VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH DANNY MEEKS, et al.,

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1 VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH DANNY MEEKS, et al., V. Plaintiffs, VIRGINIA DEPARTMENT OF TRANSPORTATION, et al.. Case No., 740-CL MOTION FOR ENTRY OF PLAINTIFFS' PROPOSED ORDER AND OBJECTIONS TO DRAFT ORDER PROPOSED BY DEFENDANTS Defendants have moved the Court for entry of their draft Final Order. Plaintiffs now move the Court for entry of their draft Final Order, which is attached to this motion as Exhibit 1 and oppose the entry of Defendants' draft Final Order. 1. Inexplicably, Defendants have submitted a draft order attributed to Plaintiffs that Defendants knew Plaintiffs did not intend to offer for entry. In addition. Defendants have selectively submitted only the first from Plaintiffs' counsel to Defendants' counsel and failed to give the Court a fair depiction of the circumstances. Attached to this Motion as Exhibit 1 is a May 7, 2013, from Patrick McSweeney to Stuart Raphael and Norman Thomas stating in part that Plaintiffs agree with Defendants that the Final Order should be faithful to the Court's May 1, 2013, ruling and that Plaintiffs were agreeable to any modifications that accomplished that resuh. Plaintiffs attach as Exhibit 2 to this Motion the draft order that they in fact now offer for entry by the Court as a Final Order. 1

2 2. Having set up a stravmian in the form of a draft order attached as Exhibit 2 that w^as merely Plaintiffs' first attempt to reach agreement with Defendants' counsel on a version to submit to the Court, Defendants oppose its entry when Plaintiffs have never asked to Court to enter that draft order. 3. Exhibit 2 to this Motion is a draft order that. Plaintiffs submit, accurately reflects the Court's ruling. Defendants' draft order does not. Unequivocally, the Court stated: "The General Assembly has exceeded its power by ceding the setting of toll rates and taxes in violation of Article IV, Section 14 of the Constitution of Virginia." Plaintiffs suggest that the reference to Article IV, Section 14 was an inadvertence and should have been a reference to Article IV, Section 1. The Court added: "I believe this is a distinguishable example set forth by the defendant because in this latest - in this particular action, the General Assembly has given unfettered power to the Department of Transportation to set toll rates without any real or meaningful parameters." This part of the ruling necessarily means that the statute in question violates the Virginia Constitution on its face. There is no other way to interpret this aspect of the Court's ruling. There is also no way to read the Public- Private Transportation Act other than to lack the parameters or adequate standards to limit and guide the discretion exercised by the Virginia Department of Transportation and other "responsible public entities." Yet, Defendants argue that the Court did not rule the PPTA unconstitutional on its face on the grounds that it lacks adequate standards. 2

3 4. Defendants argue that the Court committed reversible error by failing to interpret the PPTA to avoid a constitutional violation if possible and would compound that error by applying its ruling to other PPTA projects. With respect to the standardless delegation aspect of the ruling, there is only one reading of PPTA possible and that reading applies to all toll-setting pursuant to the PPTA. This Court is not in the business of rewriting the General Assembly's statutes to suit litigants before it. 5. Contrary to Defendants' assertion. Plaintiffs have indeed demonstrated that the tolls authorized by the Comprehensive Agreement in this case are unreasonable in that the tolls may be increased annually for the remainder of the 58-year term of that agreement, ERCO may earn as much as 13.5% return on investment, and the profit above what ERCO may earn after project expenses will be payable to VDOT. The constitutional violations in this case do not require Plaintiffs to prove in detail how the tolls would affect them, just as the challengers mmarshall v. No. Va. Transp. Auth., 275 Va. 419, 687 S.E.2d 71 (2008) were not required to demonstrate that the taxes and fees in that case were unreasonable. The statute in question there was declared unconstitutional on its face simply because the General Assembly violated Article IV, 1 in granting unelected individuals the power to impose the taxes and fees in Va. Acts 2007 c Plaintiffs do not request an expansive ruling. They ask the Court to enter an order that the Constitution requires. Defendants persist in arguing that some variant of estoppel prohibits the Court from ruling that the PPTA is unconstitutional because such a ruling would affect other projects. No such estoppel doctrine exists. 3

