Amicus Curiae Brief — Columbus v. Ours Garage & Wrecker Service, Inc.

(1) FILED

No. 01-419 Fee 19 we

LERK

IN THE etn: |

Supreme Court of the United States

CITY OF COLUMBUS, et al.,

Petitioners,

v.

OURS GARAGE AND WRECKER SERVICE, INC., et ai.,

Respondents.

On Writ oF CERTIORARI TO THE

UnNitep States Court OF APPEALS FOR THE SIxTH CIRCUIT

BRIEF OF AMICUS CURIAE THE CITY OF

DALLAS IN SUPPORT OF PETITIONERS

MADELEINE B. JOHNSON

City Attorney

CHRISTOPHER D. Bowers*

Assistant City Attorney

City of Dallas

7BN Dallas City Hall

1500 Marilla Street

Dallas, Texas 75201-6318

(214) 670-3519

* Counsel of Record Counsel for Amicus

——_

172422 g

COUNSEL PRESS a! 1a

(800) 274-3321 + (800) 359-6859

Dee “ TABLE OF CONTENTS

AOE gen a Ae he Table of Cited Authorities .......

Interest of Amicus ...

Pil aan a . wail, ‘ i ME oe sae

feeds) Jpn Pita aa The Sixth Circuit’s Decision Clearly

ea ; BES oe ve a _ Misapplies Medtronic. .. .

A. The Framework of Pre-emption

EE bbavdhasensvecas

B. The Sixth Circuit Misapplied Both

Medtronic Presumptions. ...........

al | 1. Congress’ Purpose When Enacting

the Safety Exemption Was to Leave

State Safety Authority Unaffected.

Congress’ Intent When Enacting the

Nonconsensual Rate Exemption Is

Not Relevant When Determining Its

Intent on the Safety Exemption. ..

Regulation of Tow Trucks Falls

Within the Historic Police Powers

SE Sot deedn¥66e6n'eee

il

Contents

Page

II. The Sixth Circuit’s Decision Deprives Cities

of Their Police Power Contrary to the Clear

Mandate of BGerdler. ..cccccescsncocesen 17

Ill. A Reversal of Ours Garage Does Not

Conflict with BFP and Russello. ......... 22

eo PP! 25

ill

TABLE OF CITED AUTHORITIES

Cases:

A. J. s Wrecker Serv., Inc. v. City of Dallas, Nos. Civ.

A. 3:97-CV-1311D, Civ. A. 3:97-CV-2398D, 1998

WL 185521 (N.D. Tex. April 15, 1998), abrogated

in part by Stucky v. City of San Antonio, 260 F.3d

424 (Sth Cir. 2001), petition for cert. filed, 70

U.S.L.W. 3465 (U.S. Dec. 13, 2001) (No. 01-

DUAR PESEREESGSGEsCcb0eccevccecccecs

Ace Auto Body & Towing, Ltd. v. City of New York,

171 F.3d 765 (2d Cir. 1999), cert. denied, 528 U.S.

eee ee ee cess beececs es cc

Arnold v. Cleveland, 616 N.E.2d 163 (Ohio 1993) ...

AT&T Communications of the Southwest, Inc. v. City

of Austin, 975 F. Supp. 928 (W.D. Tex. 1997) ..

AT&T Communications of the Southwest, Inc. v. City

of Dallas, 8 F. Supp. 2d 582 (N.D. Tex. 1998)

Barnes v. Glen — Inc., 501 U.S. 560 (1991) ...

BFP vy. Resolution Trust Corp., 511 U.S. 531

Nee cwecccees

Cablevision of Boston, Inc. v. Public Improvement

Comm'n of Boston, 184 F.3d 88 (ist Cir. 1999)

Page

iv

Cited Authorities

Page

California ex rel. Deukmejian v. County of

Mendocino, 683 P.2d 1150 (Cal. 1984) ..... 20, 22, 23

California ex rel. Renne v. Servantes, 103 Cal. Rptr.

