When a Virginia town gives a traffic ticket under its own ordinance, does the fine go to the town, or to the state Literary Fund? And should the town's fines be lumped in with the county's for the 50% rule?

Plain-English summary

The State Inspector General was conducting a special review of fines and fees collected by Virginia's General District Courts under § 3-6.05 of the 2012 Special Sessions Acts. That budget provision directed the Auditor of Public Accounts to identify localities where fine and fee collections exceeded 50 percent of the locality's total collections, with the State Comptroller required to recover half of the excess. The Inspector General was concerned that local-ordinance enforcement was diverting revenue from the Literary Fund (which receives all fines for "offenses committed against the Commonwealth" under Article VIII, § 8 of the Virginia Constitution), and that combining town and county fine revenue was creating threshold triggers neither entity would hit alone.

The AG broke the analysis into four pieces and reached the following conclusions:

1. Local ordinance fines are not "offenses against the Commonwealth." Article VIII, § 8 directs all "fines for offenses against the Commonwealth" to the Literary Fund. The AG read that phrase to reach state-law offenses, not local ordinance violations. A 2011 AG opinion had already so concluded for a specific traffic light ordinance, drawing on the Virginia Supreme Court's 1895 decision in Southern Express Co. v. Commonwealth ex rel. Walker. The 2013 opinion generalized that conclusion: ordinances adopted under § 46.2-1313 incorporating provisions from Title 46.2, Article 9 of Chapter 11 of Title 16.1, and Article 2 of Chapter 7 of Title 18.2 still produce local-law fines, not state-law fines, even though they incorporate state criminal provisions by reference.

A historical reasoning anchor: when the 1971 Constitution was adopted, former § 46.1-182 already directed fines for traffic ordinance violations "into the county, city or town treasury." The drafters and ratifiers of Article VIII, § 8 are presumed to have known this and to have ratified an interpretation consistent with it. Cf. Roanoke v. James W. Michael's Bakery Corp. (1942).

2. The fines are local revenue. Section 46.2-1308 expressly says "all fines imposed for violations of such ordinances shall be paid into the county, city or town treasury." That's where they belong.

3. The General Assembly can change this if it wants. Article VIII, § 8 also funnels into the Literary Fund "such other sums as the General Assembly may appropriate." The AG saw no constitutional impediment to the General Assembly enacting legislation directing local ordinance fines into the Literary Fund. Whether that would be a good policy choice (given the effects on local enforcement incentives) was outside the opinion's scope.

4. Town fines stay with the town, separate from the county. Section 46.2-1308 says fines go to "the county, city or town treasury." The list is disjunctive. The town is named separately from the county. Under standard statutory construction (giving each word effect), the General Assembly clearly distinguished town and county fines. If it had wanted town fines to be aggregated with county revenue, it would have said so explicitly, as it did in Va. Code § 46.2-752(A) (which sets up a sharing scheme between counties and towns for vehicle taxes). Town fines therefore should not be added to the county's revenue for purposes of the 50% threshold.

That fourth conclusion was the practical payoff. A town that aggressively enforced its own traffic ordinances did not, by doing so, push the surrounding county over the threshold for State Comptroller recovery.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The 50%-of-collections recovery mechanism in § 3-6.05 of the 2012 Special Session was a specific budget-bill provision. Whether such a provision has been retained, modified, or repealed in subsequent budget bills is a separate inquiry.

Common questions

What is the Literary Fund?
A permanent state fund established by Article VIII, § 8 of the Virginia Constitution, used principally to finance public school construction. Its sources include "[t]he proceeds of all public lands donated by Congress for public school purposes, of all escheated property, of all waste and unappropriated lands, of all property accruing to the Commonwealth by forfeiture except as hereinafter provided, of all fines collected for offenses committed against the Commonwealth, and of the proceeds of the sale of any other public property which may by law have been or may hereafter be appropriated to that purpose, together with such other sums as the General Assembly may appropriate." The opinion focuses on the "fines collected for offenses against the Commonwealth" clause.

What is § 46.2-1313?
The statute that authorizes localities to enact traffic ordinances incorporating, by reference, the provisions of state Title 46.2 (Motor Vehicles), Article 9 of Chapter 11 of Title 16.1 (Juvenile and Domestic Relations District Courts), and Article 2 of Chapter 7 of Title 18.2 (Crimes Involving Motor Vehicles). It's the legal device that lets a town adopt the entire state DUI scheme by reference into its town code, with the resulting fines staying local.