4 See Terry v. Mazur, 234 Va. 442,454, 362 S.E.2d 904, (1987)(that the General Assembly has enacted similar legislation in the past that has not been challenged as unconstitutional is not a basis for refusing to declare such legislation invalid when it is challenged). The final order should clearly state that the PPTA is unconstitutional to the extent it delegates toll-setting power without adequate standards and that the tolls in this case are invalid because, as a consequence of the bundling of facilities for revenuegenerating purposes, they are taxes that may not be imposed by unelected officials. While one part of the ruling is that the PPTA is unconstitutional on its face, the other part is that the tolls are invalid in the circumstances of this case. 7. As Plaintiffs made clear in their briefs and in oral argument, the General Assembly may bundle facilities for revenue-generating purposes, but in light of Marshall v. No. Va. Transp. Auth., the General Assembly may not delegate the power to impose tolls for the use of such bundled facilities to unelected individuals. The validity of the bundling is not at issue in this case, but the fact that the kind of bundling here is for revenue-generating purposes makes the tolls imposed for the use of the bundled facilities taxes. 8. While Defendants' proposed Final Order does not reflect the separate aspects of the Court's ruling. Plaintiffs' proposed Final Order does and, therefore, provides a preferable statement for purposes of appeal and simply understanding the Court's judgment. 9. As a stay pending appeal is not warranted in these circumstances, no provision for a stay is included in Plaintiffs' proposed Final Order. 4

5 The Court should enter a Final Order as proposed by Plaintiffs in Exhibit 1 attached hereto. Respectfully submitted, DANNY MEEKS et al. By I /Counsel: Christopher I. Kachouroff VSB #44216 DOMINION LAW CENTER, P.C Office Place, Suite 101 Woodbridge, Virginia (703) ckl@trialjustice.net Patrick M. McSweeney VSB # John Tree Hill Road Powhatan, Virginia (804) pmcsweeney.esq@gmail.com Robert J. Cynkar VSB #23349 CuNEO, GILBERT & LADUCA, LLP 106-A South Columbus Street Alexandria, Virginia (703) rcynkar@cuneolaw.com CERTIFICATE OF SERVICE I certify that on May 17, 2013, a true and accurate copy of the foregoing was sent by and first class mail to the following counsel for Defendants: 5

6 Kenneth T. CuccinelU, II E Duncan Getchell, Jr. egetchell@oag, state, va. us Richard F. Neel state. va. us J. Kennerly Davis, Jr. kdavis@oag. state. va. us Norman A. Thomas nthomas@oag. state. va. us Jeffrey R. Allen j rallen@oag. state, va. us Ellen M. Porter eporter@oag. state, va. us Michael H. Brady mbrady@oag. state, va.us Office of the Attorney General 900 East Main Street Richmond, VA Stuart A. Raphael Hunton 8c Williams LLP 1751 Pinnacle Drive, Suite 1700 McLean, VA sraphael@hunton.com Robert M. Tata Hunton & Williams LLP 500 East Main Street, Suite 1000 Norfolk, VA btata@hunton.com J. Peter Coll Jr. Orrick, Herrington & Sutcliffe LLP 51 West 52"" Street New York, NY pcoll@orrick. com 6

7 5/2Q/13 Gmail - Meete v. VDOT - draft final order Meeks v. VDOT - draft final order Patrick McSweeney <pmcsweeney.esq@gmail.com> To; "Raphael, Stuart" <sraphael@hunton.com>, dgetchell@oag.state.\/a.us Tue, May 7, 2013 at 1:31 PM Stuart and Duncan, We appreciate your attempt to get the order in a form to be entered. After discussion, we are unwilling to agree to a stay and prefer to ha\ the language we propose with any reasonable changes that you suggest to confonn the order to Judge Cales's actual ruling from the bench. We prefer to conect his inadvertent reference to Art. IV, Sec. 14 instead of Art. IV, Sec. 1 rather than fomially ask him for clarification of his ruling. I also neglected t include language that all matters before the Court had been ruled upon and directing the Clerk to close the file, which I will add. My colleagues want to participate in any call you two may want to have as a follow-up, but wont be available until tomorrow morning. I hope that we can resolve this today without waiting for a call. Let me know. Pat Patrick M. McSweeney Attorney at Law 3358 John Tree Hill Road Powhatan, VA (804) FAX (877) NOTICE: If you are not the intended recipient of this message, you are not authorized to use the information contained in this message in an)^ manner, please delete this and notif>' the sender of this inadvertent transmission by return . 1 https ://mail.goog le.corivmail/uy2/?ui=2&il^f79ee2b57e&view= pt&search= sent&th= 13e8CI0c281 a46ea0 1/1