2d 870 (Cal. Ct. App. 2001), review denied, (Cal.

May 16, 2001), petition for cert. filed, 70 U.S.L.W.

Dome Geren FD, BG, BOGED oc cccccocccccccess 16

Cipollone v. Liggett Group, Inc., 505 U.S. 504

See 0 606eneccecctddaceaweséauaceudaaue 6, 7

Citizens for a Safer Community v. City of Rochester,

627 N.Y.S.2d 193 (N.Y. Sup. Ct. 1994) ........ 20, 21

City of Chattanooga v. Fanberg, 265 S.W.2d 15

Ges GEE bKkeduaecceddnukouadnsnced 12, 13, 14

City of Cincinnati v. Reed, 500 N.E.2d 333

Gee GE OU GEE <cvncecnansdnndenbacns 14

City of Dallas v. Harris, 157 S.W.2d 710 (Tex. Civ.

App. — Dallas 1941, writ ref’'d .............. 1,2, 12

City of New York v. United States Dept of Transp.,

715 F.2d 732 (2d Cir. 1983), appeal dismissed and

cert. denied, 465 U.S. 1055 (1984) ........... 21

Cole v. City of Dallas, No. 01-10194 (Sth Cir. Nov.

9, 2001), petition for cert. filed, _ U.S.L.W.

EE Rr I

Coparr, Ltd. v. City of Boulder, 942 F.2d 724

Gey GUE 6-0 cca cdddsdeeedabetnanee 20

v

Cited Authorities

Page

Coyle v. Oklahoma, 221 U.S. 559 (1911) ........ 12

Dallas Merchants & Concessionaires Ass'n v. City

of Dallas, 852 S.W.2d 489 (Tex. 1993) ........ 19

Dilley v. City of Houston, 222 S.W.2d 992

Ul Bee 19

English v. General Elec. Co., 496 U.S. 72 (1990) ... 7

Environmental Encapsulating Corp. v. City of New

York, 855 F.2d 48 (2d Cir. 1988) ............. 20

Fireman's Fund Ins. Co. v. Lodi, 271 F.3d 911

(Sth Cir. 2001) ..... ccc eeeecccccecceecceees 20

Florida Lime & Avocado Growers, Inc. v. Paul,

373 UB. 1392 (IDES) ..cccccccccccccccccsees 18

FMC Corp. v. Holliday, 498 U.S. 52 (1990) ...... 6

Ford v. United States, 273 U.S. 593 (1927) ....... 23, 24

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) ... 6

Hempstead T-W. Corp. v. Town of Hempstead,

177 N.Y.S.2d 445 (N.Y. Sup. Ct. 1958), aff'd,

179 N.Y.S.2d 848 (N.Y. App. Div. 1958) ...... 12

Herman & MacLean v. Huddleston, 459 U.S. 375

(IDES) . cc ccccccccccccccccccsecesvccccsens 23

vi

Cited Authorities

Interstate Towing Ass'n, Inc. v. City of Cincinnati,

Be SES GUD: kcccccsceécdéevess

Jersey Cent. Power & Light Co. v. Township of Lacey,

772 F.2d 1103 (3d Cir. 1985), cert. denied,

ee ee ED sé peceésudadowacsenseds

Johnson v. Southern Pac. Co., 196 U.S. 1 (1904) ..

Lemon v. Kurtzman, 411 U.S. 192 (1973) ........

Librizzi v. Plunkett, 16 A.2d 280 (N.J. 1940) .....

L-M-S Inc. v. Blackwell, 233 S.W.2d 286 (Tex.

SEED FnSOdececedecscusedevennsedécoccess

Metcalf & Eddy v. Mitchell, 269 U.S. 514 (1926) ..

Morales v. Trans World Airlines, Inc., 504 U.S. 374

DD csndleeebdecksendoldcetendas ds denne

National Tank Truck Carriers, Inc. v. City of New

York, 677 F.2d 270 (2d Cir. 1982) ............

