Virginia Supreme Court rebuffs state in toll road case

June 7, 2008

by William C. Flook, The Examiner

The Virginia Supreme Court on Friday revived a lawsuit that would block the state's handoff of the Dulles Toll Road and deprive an 11.6-mile Metrorail extension of half its funding.

Justices reversed a March 2007 Richmond Circuit Court judge's ruling, rejecting the state's claim that it couldn't be sued under "sovereign immunity" and sending the lawsuit back to the lower court.

If successful, the legal challenge would bar Virginia from turning the toll road over to the Metropolitan Washington Airports Authority, which plans to use the revenue to fund the Dulles Metrorail project.

The suit was brought by Richmond lawyer Patrick McSweeney on behalf of two toll road users. McSweeney was instrumental in the Supreme Court's February decision that gutted the legislature's 2007 transportation funding package, declaring that unelected regional bodies like the Northern Virginia Transportation Authority (NVTA) couldn't collect taxes.

McSweeney told The Examiner the court's Friday's ruling could have even broader ramifications. He said it is the first Virginia Supreme Court decision, with some exceptions, to confront the doctrine of sovereign immunity, which shields the state from lawsuits.

"It's going to have an enormous effect," he said. "In many ways this is more profound than the NVTA case."

The legal challenge represents another looming snarl for the Dulles Metrorail extension, which just came back from the brink of failure when the Federal Transit Administration decided not to withhold $900 million in federal monies, another critical component of the rail's funding. Those dollars have not yet been guaranteed, however.

The court now will confront the lawsuit's central question: Whether the transfer of the toll road was legal without explicit approval from the legislature.

"Today's decision on a preliminary issue in [the case] by the Virginia Supreme Court does not address the core issue of whether the commonwealth may undertake this project," said David Clementson, a spokesman for Attorney General Robert McDonnell. "The commonwealth will now proceed to defend the merits of the law at issue in the Richmond Circuit Court."