8 Exhibit 2 8

9 VIRGINIA: DANNY MEEKS, et al., IN THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Plaintiffs, V. ) Case No. 740-CL VIRGINIA DEPARTMENT OF TRANSPORTATION, et al.. Defendants. FINAL ORDER THIS ACTION came before the Court on May 1, 2013, on the parties' cross-motions for summary judgment, filed pursuant to the Consent Order entered by the Court on December 19, 2012, and upon consideration of the pleadings, the exhibits submitted in support of the motion for summary judgment and cross-motion for summary judgment, the legal memoranda submitted on behalf of the parties, and the argument of counsel, and IT APPEARING TO THE COURT, for the reasons state from the bench, that the motions should be resolved as follows, it is, therefore, ORDERED that: L Defendants' motion for summary judgment is granted as to Counts 3-6, and Plaintiffs' cross-motion for summary judgment is denied as to those counts; Count 6 is dismissed with prejudice, and Counts 3-5 are dismissed without prejudice, 2. Defendants' motion for summary judgment is denied as to Counts 1-2, and Plaintiffs' cross-motion for summary judgment is granted as to those counts to the extent that the General Assembly has exceeded its authonty by ceding the setting of toll rates and taxes in the circumstances of this case for the use of facilities that have been bundled for revenue-producing 1

10 purposes in violation of Article IV, I of the Constitution of Virginia and to the extent that the General Assembly has given unfettered power to the Virginia Department to set toll rates without any real or meaningful parameters in violation of Article IV, 1 of the Constitution of Virginia. THIS ORDER IS FINAL. ENTER. Dated: Judge James A. Cales, Jr., Presiding WE ASK FOR THIS WITH RESPECT TO COUNTS 1 AND 2 AND PRESERVE OUR OBJECTIONS TO THE DENIAL OF SUMMARY JUDGMENT ON COUNTS 3, 4, 5 and 6: PLAINTIFFS, DANNY MEEKS, et al. By: Patrick M. McSweeney (VSB 5669) 3358 John Tree Hill Road Powhatan, VA (804) (877) (fax) pmcsweeney.esq@gmail.com Robert J. Cynkar (VSB 23349) Cuneo, Gilbert & LaDuca, LLP. 106 A South Columbus Street Alexandria, VA (703) (202) (fax) rcynkar@cuneolaw. com Christopher I. Kachouroff (VSB 44216) Dominion Law Center, PC Office Place, Suite 101 Woodbridge, VA (703) (703) (fax) ustice.net 2

11 SEEN AND OBJECTED TO FOR THE REASONS STATED IN DEFENDANTS' PLEADEVGS AND LEGAL MEMORANDA AND DURING THEIR ORAL ARGUMENT: VIRGINIA DEPARTMENT OF TRANSPORTATION By; E. Duncan Getchell (VSB 14156) Solicitor General of Virginia va.us Richard F. Neel (VSB 26775) Deputy Attorney General state. va. us J. Kennerly Davis, Jr. (VSB 18179) Deputy Attorney General kdavi state.va.us Jeffrey R. Allen (VSB 17710) Senior Assistant Attorney General j rallen@oag. state.va.us Ellen M. Porter (VSB 71373) Assistant Attorney General eporter@oag.state.va.us Norman A. Thomas (VSB 20632) Assistant Attorney General nthomas@oag. state.va.us Office of the Attorney General 900 East Main Street Richmond, VA (804) (phone) (804) (fax) Counsel for Defendant Virginia Department of Transportation ELIZABETH RIVER CROSSINGS OPCO, LLC By: Stuart A. Raphael (VSB 30380) Hunton & Williams LLP 1751 Pinnacle Drive, Suite 1700 McLean, Virginia (703) (phone) (703) (fax) sraphael@hunton.com Robert M. Tata (VSB 30101) Hunton 8c Williams LLP 500 East Main Street, Suite 1000 Norfolk, Virginia (757) (phone) (757) (fax) btata@hunton. com - and- J. Peter Coll Jr., Esq. (pro hac vice) Orrick, Herrington & Sutcliffe LLP 51 West 52nd Street New York, New York (212) Counsel for Defendant Elizabeth River Crossings OpCo, LLC 3

Case 2:12-cv MSD-TEM Document 4 Filed 12/26/12 Page 1 of 11 PageID# 25

Case 2:12-cv MSD-TEM Document 4 Filed 12/26/12 Page 1 of 11 PageID# 25 Case 2:12-cv-00642-MSD-TEM Document 4 Filed 12/26/12 Page 1 of 11 PageID# 25 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Norfolk Division LAUREN GREY-IGEL, on behalf of : Herself and all