National Woodwork Mfrs. Ass'n v. NLRB, 386 U.S.

BP EED b nadbdéansucececnasdeccecedseads

New York v. United States, 505 U.S. 1041 (1992) ..

O’Gilvie v. United States, 519 U.S. 79 (1996) ....

Page

12

vil

Cited Authorities

Page

Petrey v. City of Toledo, 246 F.3d 548 (6th Cir.

SD subecdeuses oanedeenas 3, 8, 11, 15, 17, 21, 22

Pike v. Bruce Church, Inc., 397 U.S. 137(1970) .. 14

Porter v. City of Atlanta, 384 S.E.2d 631 (Ga. 1989)

pbebensennsnnddsneneen6ewGesecense<cee 16

R. Mayer of Atlanta, Inc. v. City of Atlanta, 158 F.3d

538 (11th Cir. 1998), cert. denied, 526 U.S. 1038

SD kdasadcucussaccoess 3, 4, 8, 11, 15, 17, 21, 22

Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429

DP idethéabessackecceesesssdosnciverees 13

Regional Rail Reorg. Act Cases, 419 U.S. 102

TUTE TTC CET ETT TET TTT TITe 1]

Retail Clerks Int'l Ass'n, Local 1625 v. Schermerhorn,

EE 6o60 oc akieenannee bens 7

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

DE betes ceebeeneyss oteseresadadcsvedes 7

Russello v. United States, 464 U.S. 16 (1983) ..... 22

Securities & Exch. Comm'n v. C.M. Joiner Leasing

Corp., 320 U.S. 344 (1943) ......... 6.0 eee 23

Stephenson v. Binford, 287 U.S. 251 (1932) ...... 13

Stucky v. City of San Antonio, 260 F.3d 424 (Sth Cir.

2001), petition for cert. filed, 70 U.S.L.W. 3465

(U.S. Dec. 13, 2001) ....... 3, 4, 8, 11, 15, 17, 21, 22

vill

Cited Authorities

Page

Tocher v. City of Santa Ana, 219 F.3d 1040 (9th Cir.

2000), cert. denied, 531 U.S. 1146 (2001) .....

whee DUSShHeeeshendeocesboeobue 3, 4, 8, 11, 15, 22

Town of Ascarate vy. Villalobos, 223 S.W.2d 945

SEA, DED Seccedc cobesesesetocseseeseese 19

United States v. Castro, 837 F.2d 441 (11th Cir.

DD addesadeeceddodnsdesounesadentesees 23, 24

Wisconsin Public Intervenor v. Mortier, 501 U.S. 597

er 4, 5, 6, 13, 17, 18, 19, 20, 21, 22

Constitutional Provisions:

Ohio Const. art. XVIII, § 3 ........ 0. cece ees 13

Dee, GU GE. TE OD cccccccccscccesecsecces 19

U.S. Const. amend. II 2... 6.6... cece eee eens 21

ig. F & 8 © SPPerrrrirrerre ree 6

Federal Statutes:

PU ED ccccncsesce. secccccoccces 18

Fas BEY ccocccvcccccccccesecsccoevece 18

10 U.S.C. §§ 4307-4311, repealed by Defense

Authorization Act of 1996, P.L. 104-106, § 1624,

110 Stat. 186, 522 (1996) ........ cc cece eee 21

ix

Cited Authorities

Page

Be GED cn ceebacnecenddccccisevceeses 20

Ge is HP PEO ED coc ccccccccccceseccess 20

Sr eee OO GO hocks cecevcnssesesecces 20

TP ee BP DODO ESE sei cvedeccccvcssccece 21

te EEE CSUs ch ebcerecsicesensevseess 21

SP ED Co dccccdencreccessastesesscs 21

GP ED Soccvedcccccesetccendsccocss 16

49 U.S.C. § 14501(c) .........000.5. 3, 4, 5, 17, 24, 25

49 U.S.C. § 14501(c) 2A) «01... cece eee eee 17, 21

49 U.S.C. § 14501 (ch 2VC) . 0... ccc cece ee 17

Pub. L. No. 103-305, § 601(c), 108 Stat. 1569

SE 6 oe 66600000050 505 06066506 +éeenesces 8

Pub. L. No. 104-88, 109 Stat. 803 (1995) ........ 10

x

Cited Authorities

Page

State Statutes:

