Opposition — Ward v. Maryland

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7“ Supreme Court, U. &

FILED ‘}

DEC 7 1977

— : . L RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-458

ROBERT DAVID WARD,

Petitioner,

STATE OF MARYLAND,

Respondent.

On WRIT OF CERTIORARI TO THE

Court oF APPEALS OF THE STATE OF MARYLAND

BRIEF OF RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

FRANCIS B. BuRCH,

Attorney General

of Maryland,

CLARENCE W. SHARP,

Assistant Attorney General

Chief, Criminal Division,

ALEXANDER L. CUMMINGS,

Assistant Attorney General,

One South Calvert Street,

Baltimore, Maryland 21202,

383-3737,

Attorneys for Respondent.

The Daily Record Co., Baltimore, Md. 21202 Ss oe

TABLE OF CONTENTS

PRELIMINARY COMMENTS .........ccssscessssssesseessesseseesees

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JURISDICTION OF THE COURT .........:ccccscceeseeeseeseees

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STATEMENT OF THE CASE .........ccccsssessssssseeesseesensees

ARGUMENT:

The Federal Aviation Act of 1958 and

the Regulations Promulgated there-

under which provide civil penalties for

the reckless operation of an aircraft do

not preempt the Maryland Aviation

Statute which provides criminal penal-

ties for such CONGUCE ............cccccccccccccsceees

SAT

TABLE OF CITATIONS

Cases

Allegany Airlines v. Village of Cedarhurst, 238

F.2d 812 (2nd Cir. 1966) ............cccccrsercessesees

American Airlines, Inc. v. Town of Hempstead,

398 F.2d 369 (2nd Cir. 1968) ...........:cccceeeeeees

Bartukus v. Illinois, 359 U.S. 676 (1959) ............

Braniff Airways v. Nebraska State Board of

Equalization and Assessments, et al., 347

U.S. 590, 74 S. Ct. 757 (1954) ............0............

PAGE

California v. Zook, 69 S. Ct. 841 (1949) ..............

City of Newark New Jersey v. Eastern Airlines

159 F. Supp. 750 (D.C. N.J. 1958) .................

City of Burbank v. Lockheed Air Terminal Inc.,

411 U.S. 624, 93 S. Ct. 1854 (1973) ...............

City of Philadelphia v. New Jersey, ___. US.

ences OE te Ge ee ED chains

DeCanas v. Bica, 424 U.S. 351 96 S. Ct. 933

ARERR ee vey or ener ee me eT

DelVecchio v. Bowers, 296 U.S. 280 (1935) ........

Jones v. Rath Packing Co., __._. U.S. ___., 97 S..

RRR SIRE PEER Cre Snann Soon IO

Kelly v. State of Washington, 302 U.S. 1, 58S. Ct.

BF Ce seticesesisisnscsiinidtatentenitnissuminiibisisiaiiaiabntmatlasttinnatadi

Knapp v. Schweitzer, 357 U.S. 371, 78 S. Ct. 1302

TIIIEY sdciiianieshceiiablendieine ining titaai tein iitaa ti

New York State Department of Social Services v.

Dublino, 413 U.S. 405, 93 S. Ct. 2507 (1973)

People v. Altman, 304 N.Y. 2d 534 (1969) ..........

People v. Newhauser, 92 N.Y. 2d 291 (1949) .....

Stathes v. State, 29 Md. App. 474 (1975), cert.

den. _.. ‘Md. — (Petition Docket 2,

September Term 1976), May 5, 1976 Appeal

Dismissed for want of substantial Federal

Question 97 S. Ct. 36 (1976) .....................00000

Ward v. State, 280 Md. 485, 374 A.2d 1118 (1974)

Statutes

Constitution of the United States:

Article 1, Section 8, Clause 3 .....................00.

BS Be, TE 0 either

pg eT ee

sg PAGE

United States Code:

28 U.S.C., Section 1257(3) ..............cccccscsseseees 2

4B UBC... Becta USDA .ncccccrcrosecsccesecccscccescscsese 3

49 U.S.C., Section 1508A. ................cccccscsreseeees 5,8

Maryland Annotated Code:

Article 1A

ee TD seciccccersnccsesescctesnssnnensnannntonnen 1,3,4

ee TED ciccniinssnnitissutdsesbeiiinammmannite 1,3,4

Miscellaneous

House Report 958, 1961 U.S. Congressional and

Adin. News 2563-2566 .......ccsscccsssssssssccsscsssscees 5

In THE

Supreme Court of the United States

OcTOBER TERM, 1977

No. 77-458

ROBERT DAVID WARD,

Petitioner,

Vv.

