Bacon's Rebellion

Democracy Thrives in Sunlight

The Equal Protection Clause

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by

James A. Bacon
in

The Equal Protection Clause, of the Fourteenth Amendment to the United States Constitution, provides that “no state shall… deny to any person within its jurisdiction the equal protection of the laws.” The Equal Protection Clause can be seen as an attempt to secure the promise of the United States’ professed commitment to the proposition that “all men are created equal” by empowering the judiciary to enforce that principle against the states.

A fundamental principle behind this clause is that when two people are accused of having committed the same offense, they should receive equal punishment, all other circumstances being similar. Another way to say this is that the punishment for the same offense shouldn’t differ based socio-economic class, residence, gender, race, etc.

The Traffic Abusers provision of HB 3202, calls for drivers convicted of misdemeanors to pay the customary fines, plus some outrageous civil penalties in excess of $1,000 that will be collected over a three year period. Furthermore, drivers with more than eight demerit points on their driving record will be subjected to additional civil penalties that will be collected annually.

If HB 3202 is enacted into law, the Virginia Department of Motor Vehicles (DMV) will be responsible for issuing notices and collecting the surcharged civil penalties. However, HB 3202 is silent as to how these penalties will be collected from drivers that commit traffic infractions in Virginia but who are licensed in another state.

The Virginia DMV has no authority over drivers from other states. The courts will be able to collect the traffic fine and perhaps the civil penalty due for the first year, but will be unable to collect the civil penalties in succeeding years, unless the offender pays them voluntarily.

Additionally, the fact that the DMV will have no access to the out-of-state driver’s history, they will be unable to assess or collect the additional penalties called for under HB 3202 from out-of-state drivers that have more than eight demerit points on their records.

These disparate treatments of out-of-state vs. in-state drivers place the traffic abuser provisions called for under HB 3202 on a collision course with the equal protection clause. If this bill gets enacted, any Virginia driver facing these civil penalties could and should challenge them in federal court.

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10 responses to “The Equal Protection Clause”

  1. Ray Hyde Avatar
    Ray Hyde

    OK, how does this idea square with your suggestion that we have two separate taxation rules according to the principles of Henry George?

  2. Ray Hyde Avatar
    Ray Hyde

    Sorry, Phil.

    I meant to say, how does this square with JB’s idea about dual taxation schemes.

  3. Phil Rodokanakis Avatar
    Phil Rodokanakis

    Ray: I’m not sure I follow. This deals with the section in HB3202 calling for civil penalties on bad drivers. Perhaps Jim can comment on the dual taxation idea.

  4. Jim Bacon Avatar
    Jim Bacon

    Ray is referring to the idea originated by Ed Risse (and one that I’m intrigued by) that would define a “clear edge” around metropolitan areas, establish a “Henry George” tax regime within the clear edge, which would tax land but not the improvements upon it, and would establish a reverse Henry George tax regime outside the clear edge, which would tax improvements, not the land.

    The objective would be to create market incentives for development inside the clear edge, and take development pressure off farmers and foresters outside the clear edge. As I see it, this would be a market-based alternative to an urban growth boundary like the one around Portland.

    I don’t see this as an equal- protection-under-the-law issue. Everyone would be taxed on the same basis inside the clear edge, and likewise outside. Virginia has already established a precedent of taxing people at different rates if they are located inside “special tax districts.”

  5. Larry Gross Avatar
    Larry Gross

    For traffic issues – as long as everyone is treated the same in each state it is okay if that law is the province of the State and not Federal.

    Though – I am no lawyer nor have I stayed in a Holiday Inn..

    The Henry George thing – I am not so sure about and it might be useful for someone who knows Virginia Law to weigh in on that.

    I’d hate to see that being used as a lynchpin for clear edge – and it’s dead in the start box….

    Taxing Districts relate directly to infrastructure that benefits the folks in the tax district.

    There are ongoing questions with regard to how far away infrastructure can be built with the proceeds of tax districts or even proffers for that matter.

    I would think that incorporated cities with “clear” boundaries do have the ability to charge for services but I’d have to be convinced that a county could draw a boundary and then treat folks differently just because of the boundary and not specific services or infrastructure.

    The more I type – the more I realize that I don’t know squat about this…

    for instance, how can land-use taxation work?

    how can older folks get land tax breaks?

    surely one of the BR bloggers has the poop on this…

  6. Groveton Avatar
    Groveton

    “How can older folks get land tax breaks?”?

    Why should they?

    I have been told that 80% of the wealth in the United States is owned by those 55 years old and older.

    Shouldn’t the tax breaks go to the working middle class families who can’t make ends meet – on two incomes?

    Or – here’s an Equal Protection thought – don’t have tax breaks. For anyone.

  7. Phil Rodokanakis Avatar
    Phil Rodokanakis

    Groveton said: “here’s an Equal Protection thought – don’t have tax breaks. For anyone.”

    I agree! That’s why we need to move away from the income based tax system to a goods and services tax system, where you pay the tax at the time you consummate the transaction, like the sales tax.

    And to give low income folks a break, you give them a refund at the end of the year for all the taxes they paid up to a certain amount based on their actual income for that year. That’s the general premise behind the FAIR TAX, which was receiving some attention a while ago, but seems to have died recently.

  8. Larry Gross Avatar
    Larry Gross

    I AGREE with Groveton and Phil completely.

    Let’s get out of the business of encouraging people to scam and game the system … and use a consumption tax – and yes, at year end, pick an income level and refund back to those below that level.

    We’ve created a generation, no perhaps, two generations of people and an entire industry predicated on finding and exploiting loopholes – some of then intentionally put into the law to start with.

    And it’s worse than that, because companies know that it is possible to have exceptions made in laws, money is made “available” to those who are so inclinced to pursue those legal loopholes…

  9. NoVA Scout Avatar
    NoVA Scout

    An issue raised by the comment and the thread is the wisdom of using of monetary penalties (criminal or otherwise) for revenue streams. While Phil R advances a theory as to why the proposed penalties would violate the EP requirements of the national constitution, I would hate to lose the thought that it is virtually, if not absolutely, always a bad idea to create penalty levels based on needs to raise revenues. That is clearly what has happened here and the Governor ought to X it out on that basis alone. It distorts the entire enforcement/justice system to be have the State Troopers and court system jonesing around for money to run the place instead of just trying to maintain order and the public safety (a big enough job in any circumstance).

  10. Larry Gross Avatar
    Larry Gross

    I agree. It’s not only a dumb concept and a bad idea – it’s actually being trumpheted by the conservative “no tax” guys as a way to get revenues without raising taxes.

    This alone – convinces me that when a majority of R’s in the GA sign on to this idea AND make it a talking point for their legislation that people OUGHT to question their fitness for continued public service.

    This is not… small government… that works FOR people and is kept from legal harassment … this is INTRUSIVE and oppresive government coming from the very folks who parade around sporting “conservative” values and principles.

    UGH!@

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