e & Re) ree 15

= & ll! err rer 15

Le. Rov. Stat. Agm. § SBT TIS) onc ccccccccsces 15

N.Y. Veh. & Traf. Law § 1642(a)(15) ........... 15

Ohio Rev. Code Ann. § 715.22 ................. 13

Ohio Rev. Code Ann. § 723.01 ..............05. 13

Ohio Rev. Code Ann. § 4921.02(A)(8) .......... 14

Ohio Rev. Code Ann. § 4923.02(A)(10) ......... 14

Special Act of April 13, 1907, 30th Leg., Ist C.S.,

ch. 71, 1907 Tex. Spec. Laws 568 ............ 19

Tex. Civ. Prac. & Rem. Code Ann. § 101.0215(aX(21).. 19

Tex. Civ. Prac. & Rem. Code Ann. § 101.0215(a\(25) ec Ae

Tex. Code Crim. Proc. Ann. art. 45.019 .......... 18

Tex. Code Crim. Proc. Ann. art. 45.201 .......... 18

Tex. Loc. Gov’t Code Ann. § 51.072 ............ 19

xi

Cited Authorities

Page

Other Authorities:

H.R. Conf. Rep. No. 677, 103rd Cong., 2d Sess.

(1994), reprinted in 1994 U.S.C.C.A.N. 1715 .. 9, 10

H.R. Rep. No. 311, 104th Cong., Ist Sess. (1995),

reprinted in 1995 U.S.C.C.A.N. 793 .......... 10

The Federalist No. 17 (Alexander Hamilton

i Sn < Jedasceceeneens4 Neewans 14

The Federalist No. 46 (James Madison)

Ee ee a ee 14

|

INTEREST OF AMICUS

The City of Dallas (“City”) has a population of almost

1.2 million, which makes it the eighth largest city in the

United States. For more than 60 years, predatory practices

by some members of the vehicle towing industry have

endangered public safety in the City. See City of Dallas v.

Harris, 157 S.W.2d 710 (Tex. Civ. App. — Dallas 1941, writ

ref’d). In Harris, the court described a few of the dangers

connected with the towing industry in Dallas:

It is further shown by testimony that wrecking and

ambulance companies, as well as other ambulance

chasers, have their places of business and

tow-cars equipped with radio sets capable of

receiving the short wave police broadcasts,

thereby intercepting the City police’s radio

communications relative to automobile accidents.

They then cause their solicitors to race to the scene

of the accident in the hope of securing the business

of towing the disabled automobiles for repairs.

They solicit at the scene of the accident, and on

the street and sidewalks, patronage of the persons

involved; and ofttimes, encountering lively

competition in securing possession of the wrecked

automobiles, engage in breacies of the peace

among themselves, thereby, in many instances,

interfering with police investigation in obtaining

information concerning the cause of and blame

for the wreck. It also came to the notice of the

City Council that wrecker operators make a

practice of racing to scenes of accidents, in order

to be there first to solicit the business; and, in

racing, the drivers and operators invariably violate

the traffic ordinances of the City and greatly

2

interfere with and obstruct traffic, both en route

and upon arrival at the scene of the wreck.

Id. at 711.

To protect the public from unsafe towing practices, the

City for more than 60 years has required tow truck companies

and their drivers to meet specific safety standards before

engaging in the business of towing wrecked and disabled

motor vehicles. See A. J.'s Wrecker Serv., Inc. v. City of

Dallas, Nos. Civ. A. 3:97-CV-1311D, Civ. A. 3:97-CV-

2398D, 1998 WL 185521, at *1 (N.D. Tex. April 15, 1998),

abrogated in part by Stucky v. City of San Antonio, 260 F.3d

424 (Sth Cir. 2001), petition for cert. filed, 70 U.S.L.W. 3465

(U.S. Dec. 13, 2001) (No. 01-1028); Harris, 157 S.W.2d at

710-11.