STATE OF MARYLAND,

Respondent.

On Writ oF CERTIORARI TO THE

Court oF APPEALS OF THE STATE OF MARYLAND

BRIEF OF RESPONDENT IN OPPOSITION TO

PETITION FOh WRIT OF CERTIORARI

PRELIMINARY COMMENTS

This Brief in Opposition to Petition for Writ of

Certiorari is filed pursuant to the request of this

Honorable Court.

OPINIONS BELOW

On November 21, 1975, the Petitioner Robert David

Ward was arrested pursuant to an arrest warrant and

charged in the District Court of Maryland with

operating an aircraft in a reckless and unsafe manner,

under Article 1A, Sections 10-1002, 10-1003 of the

Annotated Code of Maryland. On July 20, 1976, the

Petitioner appeared for trial before the Honorable

William Bowie and the case was submitted to him on a

stipulation of facts. On that same date the court found

the Petitioner guilty of operating an aircraft in a

reckless and unsafe manner and was sentenced to the

jurisdiction of the County Detention Center for a period

of ninety days and was required to pay a fine of five

hundred dollars. However, the sentence of incarceration

was suspended upon the special condition that he not

operate an aircraft within the State of Maryland for a

period of one year from September 17, 1976. Thereafter

the Court of Appeals of Maryland granted the Writ of

Certiorari filed by the Petitioner on October 4, 1976

requiring the parties to file briefs and present oral

argument. On June 24, 1977 the Court of Appeals of

Maryland filed a reported opinion in which it affirmed

the judgment and sentence below as well as the order of

the lower court denying the motion to dismiss the

indictment. Ward v. State, 280 Md. 485, 374 A.2d 1118

(1977). From that decision of the Court of Appeals of

Maryland the Petitioner has applied to this Honorable

Court for a Writ of Certiorari to review the decision of

the Court of Appeals of Maryland.

JURISDICTION OF THE COURT

Petitioner has invoked the jurisdiction of this Honora-

ble Court pursuant to the provisions of Article 2,

Section 2 of the Constitution of the United States.

However, since these provisions are concerned with the

powers of the President of the United States, the

Respondent submits that Petitioner has failed to assert

a proper basis upon which this Honorable Court could

assume jurisdiction in this case. See Supreme Court

Rule 23b (iii).

1 The jurisdiction of this Court may arguably be invoked

under 28 U.S.C. Section 1257(3).

QUESTION PRESENTED

Whether the Federal Aviation Act of 1958 and the

regulations promulgated thereunder which provide civil

penalties for the reckless operation of an aircraft

preempts the Maryland Aviation Statute which pro-

vides criminal penalties for such conduct.

STATUTES INVOLVED

Petitioner contends that Article 1, Section 8, Clause 3

and Article 6, Clause 2 of the Constitution of the United

States and the Federal Aviation Act of 1958, Title 49,

U.S. Code Annotated, Section 1301, et. seq., and the

Maryland Aviation Statute, Article 1A, Section 10-1002

and 10-1003 are involved.

STATEMENT OF THE CASE

The Respondent would incorporate by reference

herein those facts as set forth under “Opinions Below”

supra. In addition, Respondent adopts and incorporates

by reference herein the facts as set forth by the Court of

Appeals of Maryland in its Opinion (See pp. 6a-8a of the

Appendix to the Petition in this case.)

ARGUMENT

THE FEDERAL AVIATION ACT OF 1958 AND THE REGULA-

TIONS PROMULGATED THEREUNDER WHICH PROVIDE CIVIL

PENALTIES FOR THE RECKLESS OPERATION OF AN AIR-

CRAFT DO NOT PREEMPT THE MARYLAND AVIATION STA-

TUTE WHICH PROVIDES CRIMINAL PENALTIES FOR SUCH

CONDUCT.