Why does incorporation by reference matter?
Because a fine for violating a local ordinance is paid to the locality, while a fine for violating a state statute goes to the Literary Fund. By incorporating state law into a local ordinance, the locality keeps the fine. The 2011 AG opinion and the 1895 Southern Express case both held that this is a permissible structural choice, not an evasion of constitutional intent.

Does the same logic apply to all local ordinances?
The opinion's reasoning is general: any local ordinance violation produces local revenue, not state revenue. But the specific statutes the AG cited (§§ 46.2-1300, 46.2-1308, 46.2-1313) deal with traffic ordinances. Other categories of local ordinances may have their own revenue allocation statutes; the analysis would need to be revisited for non-traffic contexts.

Could the General Assembly really redirect local ordinance fines to the Literary Fund?
Yes, the AG concluded. The "such other sums as the General Assembly may appropriate" clause in Article VIII, § 8 is a separate source of Literary Fund revenue. The General Assembly can legislate to direct fines that constitutionally don't have to go to the Literary Fund into it anyway. Whether the AG's reading would survive a future political fight (local governments would hate losing their fine revenue) is a separate question.

What's the relationship between the town and the county for traffic-ticket fines?
For a violation of a town ordinance prosecuted in the town court (or in district court for a town-issued ticket), the fine goes to the town. For a violation of a county ordinance, the fine goes to the county. For a violation of state law, the fine goes to the Literary Fund. The 50% threshold is calculated separately for each.

Background and statutory framework

The constitutional and statutory players:

• Va. Const. art. VIII, § 8: directs "fines collected for offenses committed against the Commonwealth" and "such other sums as the General Assembly may appropriate" to the Literary Fund.
• Va. Code § 46.2-1300: empowers localities to adopt traffic ordinances "not in conflict with" state law.
• Va. Code § 46.2-1308: directs that "all fines imposed for violations of such ordinances shall be paid into the county, city or town treasury."
• Va. Code § 46.2-1313: authorizes incorporation by reference of state Title 46.2, certain juvenile court provisions, and motor-vehicle-crime provisions.
• Va. Code § 46.2-752: separate vehicle tax/license-fee provision that includes an explicit county-town sharing scheme. Useful as a contrast: when the General Assembly wants towns and counties to share, it says so.

The interpretive framework draws on standard statutory construction principles. The AG used Roanoke v. James W. Michael's Bakery Corp. for the proposition that constitutional drafters are presumed to know prior interpretive conventions; Williams v. Commonwealth and Cook v. Commonwealth for the principle that every legislative word counts; and Barr v. Town & Country Properties and Alger v. Commonwealth for the careful-word-choice presumption.

The 1895 Southern Express decision is the doctrinal anchor: the Virginia Supreme Court held that a fine imposed under a local ordinance is not a "fine collected for an offense committed against the Commonwealth," even when the conduct also violates state law.

Citations

• Va. Const. art. VIII, § 8
• Va. Code § 46.2-1300
• Va. Code § 46.2-1308
• Va. Code § 46.2-1313
• Va. Code § 46.2-752(A), (B)
• Southern Express Co. v. Commonwealth ex rel. Walker, 92 Va. 59, 22 S.E. 809 (1895)
• Roanoke v. James W. Michael's Bakery Corp., 180 Va. 132, 21 S.E.2d 788 (1942)
• 1977-78 Op. Va. Att'y Gen. 162
• 2011 Op. Va. Att'y Gen. 150
• 2012 Op. Va. Att'y Gen. No. 11-127

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/13-003_Morehart.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

April 5, 2013

The Honorable Michael F.A. Morehart
State Inspector General
1111 E. Broad Street, 2nd Floor
Richmond, Virginia 23219

Dear Mr. Morehart:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You inquire regarding the classification and treatment of fines generated from violations of local ordinances authorized by § 46.2-1313. Specifically, you ask whether such funds (a) constitute "fines collected for offenses committed against the Commonwealth" within the meaning of Article VIII, Section 8 of the Virginia Constitution; (b) constitute revenue of the locality; and (c) may be appropriated to the Literary Fund by the General Assembly per Article VIII, Section 8 as "such other sums as the General Assembly may appropriate." You also ask whether fines arising from violations of town ordinances should be considered part of total revenue from fines of the county in which the town is located.

