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Virginia Supreme Court Declares NVTA Unconstitutional

by @ 11:17 am on February 29, 2008. Filed under Northern Virginia Transportation Authority, Virginia, Virginia Politics

In an opinion issued today, the Supreme Court of Virginia has declared the Northern Virginia Transportation Authority unconstitutional:

The Virginia Supreme Court today overturned a landmark measure designed to relieve traffic congestion in Northern Virginia, declaring that the creation of a regional transportation authority to levy taxes was unconstitutional.

The decision by the state’s highest court prevents the Northern Virginia Transportation Authority from financing more than $300 million a year in regional highway and transit projects. The authority has already begun collecting new taxes and fees for projects such as a new interchange on the Fairfax County Parkway and the widening of the Prince William Parkway.

Guess they’ll have to give that money back, huh ?

The opinion in Marshall v. Northern Virginia Transportation Authority is available at the Supreme Court’s website.

Here’s the money quote from the opinion, though:

Upon review of the constitutional provisions set forth above, we conclude that the Constitution, in keeping with rights enumerated in Article I, Section 6 of the Constitution’s Bill of Rights, clearly contemplates that taxes must be imposed only by a majority of the elected representatives of a legislative body, with the votes cast by the elected representatives being duly recorded. The constraints that the citizens of Virginia have placed upon the General Assembly regarding the imposition of taxes would be rendered meaningless if the General Assembly were permitted to avoid compliance with these constraints by delegating to NVTA
the decisional authority whether to impose taxes. Thus, although the Constitution does not explicitly prohibit the delegation of such decisional authority concerning the imposition of taxes, that delegation is prohibited by necessary implication, and the General Assembly may not delegate its taxing power to a non-elected body such as NVTA. See Shockley, 160 Va. at 415, 168 S.E. at 423.

The General Assembly also may not accomplish through Chapter 896, indirectly, that which it is not empowered to do directly, namely, impose taxes on the citizenry in the absence of an affirmative, recorded vote of a majority of all members elected to each body of the General Assembly. Thus, by enacting Chapter 896, the General Assembly has failed to adhere to the mandates of accountability and transparency that the Constitution requires when the General Assembly exercises the legislative taxing authority permitted by the Constitution.

If payment of the regional taxes and fees is to be required by a general law, it is the prerogative and the Function of the General Assembly, as provided by Article IV, Section 1 of the Constitution, to make that decision, in a manner which complies with the requirements of Article IV, Section 11 of the Constitution. Accordingly, we hold that the provisions of Chapter 896 permitting NVTA to impose the regional taxes and fees are invalid because they violate the Constitution. See, e.g., Commonwealth v. City of Newport News, 158 Va. 521, 545-46, 164 S.E. 689, 696 (1932). Therefore, such taxes and fees that NVTA has already imposed are null and void.

Congratulations to Bob Marshall, the Loudoun County Board of Supervisors and everyone else who took this to Court.

Updates below the fold

Update @ 1:05pm: Governor Kaine, Attorney General McDonnell, and House Speaker Howell have released the following joint statement:


~ On the Supreme Court’s ruling regarding the Northern Virginia Transportation Authority ~

RICHMOND – Governor Timothy M. Kaine, Attorney General Robert F. McDonnell, and Speaker of the House of Delegates William J. Howell today released the following statements in response to the ruling by the Supreme Court of Virginia regarding the Northern Virginia Transportation Authority:

“I am disappointed by the Supreme Court’s finding that the limited authority to impose taxes granted by the General Assembly in 2007, by an overwhelming vote by both bodies, was unconstitutional,” said Governor Kaine. “I remain committed to working with the General Assembly to ensure that the Commonwealth provides adequate funding for our transportation needs. Over the next few days, my legal staff and I will work closely with the Attorney General’s Office and members of the General Assembly to determine what alternatives are available to provide adequate transportation funding.”

“We intervened in this case as is our obligation to defend challenges to the constitutionality of legislation passed by the General Assembly,” said Attorney General Bob McDonnell. “The Virginia Supreme Court has spoken, we respect their decision, and we will advise our clients appropriately based on today’s ruling. It remains critical for Virginia’s future prosperity that we improve our transportation system.”

“The complicated decision of the Court, and its effect on the regional components of the Comprehensive Transportation Funding and Reform Act of 2007, are disappointing to those of us who continue to support improving our roads, reducing congestion and increasing mobility for all Virginians,” said Speaker William J. Howell (R-Stafford). “We will be reviewing this decision carefully and remain committed to sorting out the long-term prospects for the regional plans in a timely manner. Fortunately, the statewide components of the Act – which by themselves incorporate the largest single investment in transportation in a generation – are working right now to improve our roads, railways, and public transit.”