A. Tue IssuE PRESENTED WAS GIVEN FULL

CONSIDERATION By THE CourT Or APPEALS

Or MARYLAND AND Was CorRECTLY DECIDED.

In the case at bar th2 facts established that the

Petitioner operated his aircraft in a reckless and unsafe

manner in the air space over the State of Maryland.

The Petitioner was charged and convicted under the

Maryland statute which proscribes such conduct and

provides criminal penalties therefor. Article 1A, Section

10-1002 and 10-1003 of the Maryland Code. Among the

penalties imposed upon Petitioner was that he not

operate an aircraft in or over Maryland for a period of

one year. Concurrent to the proceedings in the State

Court, the Federal Aviation Administration, pursuant

to the regulations of the Federal Aviation Act, revoked

the Petitioner’s pilot license but subsequently reissued it

to him.

The crux of the Petitioner’s argument is that

Maryland has no right to prosecute Petitioner crimi-

nally for reckless aircraft operation because civil

penalties are provided for the same conduct under the

Federal Aviation Act. The legal basis for this conten-

tion is that the Federal statute preempts the State law.

It was upon these narrow grounds and the specific

Federal and State statutory provisions that the Mary-

land court decided this case under the preemption

doctrine. In an effort to have this Court accept review

the Petitioner would have this Honorable Court believe

that “If the present decision is left standing it will be

open season for every State to share in the control of

aircraft, destroying completely the uniformity of control

which now exists and which is imperative due to the

nature of flight.” (Pet. 5). Respondent submits that such

an assertion is completely unfounded and such an

interpretation of the opinion below was neither ex-

pressed nor implied by the Maryland Court.

In any event it was within this context that the

preemption doctrine was analyzed and applied in the

instant case. The Respondent submits that the Court

comprehensively and accurately delineated the princi-

ples of express and implied preemption under recent

and not so recent decisions of the Court; Jones v. Rath

Packing Co., __. U.S. ___.,, 97 S. Ct. 1305 (1977); City of

Philadelphia v. New Jersey, ___ U.S. ___.,, 97 S.. Ct. 987

(1977); Knapp v. Schweitzer, 357 U.S. 371, 78 S. Ct. 1302

(1958); Kelly v. State of Washington, 302 U.S. 1, 58 S.

Ct. 87 (1937); DeCanas v. Bica, 424 U.S. 351, 96 S. Ct.

933 (1976) and others.

The Petitioner contends now, as he did below, that

Congress expressly preempted the field of air commerce

when it said “the United States of America is declared

to possess and exercise complete sovereignty in the air

space of the United States” 49 U.S.C. Annotated,

Section 1508A. However, an identical contention was

rejected by this Honorable Court in Braniff Airways v.

Nebraska State Board of Equalization and Assess-

ments, et al., 347 U.S. 590, 74 S. Ct. 757 (1954)? which

was concerned with the sovereignty clause of both the

Air Commerce Act of 1926 and the Civil Aeronautics

Act of 1938 (which contained a sovereignty clause

identical to that of Section 1508A.

Moreover, congressional! legislative history lacks an

expression of preemptive intent but contains a clear

statement of a contrary intent. House Report 958

discussing the Federal Aviation Act makes it quite clear

that the Act does not preempt state criminal jurisdic-

tion over the air space. 1961 U.S. Congressional and

Administrative News 2563-2566. (See Petition Appendix

pp. 2la-22a).

In addition, there is no implied preemption of the

Federal statute simply because of the comprehensive

scheme of the Federal legislation. The subject of air

navigation by its very nature requires intricate and

complex responses from the Congress but without

necessarily intending its enactment as the exclusive

means of meeting the problem. Given the complexity of

the matter addressed by Congress in the Federal

Aviation Act of 1958, a detailed statutory scheme was

2 The Court of Appeals did not cite or discuss Braniff,

supra.

both likely and appropriate completely apart from any

questions of preemptive intent. Therefore, Respondent

submits that Congress did not impliedly intend to

preempt the field of aviation by the mere enactment of

this detailed statute. Cf. Decanas v. Bica, supra and

New York State Department of Social Services uv.

Dublino, 413 U.S. 405, 93 S. Ct. 2507 (1973).

Having thus established the general power of the

State to regulate air commerce, the remaining issue is

whether the State statute conflicts with the Federal Act.