Response

It is my opinion (a) that fines generated from local ordinances pursuant to § 46.2-1313 do not constitute "fines collected for offenses committed against the Commonwealth" within the meaning of Article VIII, Section 8 of the Virginia Constitution; (b) that such sums constitute revenue of the locality; and (c) that the General Assembly may enact legislation to appropriate such funds to the Literary Fund as "such other sums as the General Assembly may appropriate." It is my further opinion that fines and fees arising from violations of town ordinances should not be considered part of total revenue from fines of the county in which the town is located.

Background

You state that § 3-6.05(C) of the 2012 Special Sessions Acts of the General Assembly, Chapter 3 requires your Office to perform a special review of fines and fees collected by the General District courts. You also relate that Part A of § 3-6.05 mandates the Auditor of Public Accounts to determine those localities in which fine and fee collections exceeded 50 percent of the total collections, and then requires the State Comptroller to recover half of the amount in excess of 50 percent of those total collections.

You describe concerns that enforcement of local ordinances by local law enforcement officers is diverting revenue that would otherwise inure to the Literary Fund under corresponding state law. You relate further that in one case, combining of town revenues from fines and fees with similar revenues of the county in which the town is located caused the county to exceed the threshold set forth in § 3-6.05(A), where neither governmental entity separately would have been subject to withholding.

Applicable Law and Discussion

Article VIII, Section 8 of the Virginia Constitution requires that all "fines for offenses against the Commonwealth" are to be paid to the Literary Fund, along with, inter alia, "such other sums as the General Assembly may appropriate."

Section 46.2-1300 of the Code of Virginia empowers local governing bodies to "adopt ordinances not in conflict with [state law] to regulate the operation of vehicles on the highways" within their jurisdiction. Section 46.2-1308 directs that "all fines imposed for violations of such ordinances shall be paid into the county, city or town treasury." Pursuant to § 46.2-1313, such ordinances may incorporate by reference provisions of Title 46.2, of Article 9 of Chapter 11 of Title 16.1 (§ 16.1-278 et seq.), and of Article 2 of Chapter 7 of Title 18.2 (§ 18.2-266 et seq.).

In a previous opinion, I concluded that certain funds collected by localities pursuant to the authority granted in § 46.2-1308 do not constitute "fines for offenses against the Commonwealth."[1] Whereas that Opinion addressed the nature of a particular local law, you inquire about an unspecified number of ordinances based upon multiple Titles of the Code; however, the same rationale applies. Because the fines are being imposed for violation of local ordinances and not for violation of a law of the Commonwealth, they are outside the scope of Article VIII, Section 8.[2] I find no constitutional or other authority to prohibit the General Assembly from statutorily defining which criminal offenses are deemed to be committed against the Commonwealth, and those that rightfully may be deemed to be committed against a political subdivision of the Commonwealth.[3]

Accordingly, and in response to your next inquiry, I conclude that the money collected from violations of these ordinances, because they stem from a violation of local law rather than an "offense against the Commonwealth," constitute revenue of the locality.

The question in part (c) of your inquiry concerns the ability of the General Assembly to appropriate to the Literary Fund revenue generated from fines for violation of ordinances enacted pursuant to § 46.2-1313. As noted above, the General Assembly presently has directed that fines for violation of local traffic ordinances be paid to the respective locality; however, there is no legal prohibition on the General Assembly changing that practice and providing that the funds be deposited into the Literary Fund. Accordingly, it is my opinion that the General Assembly may enact legislation directing that penalties and fines associated with the violation of local ordinances be paid to the Literary Fund per Article VIII, Section 8 as "such other sums as the General Assembly may appropriate."[4]

Your final inquiry, concerning the possible combining of town and county revenue, raises traditional issues of statutory construction. "When construing a statute, our primary objective is 'to ascertain and give effect to legislative intent,' as expressed by the language used in the statute."[5] Here, we examine the pertinent text of § 46.2-1308 to determine whether fines and fees arising from violations of town ordinances should be considered part of total revenue from the county in which the town is located. "Under basic rules of statutory construction, we determine the General Assembly's intent from the words contained in the statute[,]"[6] and "[w]e 'assume that the legislature chose, with care, the words it used when it enacted the relevant statute.'"[7]

In discussing disposition of the revenue in question, § 46.2-1308 expressly provides that "all fines imposed for violations of such ordinances shall be paid into the county, city or town treasury." The legislature explicitly included towns separately. Because "statutes must be construed to give meaning to all of the words enacted by the General Assembly, and thus, interpretations that render statutory language superfluous are to be avoided[,]"[8] the specific mention of towns evinces its intent that towns retain funds resulting from violations of town ordinances. Had the General Assembly intended anything otherwise, it could have employed language evincing the same. For example, § 46.2-1308 could have required that fines be shared or credited between towns and the counties in which those towns are located.[9] Because, however, the General Assembly did not modify its grant of independence to the various localities in this instance, I conclude that fines and fees arising from violations of town ordinances should not be considered part of total revenue from the county in which the town is located.

