FAIRFAX, Va. — A Fairfax County Circuit Court judge heard oral arguments on Friday on a landmark case about the 495 and 95 Express Lanes, but told lawyers that he won’t issue a written ruling for a few weeks.
Chief Judge Dennis J. Smith is examining the law behind the Express Lanes and how Transurban enforces the law to determine whether it is constitutional, legal or within his interpretation of the statute.
Defendant Toni Cooley is facing more than $2,200 in fees and penalties after unpaid toll trips in late 2012. She accrued 11 unpaid trips because she commutes on the toll road, often twice a day to and from work. Cooley paid the original tolls within 60 days, but refused to pay administrative fees and civil penalties.
“I think these fees are very excessive. You don’t know your transponder is not working properly and these penalties keep adding up and up,” says Cooley.
Transurban originally charged her with $10,692 in fines, but eventually lowered their request to $2,200.
Cooley’s attorney Marla Diaz argued before the court that the fines were excessive and violated both the 8th Amendment and the Virginia Constitution. Smith questioned Transurban attorney Caleb Kershner on the matter, although it’s unclear which way he’d rule.
“The statute is intended to penalize people who knew they did something wrong and kept abusing the toll lanes, not somebody who had no notice that their transponder didn’t work or the bank account wasn’t properly charged,” says Diaz.
“You don’t know if you fail to make a toll payment because there are no lights and no other signals. So until you get a letter, you don’t know that you’ve violated the toll. How can they be entitled to charge you with escalating penalties when you weren’t given notice of the problem?” she adds.
Diaz likens it to a DUI case where drivers cannot face additional penalties and jail time until a court has found them guilty, then they get another DUI. Smith questioned why the 11 unpaid toll trips were considered 11 separate offenses, rather than one offense with a single $50 penalty.
“The judge played his cards close to the vest today, so I don’t think we know exactly what he’s thinking. But he asked some great questions and he’s very interested, which is what we want,” says Diaz.
The judge also quizzed Kershner and Diaz on the statute of limitations issue. Jim Diller and Stuart Holmes are co-defendants with Cooley on this issue because all three argue that Transurban had one year from the last unpaid toll to file a lawsuit. In each case, Transurban filed after one year. Kershner argues that Transurban has two years to sue.
Both also argued whether the toll lane violations are considered criminal traffic offenses or civil cases. Kershner argues it’s civil. But Smith cited a story from WTOP where the Virginia DMV suspended the license of Lisa Marie Comras after she failed to pay her judgement. He said that reporting some cases to the DMV means there could be a criminal traffic element to the law.
Transurban spokesman Mike McGurk did not comment on the specifics of the hearing on Friday. But he did talk about the issues in general.
“We do not want any Express Lanes traveler to end up in court. We’ll continue to provide travelers opportunities to pay unpaid tolls at a low cost. And we remind all of our customers to take care to ensure they’re using E-ZPass properly. We have E-ZPass tips online at ExpressLanes.com to help customers and we encourage any traveler to contact us right away if they receive an invoice or have a question,” says McGurk.
Judge Smith did not ask questions about other key issues such as the name on the summons and the signature. Transurban changed the name it used in court papers in late February after attorneys argued it wasn’t using a legal name. On Monday, Transurban executive Nicholas Barr also testified that he doesn’t actually sign the summons mailed to drivers, they are pre-printed in Pennsylvania. Diaz and other lawyers argue this is illegal, whereas Transurban disagrees.
Smith told both sides he will issue a written opinion on the issues in a few weeks. The decision will impact anyone who drives the 495 or 95 Express Lanes without a working transponder.
“We cannot speculate on what the written letter from the chief [judge] will contain but look forward to any guidance around the enforcement process that this letter will provide,” says McGurk.