It is undisputed that the conduct proscribed under both

statutes (reckless operation of an aircraft) is identical.

Petitioner claims however, that because the penalty

provision of the Maryland Statute ordered him not to

fly an airplane in Maryland for a year at a time when

he maintained a federal pilot’s license in good standing,

the two statutes conflict. In response the Respondent

would initially emphasize that there is no inherent

conflict in the sanctions imposed under the Federal

Regulations and the State statute. It was only by dint of

the fact that the FAA, following revocation, reinstated

the Petitioner’s Federal Pilot’s license that he was able

to argue this conflict. Had his license not been

reinstated his conflict argument in the Court below and

now on appeal would have fallen of its own weight.

Additionally, the Court of Appeals recognized: (Peti-

tion Appendix pp. 23a-24a)

“it would be incongruous indeed, in light of the

Federal purposes and objectives, if Maryland were

to be constitutionally precluded from the criminal

prosecution of a person for such conduct because a

federal regulation authorized civil penalties.

* * * * * *

In any event, we do not see how prohibiting, for a

limited time, the operation of an aircraft within

Maryland by a person who has been found guilty

in a court of law of operating an aircraft in a

careless or reckless manner so as to endanger the

life or property of another could be said to stand as

an obstacle to the Congressional purposes and

objectives.”

Finally, this Honorable Court has recognized “that

the same act might, as to its character and tendencies

and the consequences it involved, constitute an offence

against both the state and Federal Government and

might draw to its commission the penalties by either as

appropriate to its character in reference to each.”

California v. Zook, 69 S. Ct. 841 (1949); Stathes v. State,

29 Md. App. 474 (1975), cert. den. __. Md.. _____ (Petition

Docket 2, September Term, 1976), May 5, 1976, appeal

dismissed for want of a substantial Federal question 97

S. Ct. 36 (1976).

B. THE QUESTION LACKs SUFFICIENT IMPORTANCE To

WARRANT Review By Tuis Court.

In the Court below the parties were unable to discover

precedents controlling on the facts and issues presented

in this case. The Court of Appeals made specific

mention of this fact when it said:

“We have not been referred to a decision of another

jurisdiction state or federal, which addresses the

matter of preemption of a statute prohibiting such

operation of an aircraft. There being no decision

precisely on point to bind or persuade us, we shall

follow the path laid down by the decisions of the

Supreme Court of the United States concerning the

doctrine of preemption to determine whether the

Maryland statute is enforceable.”

In addition, while there are many states that have

enacted reckless operation of aircraft statutes, the

Petitioner has not cited any statute containing penalty

provisions identical or similar to the Maryland statute

which, according to him, created in Maryland the

conflict between its statute and the Federal Aviation

Act. In view of these facts, the urgency, immediacy and

importance of the issue evaporates under closer scrut-

iny. The Respondent further submits that this Court

should not exercise its discretion to review this case

since the decision of the Maryland Court is based upon

the operation of a Maryland Statute within the confines

of the State of Maryland. See Del Vecchio v. Bowers, 296

U.S. 280 (1935).

The Respondent also notes that while Petitioner does

not allege that there are conflicting decisions decided

by the lower Federal or State courts, he does cite four

cases in support of his position. However, those cases

are simply inapposite to the facts and issues presented

in this case. City of Burbank v. Lockheed Air Terminal,

Inc., 411 U.S. 624, 93 S. Ct. 1854 (1973) found only that

the Noise Control Act Amendment to Federa] Aviation

Act preempted local control and regulation of airplane

noise. The present case is not concerned with noise

control but rather reckless flying.

In American Airlines, Inc. v. Town of Hempstead, 398

F.2d 369 (2nd Cir. 1968), cited by the Appellant, the

Court again considered a noise ordinance in light of the

Federal Aviation Statute of 1958. American Airlines

argued that (1) the ordinance was an undue burden on

interstate commerce, (2) was preempted by the Federal

Statute and (3) the ordinance was in direct conflict with

the Federal regulation. The Court declined to consider

the preemption and burden contentions but rather

based its decision on a finding of a conflict between the

ordinance and federal regulations which it held to be in

direct conflict with one another not because the

regulations and ordinance imposed different standards

for noise, but because the present state of development

of noise suppression techniques would mean that

compliance with the noise ordinance would require

alterations in the flight patterns and procedures

established by Federal regulations. This was also the

case in Burbank, supra. However, in the present case

the situation is again entirely different in that there is

no evidence of facial impossibility of compliance with

both the State and Federal requirements.