Aside from its general interest in protecting public safety,

the City has a direct interest in the Court’s determination of

the question presented by this case because the City recently

filed its own petition for a writ of certiorari on this issue.

See Cole v. City of Dallas, No. 01-10194 (Sth Cir. Nov. 9,

2001) (per curiam) (unpublished), petition for cert. filed, _

U.S.L.W. __ (U.S. Feb. 7, 2002) (No. 01-___).

In that case, Peter T. Cole (“Cole”) applied to the City

for a wrecker driver’s permit in early 2000. The City denied

his application because he was disqualified under Chapter

48A of the Dallas City Code. Chapter 48A governs

nonconsensual towing of motor vehicles from private

property. It includes licensing, signage, reporting, inspection,

vehicle, equipment, insurance, and rate requirements. Chapter

48A specifically prohibits a person from receiving a wrecker

driver’s permit if he or she has been convicted of violating

the Texas Controlled Substances Act, or a comparable law,

that is punishable as a felony, and fewer than five years have

3

elapsed since the date of release from confinement for the

conviction. Cole was disqualified because he had been

confined for delivery of a controlled substance (cocaine), a

felony, within five years of the date he submitted his

application.

In response, Cole sued the City, asserting that Chapter

48A of the Dallas City Code was pre-empted by 49 U.S.C.

§ 14501(c). The U.S. District Court for the Northern District

of Texas denied Cole’s request for a preliminary injunction

and entered judgment against him. Cole appealed to the Fifth

Circuit. While Cole’s appeal was pending, the Fifth Circuit

issued its opinion in a towing regulation pre-emption case.

See Stucky v. City of San Antonio, 260 F.3d 424 (Sth Cir.

2001), petition for cert. filed, 70 U.S.L.W. 3465 (U.S. Dec.

13, 2001) (No. 01-1028). The Stucky court acknowledged

“the closeness of the issue and the soundness of the arguments

on either side” of “this difficult [pre-emption] issue,”

but concluded that 49 U.S.C. § 14501(c) pre-empted

San Antonio’s tow truck ordinance. /d., 260 F.3d at 440, 446.

Based on Stucky, the Fifth Circuit then vacated the district

court’s judgment in Cole and remanded it to that court.

On February 7, 2002, the City timely filed its petition for a

writ of certiorari.

SUMMARY OF ARGUMENT

Four circuits, including the Sixth, have held that

49 U.S.C. § 14501(c) pre-empts municipal regulation of tow

trucks. See Stucky, 260 F.3d 424; Petrey v. City of Toledo,

246 F.3d 548 (6th Cir. 2001); Tocher v. City of Santa Ana,

219 F.3d 1040 (9th Cir. 2000), cert. denied, 531 U.S. 1146

(2001); R. Mayer of Atlanta, Inc. v. City of Atlanta, 158 F.3d

538 (11th Cir. 1998), cert. denied, 526 U.S. 1038 (1999).

All four circuits found that their interpretations were

consistent with the goal of the Interstate Commerce

4

Commission Termination Act (“ICC Termination Act”),

which was to increase competition among motor carriers by

eliminating burdensome state and local laws. See Stucky, F.3d

at 444-46; Petrey, 246 F.3d at 563; Tocher, 219 F.3d at 1051;

Mayer, 153 F.3d at 546. Furthermore, three of those circuits,

including the Sixth, did not believe that this Court’s decision

in Wisconsin Public Intervenor v. Mortier, 501 U.S. 597

(1991), required it to interpret “State” to include a State’s

political subdivisions in all circumstances because the law

at issue in Mortier was different than Section 14501(c).

