RICHMOND, Va. (WAVY) - "A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,” – Canons of Judicial Conduct for the State of Virginia
There are seven State Supreme Court Justices who will decide if tolls will come to two tunnels in Hampton Roads. And some believe one of those justices may have a conflict of interest in the case.
On Wednesday the Virginia State Supreme Court in Richmond heard arguments on both sides of the case. On one side is the Commonwealth, appealing a decision made by a Portsmouth Circuit Court judge, blocking tolls from the Downtown and Midtown tunnels.
On the other side is the Coalition Against Unfair Tolls, who say it's unconstitutional for the Virginia Department of Transportation and its private partner to have the power to set tolls without clear guidelines or standards on limiting the tolls.
Since 1903, the State Corporation Commission (SCC) has regulated public corporations, but when the General Assembly approved the Public-Private Transportation Act of 1995, the SCC was excluded as a check and balance against private profit.
"They struck that provision that the SCC had to set the rate of return. What you have done now is give VDOT and an un-elected body -- not the Corporation Commission -- the power to go to a room, close the door, and give them the power to negotiate the rate of return. That cannot be constitutional," said Patrick McSweeney, the attorney representing the coalition.
In 1995, as a member of the House of Delegates, Justice William Mims voted for the Public-Private Transportation Act. Now, Justice Mims sits as one of the judges who will decide the tunnel tolls case, which is ultimately questioning the Public-Private Transportation Act.
"He is being called as a justice to pass on a bill that he voted for as a member of the legislature," said local attorney and former Portsmouth City Councilman Steve Heretick.
Heretick was in the Richmond courtroom Wednesday. He’s not connected to the case in any way other than being a Portsmouth resident, who would have to pay toll fees if VDOT and its private partner Elizabeth River Crossings win.
On Wednesday, Justice Mims asked more questions of the attorneys than all the other justices combined. Heretick, and many others at the hearing, felt Mims used his line of questioning to support VDOT and ERC.
“Clearly, from my point of view, Justice Mims was trying to influence other justices with respect to what he believes in and his view in the ultimate outcome of the case," Heretick said. "It is a troubling issue.”
“Do you have to also challenge the constitutionality of the 1995 act?” Mims asked McSweeney in court Wednesday. “Doesn’t all the extra money raised in tolls at the tunnels have to stay with the project?”
“The General Assembly has approved money at it’s discretion,” McSweeney answered. “It can appropriate money to go anywhere it wants.”
Heretick, who has argued before the State Supreme Court many times, says there are more reasons why it’s troubling Justice Mims is hearing the tunnel tolls case. ERC’s head attorney, Stuart Raphael, is connected to Justice Mims.
"We have Stuart Raphael from Hunton & Williams [law firm], who is Justice Mim’s former law partner,” Heretick said.
Two justices already recused themselves from the case because they had connections to the case. Justice Bernard Goodwyn refused to hear the case because his wife is an attorney with Hunton & Williams.
Still, there’s another potential conflict of interest for Mims in the tunnel tolls case. In 2002 as a State Senator, Mims sponsored a resolution to create an oversight office in the transportation department for public-private partnerships.
"We have any one of three independent bases for the justice to have recused himself, and yet he didn't,” Heretick said. “ … knowing what his background is, I think every time someone pays that toll, that person will be wondering if they were treated fairly by the Virginia State Supreme Court of Virginia.”
A decision in the tunnel tolls case could be made by a vote of 4-3 with a single vote as the deciding factor.
WAVY.com reached out to Justice Mims through the Court Clerk's office, but all calls were not returned.
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