The Northern Virginia Transportation Authority won the first legal challenge to its taxing responsibilities in Arlington Circuit Court Aug. 28.
Judge Benjamin Kendrick ruled in favor the authority on all counts, including an assertion that the transportation authority was unconstitutional. Attorneys for the opposition said they are likely to appeal the decision.
Loudoun County, a group of private citizens and conservative state lawmakers headed by Del. Bob Marshall (R-13) opposed the taxes and have argued that the regional governing body is not legal because it is not a traditional elected body.
"There is no other situation where you have a body with taxing authority [in Virginia] with no person elected to that body," said Loudoun County attorney Jack Roberts.
THE AUTHORITY is made up mostly of elected officials from the state, city and county government levels in Northern Virginia. Most members were elected as the head of their local branch of government, though voters have not selected them specifically to represent them on the transportation authority.
Gov. Tim Kaine (D) and the General Assembly gave the body taxing authority as part of the larger comprehensive transportation bill last spring.
LAST MONTH, authority members voted overwhelmingly to impose seven new taxes.
The package is expected to raise $300 million for regional transportation projects in Arlington County, Alexandria, Fairfax County, Loudoun County and Prince William County, City of Fairfax, City of Manassas and City of Manassas Park.
The Loudoun County Board of Supervisors and others then challenged the authority.
Roberts and Patrick McSweeney, an attorney representing Marshall and other politicians, argued the Virginia state constitution does not allow people to be elected "by proxy."
If the General Assembly had wanted to create the authority and have members elected directly to the group that would be legal, he said.
But William Broaddus, representing the Northern Virginia Transportation Authority, said that the people serving on the authority were representing the same group of voters who had sent them to office and that citizens were not disenfranchised.
"Is he any less an elected member because people did not vote him on the NVTA?" he said.
McSweeney also challenged the General Assembly's ability to create a brand new governing body with taxing powers. He said the Virginia state constitution does not give the General Assembly the power to create new regional governments.
"It is necessarily implied that some of these powers can't be designated. Taxation is one of them," he said.
The General Assembly and the governor are not specifically prohibited from creating groups like the authority with taxing power in the state constitution and so it is in the legislative body's purview, said Frank Ferguson, Virginia's assistant Attorney General.
"The bottom line, the very core of this is that the General Assembly has the authority to do anything that is not prohibited in the constitution," said Ferguson.
In challenging the legality of the authority, Loudoun was not arguing with the merits of providing more money for transportation, clarified Roberts.
"The issue in this case isn't whether we have a big transportation problem," he said.