See Stucky, F.3d at 443; Petrey, 246 F.3d at 561-62; Mayer,

153 F.3d at 546-47. In addition, all four circuits have relied

on “the presumption that, when Congress omits certain

language in a particular subsection of a statute and

includes the language in other subsections, the omission is

intentional rather than accidental.” Mayer, 153 F.3d at 545;

see also Stucky, F.3d at 440-41; Petrey, 246 F.3d at 561;

Tocher, 219 F.3d at 1051.

As is shown below, these four circuits have wrongly

decided this issue. To reach their decisions, these circuits

did not correctly ascertain Congress’ purpose when

enacting the pre-emption provision and the exception at issue.

Although the goal of the ICC Termination Act was to increase

competition by eliminating state and local laws, that Act

enacted neither the pre-emption provision relied

upon by Ours Garage, nor the safety exemption relied

upon by the City of Columbus. Instead, the Federal

Aviation Administration Authorization Act of 1994 (“FAA

Authorization Act”) promulgated both the pre-emption

provision and the safety exception at issue. The legislative

history of that Act clearly establishes that Cong/ess’ intent

was to eliminate disparate economic regulation, not local

safety regulations. Additionally, the legislative history

contained in the ICC Termination Act is entitled to little,

if any, weight when determining the legislative intent of the

5

FAA Authorization Act. Furthermore, the four circuits did

not presume that the States’ historic police power to regulate

the towing industry was not to be superseded unless Congress

plainly intended to do so.

Moreover, these four circuits have ignored the clear

command of Mortier. In Mortier, this Court expressly found

that the term “State” is not “self-limiting.” Both before and

after Mortier, numerous courts, including this Court, have

construed “State” in a pre-emption provision (and in other

contexts) to include cities.

Finally, these circuits have wrongly relied on the maxim

that “the expression of one thing is the exclusion of another.”

This maxim has force only if the provisions in question were

included within the same legislative enactment. In this case,

they were not. In addition, a court should not apply this

maxim to exclude agents of a party included in a statute.

Moreover, this maxim is subordinate to legislative intent.

Here, the legislative history of the FAA Authorization Act

clearly shows that Congress did not intend to eliminate

municipal safety regulation when enacting that law. Perhaps

for these reasons, this Court has warned lower courts several

times about the dangers of blindly using this maxim.

As the Sixth Circuit has unmistakably erred in holding

that Section 14501(c) pre-empts cities from regulating tow

truck operations, this Court must correct that error.

6

ARGUMENT

I. The Sixth Circuit’s Decision Clearly Misapplies

Medtronic.

A. The Framework of Pre-emption Analysis.

The Supremacy Clause of the United States Constitution

declares that “the Laws of the United States . . . shall be the

supreme Law of the Land... , any Thing in the Constitution

or Laws of any State to the Contrary notwithstanding.”

U.S. Const. art. VI, cl. 2. As a consequence, state laws are

pre-empted when they conflict with a federal law, and they

must yield to that law. See, e.g., Cipollone v. Liggett Group,

Inc., 505 U.S. 504, 516 (1992); Gibbons v. Ogden, 22 U.S.

(9 Wheat.) 1, 210-11 (1824). Federal law pre-empts state

law under the Supremacy Clause when (1) Congress defines

explicitly the extent to which a federal statute pre-empts state

law (“express pre-emption”), (2) the state law directly

conflicts with the force or purpose of federal law (“conflict

pre-emption’), or (3) the federal law occupies a legislative

field to such an extent that it is reasonable to infer that

Congress left no room for state regulation in that field (“field

pre-emption”). Cipollone, 505 U.S. at 516. Although a

municipal ordinance rather than a state law is at issue in this

case, the constitutionality of a municipal ordinance for

purposes of the Supremacy Clause is “analyzed in the same

way as that of statewide laws.” Mortier, 501 U.S. at 605.

Pre-emption “‘may be either express or implied, and is

compelled whether Congress’ command is explicitly stated

in the statute’s language or implicitly contained in its

structure and purpose.”” Morales v. Trans World Airlines,

Inc., 504 U.S. 374, 383 (1992) (quoting FMC Corp. v.

