a federally subsidised roadway?

  106. You can’t argue around rational basis.

    I’m not. The law may not have a rational basis. I don’t care about that. I’m attacking the EP argument for legislation which is detrimental to in-state residents only, making the assumption that for said legislation there is a court certified rational basis.

    Remember, the court in this case argued that there was no rational basis for the discriminatory practice enshrined in this law. They did not argue that it failed an EP charge simply because there was discrimination involved.

    but no discrimination evades the 14th Amendment.You’re broad brush is unsupportable. State law is littered with discriminatory practices, from graduated state income tax levels, to licensing laws based on education levels, to fishing licenses with different in-state vs. out-of-state prices.

    Under what basis do you claim that a state can give it’s citizens less favor than others on a federally subsidised roadway?

    Under the basis that this law isn’t specifically about Federally subsidized roadways.

  107. Hey, just as long as they don’t raise taxes, right?

  108. “”””Under what basis do you claim that a state can give it’s citizens less favor than others on a federally subsidised roadway?

    Under the basis that this law isn’t specifically about Federally subsidized roadways.”””

    You call that an answer? You expected me to come up with proof of what the Virginia Constitution sez when I merely suggested it might provide equal rights, turnabout is fair play.

    It’s about citizens being fined on a federally subsidized roadway. You can’t seperate the federal from something that is partly funded by the feds.

  109. They did not argue that it failed an EP charge simply because there was discrimination involved.

    Nor did I say as much. The court held that the law failed the rational basis test under the equal protection clauses of VA and the Federal constitution.

    State law is littered with discriminatory practices, from graduated state income tax levels, to licensing laws based on education levels, to fishing licenses with different in-state vs. out-of-state prices.

    Actually, all of these laws do have to survive the rational basis test. I’m not painting with too broad a brush. This is basic constitutional law.

    This also has absolutely nothing to do with whether the roadways are federally subsidized. MP, you have a very romantic notion about state rights. The 14th amendment doesn’t distinguish between discrimination federal funding, intrastate action, a state’s treatment of its own citizens. I don’t know what else to tell you. You’ve gravely underestimated the scope of the 14th Amendment. Read it, and please tell me where you’re deriving all of these limitations.

  110. joe-

    Hey, just as long as they don’t raise taxes, right?

    Its more of a mis-allocation of funds. While Northern Virginia was choking in gridlock, the commonwealth decided to built a huge monument to inefficiency and waste right outside of Richmond–the Pocahontas Parkway. Nobody uses that road–its so empty you could have a Sunday picnic on it and come away alive. Nevertheless, it cost the state a ton of money that could have been used where it was really needed–namely, NOVA and Hampton Roads.

  111. Actually, all of these laws do have to survive the rational basis test. I’m not painting with too broad a brush. This is basic constitutional law.

    Then I misinterpreted what you wrote. You appeared to state that rational basis was subordinate to discrimination (i.e. that regardless if there was a rational basis, the mere existence of discrimination was the trump card). It’s clearly not. States are welcome to discriminate in many ways as long as there is a rational basis. Only when the discrimination violates basic Constitutional principles does rational basis need not apply and one can go direct to EP.

    However, inter-state discrimination, when dealt with in the courts, has always been with issues where the state plays favorites with its own residents. The courts have not dealt with issues where the state is discriminatory towards its own residents vs. out-of-state residents. Again, I would argue that “equal” in the 14th Amendment only ensures that a state does not treat non-residents worse than residents and that true equality being mandated only applies to state laws pertaining to in-state residents.

    And cut the “basic con law” crap. There is no precedent that contradicts my position. We are not talking about state sanctioned favoritism to state residents. That was the basis for the negative Commerce Clause decision in Granholm v. Heald. We’re not talking about states who tax out-of-state residents in excess of in-state residents (various cases). We’re talking about a state that levies a fine on in-state residents only.

    And don’t pin the “federally subsidized highways” thing on me. That’s all TrickyVic.

  112. Cesar
    Is the Pocohantas highway the 288 one that links Chesterfield and the West End of Henrico county? Cuz I think that’s a useful road (and will be even more so since those two areas are the boomtowns around Richmond).
    I won’t argue with you though that the state can spend money on roads in some pretty dumb ways though…But I take that as a given…Given they will get 8 bucks of efficiency out of every 10 bucks they spend it figures they still we need to raise taxes or do something dumb like this to fix the roads problems…

  113. Wait, we’re both in agreement that the rational basis test is part of EP, right? Just to be clear on that. This test is one that courts apply to determine whether a state action is lawful under the Equal Protection clause. We’re also in agreement that for certain classes and certain right, a higher form of scrutiny is used, right?

    Caselaw I cited (and other caselaw that exists out there) stands for the proposition that discrimination against out-of-staters is sometimes subject to a higher standard than rational basis (“strict scrutiny” for “fundamental rights”).

    I didn’t cite any cases to show that discrimination against out-of-staters or in-staters is subject to the rational basis test, because this isn’t arguable. I’m not trying to be a jerk here with all “basic con law” stuff, but no one has EVER succeeded in arguing that state discrimination of any sort is not subject, at least, to rational basis. This is a totally baseless argument given a plain reading of “equal” and “any person.” Thes are broad terms that cover any discriminatory classification. That doesn’t mean every act of discrimination is illegal, but that every act of discrimination must be analyzed by, at least the “rational basis” test.


  114. Is the Pocohantas highway the 288 one that links Chesterfield and the West End of Henrico county? Cuz I think that’s a useful road (and will be even more so since those two areas are the boomtowns around Richmond).

    Thats what Im referring to, and I never see anyone use that road. Most will just avoid the toll and go to the airport the old way.

    I just think the money could have been better spent in NOVA (or widening that godawful highway known as I-64).

  115. On second thought, no thats not the road I mean. I mean the big-ass toll road that links 95 to 295.

    http://www.pocahontasparkway.com/

    that one, the one that links the busy Bellwood-Varina corridor (sarcasm).

    288 is a useful road.

  116. Doesn’t Pocahontas Parkway go to Gretchen Wilson’s old place? No, wait…. wrong state.

  117. Now I know there is such a thing as highway robbery!!

  118. “”””And don’t pin the “federally subsidized highways” thing on me. That’s all TrickyVic.”””

    Yeah, that’s all me, not MP. Maybe it’s my own romantic interests with state rights, but I’d like to see a federal reason before the feds can get involved.

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