# Opposition — Ward v. Maryland

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1978
- **Citation:** 434 U.S. 1011

## Text

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,
v.
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
TTT
JURISDICTION OF THE COURT .........:ccccscceeseeeseeseees
i sa ecmneneunsnnsoonsees
SIE RII scnccsnadnnscenecescensccseorsesesecesoseceoess
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

3

11

11

li

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

10
10

i)

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

2

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).

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
I.

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.

4

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

5

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.

6

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

7

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

8

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

9

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

10

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

1]

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,
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2589%3A2. Public record. Not legal advice.