Holliday, 498 U.S. 52, 56-57 (1990)). On the other hand,

“Congress’ enactment of a provision defining the pre-emptive

reach of a statute implies that matters beyond that reach are

not pre-empted.” Cipollone, 505 U.S. at 517.

-

Where a federal statute expressly pre-empts state or local

law, “analysis of the scope of the pre-emption statute must

begin with its text.” Medtronic v. Lohr, 518 U.S. 470, 484

(1996) (citations omitted). The interpretation of the text is

guided by two presumptions about the nature of pre-emption.

First, a court should “‘start with the assumption that

the historic police powers of the States [are] not to be

superseded . . . unless that was the clear and manifest purpose

of Congress.’” Jd. at 485 (quoting Rice v. Santa Fe Elevator

Corp., 331 U.S. 218, 230 (1947)); see also English v. General

Elec. Co., 496 U.S. 72, 79 (1990). This presumption is

especially strong in areas such as health and safety measures.

English, 496 U.S. at 79. This approach is “consistent with

both federalism concerns and the historic primacy of state

regulation of matters of health and safety.” Medtronic, 518

U.S. at 485.

The second presumption is that Congress’ purpose

is the “ultimate touchstone” of pre-emption analysis. /d.

(quoting Retail Clerks Int'l Ass'n, Local 1625 v.

Schermerhorn, 375 U.S. 96, 103 (1963)); Cipollone, 505 U.S.

at 516. “Congress” intent, of course, primarily is discerned

from the language of the pre-emption statute and the

‘statutory framework’ surrounding it.” Medtronic, 518 U.S

at 485 (citation omitted). The “structure and purpose of the

statute as a whole” may also be considered. /d. In addition,

even with a clear expression of intent to pre-empt state and

local regulation, a court must still determine the scope of

pre-emption. /d.

B. The Sixth Circuit Misapplied Both Medtronic

Presumptions.

1. Congress’ Purpose When Enacting the

Safety Exemption Was to Leave State Safety

Authority Unaffected.

In Ours Garage, the Sixth Circuit relied completely on

its decision in Petrey when affirming the district court’s ruling

that the City of Columbus could not regulate consensual

towing. Ours Garage, 257 F.3d at 507. In turn, the Sixth

Circuit found in Petrey that the goal of the ICC Termination

Act was to increase competition among motor carriers by

eliminating burdensome state and local laws. See Petrey, 246

F.3d at 563. Similarly, the Fifth, Ninth, and Eleventh Circuits

also determined that the legislative history behind the

enactment of the ICC Termination Act showed that Congress’

purpose was to increase competition by eliminating state and

local regulations. See Stucky, F.3d at 444-46; Tocher, 219

F.3d at 1051; Mayer, 153 F.3d at 546. -

The City does not dispute that Congress generally

intended to eliminate state and local regulation when enacting

the ICC Termination Act. Nonetheless, the Sixth Circuit’s

focus on the ICC Termination Act misses the mark because

the FAA Authorization Act contains both the pre-emption

provision relied upon by Ours Garage and the safety

exemption relied upon by the City of Columbus. See Pub. L.

No. 103-305, § 601(c), 108 Stat. 1569, 1606 (1994). The

legislative history of the FAA Authorization Act shows that

Congress’ deregulatory purpose was to eliminate disparate

economic regulations, not local safety regulations:

[P]reemption legislation is in the public interest

as well as necessary to facilitate interstate

commerce. State economic regulation of motor

9

carrier operations causes significant inefficiencies,

increased costs, reduction of competition,

inhibition of innovation and technology and

curtails the expansion of markets. . . . The sheer

diversity of these regulatory schemes is a huge

problem for national and regional carriers

attempting to conduct a standard way of doing

business.