Likewise, Allegany Airlines v. Village of Cedarhurst,

238 F.2d 812 (2nd Cir. 1956) cited by Appellant held

invalid an ordinance prohibiting flights over the village

at altitudes below 1,000 feet. Despite the broad preemp-

tion language contained therein the Court was there

dealing with an ordinance which “plainly conflicts with

the Federal statutes and regulations.” (id. at p. 814).

Moreover, the action and the words of the trial court did

“not affect the rights of property owners”; their claims

based on nuisance and trespass had been withdrawn.

Finally, City of Newark, New Jersey v. Eastern

Airlines, 159 F. Supp. 750 (D.C. N.J. 1958), cited by

Appellant did not hold that the operation of state law,

in that case the law of New Jersey, was precluded. The

first count of that action under a nuisance theory

sought an injunction against operations over certain

areas at altitudes below 1200 feet. The District Court

viewed this as an amendment to the Civil Air

Regulations and denied relief applying the doctrine of

primary jurisdiction. The second count sought an

injunction and damages on a trespass theory. The court

stated (p. 760) that “the principals do not foreclose the

right of landowners to maintain an action for trespass

to realty in a proper case.”’ However, relief was denied

because plaintiffs had failed to present sufficient

evidence to support their claims. It is to be noted that it

had been stipulated that all operations were in accord

with Federal law.

C. THe Decision Or THe Court Or APPEALS OF

MARYLAND WAS FUNDAMENTALLY Farr AND

= AccorpD WITH SouNnD REAsons OF PUBLIC

OLICY.

The primary purpose of state control over air traffic is

to secure the public safety and general health of the

people in which the state acts in conjunction with the

Federal government pursuant to the state aviation

statutes in furtherance of these goals. The state law is

in essence nothing more nor less than an enforcement

measure in aid of Federal legislation to regulate aircraft

within the boundaries of the state. It cannot be said

that a state is precluded from enacting legislation

which has the effect of enforcing Federal regulations

which apply peculiarly within state limits. The primary

purpose of any legislation to control aircraft is to ensure

the public safety and general health of all the people.

The state law is directed to the same objective.

Enforcement machinery of the Federal government is

often inadequate to police every airport in every State of

the union. Therefore, proper enforcement by state

authorities is necessary. Cf. People v. Newhauser, 92

N.Y.2d 291 (1949); People v. Altman, 304 N.Y.2d 534

(1969).

The Petitioner fails to take into account these public

policy considerations and urges that the Federal

government should be the only agency to enforce

Federal laws regulating the operation of aircraft.

However, such a position could lead to absurd results as

illustrated by a recent aircraft accident which occurred

at Memorial Stadium, Baltimore, Maryland within the

last year where a small airplane crashed into the upper

stands of the stadium. Fortunately, tragedy was

averted and no serious injuries occurred because

spectators at a football game that afternoon had

moments before vacated the stadium. To suggest that

only civil penalties could be imposed under Federal

regulations for that conduct thus precluding criminal

penalties under State law is indeed ludicrous.

While the question was dealt with in a different

context, this Court has long held that every citizen in

the United States is also a citizen of a state or territory.

He may be said to owe allegiance to two sovereigns and

may be liable to punishment for infractions of the laws

of either. The same act may be an offense or transgres-

sion against the laws of both and either or both may

punish such offender. Bartkus v. Illinois, 359 U.S. 676

(1959). Analogously, although there exists a Federal

criminal bank robbery statute, that fact does not mean

that a State cannot prosecute an individual for bank

robberies under its own laws. Likewise, Respondent

submits that, simply because there is a Federal law

proscribing the reckless operation of an aircraft, that

fact does not mean that the State cannot prohibit and

punish the same conduct under its law.

CONCLUSION

For the foregoing reasons it is respectfully submitted

that the Petition for Writ of Certiorari to the Court of

Appeals of Maryland should be denied.

Respectfully submitted,

FRANcIs B. Burcu,