Conclusion

Accordingly, it is my opinion that (a) fines generated from local ordinances pursuant to § 46.2-1313 do not constitute "fines collected for offenses committed against the Commonwealth" within the meaning of Article VIII, Section 8 of the Virginia Constitution; (b) such sums constitute revenue of the locality; and (c) the General Assembly may enact legislation to appropriate such funds to the Literary Fund as "such other sums as the General Assembly may appropriate." It is my further opinion that fines and fees arising from violations of town ordinances should not be considered part of total revenue from fines of the county in which the town is located.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General

[1] 2011 Op. Va. Att'y Gen. 150, accord 1977-78 Op. Att'y Gen. 162, 165. The opinion specifically addressed monetary penalties imposed for violating a traffic light ordinance that did not constitute criminal fines under the Virginia Supreme Court's decision in Southern Express Co. v. Commonwealth ex rel. Walker, 92 Va. 59, 62, 22 S.E. 809 (1895), aff'd 168 U.S. 705 (1897).

[2] Id. It is clear from the opinion and the language of § 46.2-1308 that violations of local traffic ordinances are not "offenses against the Commonwealth." Such an interpretation is supported by the fact that fines for violations of local traffic ordinances were authorized to be paid to the locality as opposed to the Literary Fund prior to the adoption of the current Constitution in 1971. Former § 46.1-182, Chapter 728 of the Acts of Assembly of 1958, directed that "fines imposed for a violation of such ordinances shall be paid into the county, city or town treasury ...." Because this was the law when the Constitution of 1971 was adopted, the drafters of, and those ratifying, Article VIII, § 8 are deemed to have acquiesced in an interpretation that allows for same. See Roanoke v. James W. Michael's Bakery Corp., 180 Va. 132, 143, 21 S.E.2d 788, 793 (1942) ("Framers of the Constitution are presumed to have been aware of prior decisions of their own courts and of legislative acts construing words or phrases, and to have used such words or phrases in the light of such construction."). Indeed, the provisions of § 46.2-1313 (former § 46.1-188) have enabled localities to enact ordinances incorporating misdemeanor traffic offenses since at least 1968. See 1968 Va. Acts c. 243. For example, the offense of reckless driving has been contained in the same Title of the Code of Virginia as § 46.2-1313, and has been a misdemeanor criminal offense since the General Assembly's codification of the Code in 1950. See 1950 Va. Acts ch. 385.

[3] See generally Va. Const. art. VIII, § 8; and see Peacock v. Commonwealth, 200 Va. 464, 468-69, 106 S.E.2d 659, 662-63 (1959) (wherein the Court implicitly recognized the General Assembly's broad authority respecting criminal offenses, as it discussed the constitutionally-required specificity of language to be used by the General Assembly in any "act creating a statutory offense.").

[4] The practical effect this would have on localities deciding to have and enforce such local traffic ordinances is beyond the scope of this opinion.

[5] Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425, 722 S.E.2d 626, 629 (2012) (quoting Commonwealth v. Amerson, 281 Va. 414, 418, 706 S.E.2d 879, 882 (2011)) (further citation and internal quotation marks omitted).

[6] Williams v. Commonwealth, 265 Va. 268, 271, 576 S.E.2d 468, 470 (2003) (citing Vaughn, Inc. v. Beck, 262 Va. 673, 677, 554 S.E.2d 88, 90 (2001); Thomas v. Commonwealth, 256 Va. 38, 41, 501 S.E.2d 391, 393 (1998)).

[7] Alger v. Commonwealth, 267 Va. 255, 261, 590 S.E.2d 563, 556 (2004) (quoting Barr v. Town & Country Props., Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990)).

[8] 2012 Op. Va. Att'y Gen. No. 11-127 (citing Cook v. Commonwealth, 268 Va. 111, 114, 597 S.E.2d 84, 86 (2004)).

[9] See, e.g., Va. Code Ann. § 46.2-752(A) (2010) (setting forth a comprehensive plan for crediting vehicle taxes and license fees for residents of counties and the towns within those counties, with such crediting plan modifying a legislative grant in § 46.2-752(B), similar to that in § 46.2-1308, providing that involved revenue "shall be applied to general county, city or town purposes.").