The Virginia Supreme Court threw a major monkey wrench into plans for Dulles Rail last week when it ruled that the commonwealth cannot invoke sovereign immunity to block citizens’ constitutional challenges. This landmark ruling removes a major legal obstacle that up to now prevented taxpayers from holding public officials accountable without first having to get their permission to sue. It’s also a welcome reprieve for Northern Virginia commuters who are about to be financially flattened by Dulles Rail.
The seven justices unanimously agreed that the Virginia Constitution contains “self-executing” provisions that automatically waive sovereign immunity in constitutional cases. This means two lawsuits relating to Dulles Rail now have to be heard in Richmond Circuit Court on their merits.
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And thosemerits are considerable indeed. Fairfax County residents and Dulles Toll Road commuters Patrick Gray and James Nagle object to Gov. Tim Kaine’s transfer of the toll road, a state asset paid for by local taxpayers like them, to the unelected board of the Metropolitan Washington Airports Authority without the General Assembly’s approval. Richmond lawyer Pat McSweeney — who filed both lawsuits — told The Examiner that Kaine’s unilateral transfer violates the state constitution’s separation of powers doctrine.
There are also unresolved issues raised in McSweeney’s successful lawsuit on behalf of Del. Robert Marshall. When the high court invalidated the taxing powers granted by the legislature to the similarly unelected board of the Northern Virginia Transportation Authority, it did not address the sale of $3 billion worth of transportation bonds to finance various projects, including Dulles Rail. McSweeney persuasively argues that such debt is unconstitutional unless voters first approve it in a referendum. And so far, he’s batting 2 for 2.
The General Assembly has been skirting this constitutional requirement since 1991 by calling them “subject to appropriation bonds” — implying they are somehow not legally enforceable debt, even though the state law authorizing them specifically refers to them as negotiable securities. Thanks to last week’s sovereign immunity ruling, the lower court will now be forced to address this inherent contradiction.
Taken together, both rulings represent a significant constitutional victory for all Virginians, though certainly not a final one for local commuters still stuck with the entire state share of the Dulles Rail boondoggle with no redress at the ballot box. But the high court shocked Richmond once again by sending a timely reminder to both the governor and the legislature: You work for the citizens, not the other way around.