Update @ 3:45pm: Delegate Bob Marshall was, understandably, more elated:

FOR RELEASE: On Receipt February 29, 2008

General Assembly Violated State Constitution


Del. Bob Marshall (Republican, Manassas), candidate for the Republican nomination for the U.S. Senate, today [Friday, Feb. 29] hailed a Virginia Supreme Court decision declaring a 2007 state law unconstitutional because it granted taxing power to unelected regional transportation authorities.

“This is a great victory for Virginia’s taxpayers, for the Old Dominion’s representative government, and for the hallowed principle established at great sacrifice by our Founding Fathers of no taxation without representation,” Marshall, a lead plaintiff in the case against the Northern Virginia Transportation Authority, said.

During debate last year, Marshall contended that the statute was unconstitutional, the only member of the House of Delegates to do so. The General Assembly, after nearly four months of consideration, approved the legislation last April 4 – by the House of Delegates, 85-14, and by the state Senate, 29-10. Gov. Kaine signed the bill into law last April 11.

Marshall took the fight to court, and today the Supreme Court agreed with him, overturning a lower-court ruling by Judge Benjamin N. A. Kendrick of the Arlington County Circuit Court.

The state Supreme Court, in its 23-page opinion written by Justice S. Bernard Goodwyn and summarized on its website, held that provisions of the 2007 statute “are unconstitutional due to their delegation of the General Assembly’s power of taxation to a political subdivision that is not a county, city, town, or regional government and that is not an elected body.”

“Although the Constitution does not explicitly prohibit it,” according to the court’s opinion summary, “such delegation is prohibited by necessary implication based on the language of certain Constitutional provisions.”

The Supreme Court ruled that taxes and fee already imposed by NTVA “are null and void” and struck portions of the statute allowing NTVA to impose them.

Update @ 5:55pm: And here’s a statement from Lt. Governor Bill Bolling:

Richmond – Earlier today, the Supreme Court of Virginia issued an opinion declaring the Northern Virginia regional transportation plan approved by the General Assembly in 2007 to be unconstitutional. The court concluded that the plan violated the Constitution of Virginia because it authorized an unelected body – The Northern Virginia Transportation Authority – to impose a series of fee and tax increases in Northern Virginia localities to raise funds for transportation construction. In response to this decision, Lieutenant Governor Bill Bolling issued the following statement:

“The Supreme Court of Virginia has concluded that it was not proper for the General Assembly to delegate its taxing authority to the Northern Virginia Transportation Authority, an unelected body. I agree with the Supreme Court’s finding.

“The authority to tax is one of the most significant responsibilities of government and that responsibility cannot and should not be delegated to a body that is not directly responsible to the voters.

“I expressed these concerns when the Northern Virginia regional transportation plan was amended to remove the ability of localities to opt in or out of the plan by an affirmative vote of their local governing body. The Supreme Court has affirmed those concerns.

“We will also have to carefully review the Supreme Court’s opinion to determine what impact it will have on the Hampton Roads regional transportation plan. While there are differences in the manner in which fee and tax increases were imposed in Northern Virginia and Hampton Roads, it is my belief the Supreme Court’s decision may also invalidate significant portions of the Hampton Roads regional transportation plan.”

“Needless to say, transportation continues to be the most important issue facing Northern Virginia and Hampton Roads. Now that these provisions of the regional transportation plans approved by the General Assembly last year have been declared unconstitutional, the General Assembly will have to revisit the issue of providing adequate transportation funding to meet the needs of these important regions. I look forward to working with the members of the General Assembly to find the most responsible way to accomplish that goal.”

5 Responses to “Virginia Supreme Court Declares NVTA Unconstitutional”

  1. [...] blogging: Bearing Drift, Right Wing Liberal, Below the Beltway, BVBL and Raising [...]

  2. [...] leaders in Northern Virginia are blaming a bad plan by the General Assembly in the wake of the Supreme Court’s decision declaring the NVTA unconstitutional: RICHMOND, Feb. 29 — Northern Virginia officials reacted to the state Supreme Court’s [...]

  3. [...] Below the Beltway reviews key parts of the court opinion (here). [...]

  4. [...] before I did.  Jim Bowden, BVBL, Citizen Tom, Ric James (Hoodathunk), Jim Bacon, Doug Mataconis (Below the Beltway), and Riley (VV) were all over it – just to name a few.  In eastern VA, the decision [...]

  5. [...] some damage from the collapse of the transportation last week, which culminated last week in the Supreme Court decision declaring the regional authority taxes unconstitutional: McDonnell was a key player in bringing Senate and House Republicans together last year to try to [...]

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