H.R. Conf. Rep. No. 677, 103rd Cong., 2d Sess. at 87 (1994),

reprinted in 1994 U.S.C.C.A.N. 1715, 1759 (emphasis

added). Specifically, legislative history demonstrates that

Congress’ purpose was to free the motor carrier industry from

state and local economic regulation and to put that industry

on a playing field level with that of the air carrier industry,

which Congress had already deregulated by passing the

Airline Deregulation Act of 1978. See id. at 85, 87, reprinted

in 1994 U.S.C.C.A.N. at 1757, 1759. Thus, Congress

intended to eliminate the competitive advantage that air

carriers, such as Federal Express, had enjoyed under decisions

interpreting the 1978 statute relative to motor carriers, such

as United Parcel Service. /d.

By contrast, even though state safety regulation is

presumably just as “diverse” as state economic regulation,

the conference report does not say that safety regulation

causes any problems. In fact, there is no evidence or

congressional finding that municipal safety regulations would

interfere with Congress’ concern for competitiveness in tow

trucking. The legislative history of the FAA Authorization

Act indeed shows that state safety regulatory authority

(presumably including the authority to delegate) was to be

“unaffected” by the pre-emption provision. See id. at 84, 85,

reprinted in 1994 U.S.C.C.A.N. at 1756, 1757 (“State

authority to regulate safety, financial fitness and insurance

... of motor carriers is unchanged, since State regulation

10

in those areas is not a price, route or service and thus is

unaffected.”); see also id. at 84, reprinted in 1994

U.S.C.C.A.N. at 1756 (“[N]othing in these new subsections

contains a new grant of Federal authority to a State. . . . The

intention of the conferees is solely to identify certain areas

that are not preempted.”).

2. Congress’ Intent When Enacting the

Nonconsensual Rate Exemption Is Not

Relevant When Determining Its Intent on

the Safety Exemption.

One year after passing the FAA Authorization Act,

Congress enacted the ICC Termination Act. See Pub. L. No.

104-88, 109 Stat. 803 (1995). This statute recodified the pre-

emption provision in its current form as a part of the Interstate

Commerce Act (“ICA”). This statute also added an exception

to pre-emption that authorized States and political

subdivisions to enforce laws relating to the price of a

nonconsensual tow. See 109 Stat. at 899. The House report

for the ICC Termination Act noted that the added exception

to the pre-emption provision “struck a balance between the .

need to protect consumers from exorbitant towing fees and

the need for a free market in towing services.” See H.R. Rep.

No. 311, 104th Cong., 1st Sess. at 120 (1995), reprinted in

1995 U.S.C.C.A.N. 793, 832. Accordingly, the provision was

“not intended to permit re-regulation of any other aspect of

tow truck operations.” /d. at 119, reprinted in 1995

U.S.C.C.A.N. at 831.

The Fifth, Sixth, Ninth, and Eleventh Circuits’

conclusion that Congress intended that Act to prohibit cities

from regulating tow trucks except for the rates for

nonconsensual tows was based on the comments of an

individual legislator before the passage of the ICC

Termination Act in 1995 and the Act’s conference report.

11

See Stucky, 260 F.2d at 444 n.24 (statement of Rep. Rahall);

Petrey, 246 F.3d at 563 (conference report); Mayer, 158 F.3d

at 544-45 (conference report and statement of Rep. Rahall);

Tocher, 219 F.3d at 1051 (relying on Mayer).

The conference report and the comments are inapposite

for at least two reasons. First, the conference report and the

comments do not address the safety exception at issue in

this case; instead, they were made in connection with the

enactment of the “nonconsensual rate” exception to the pre-

emption provision in the ICC Termination Act. Second, even

if the comments were somehow applicable, they occurred

after the enactment of the exception at issue. Post-enactment

statements are entitled to little weight. Regional Rail Reorg.

Act Cases, 419 U.S. 102, 132 (1974); National Woodwork

Mfrs. Ass'n v. NLRB, 386 U.S. 612, 639 n.34 (1967).

The same is true for a post-enactment conference report

because “the view of a later Congress cannot control the

interpretation of an earlier enacted statute.” O’Gilvie v. United

States, 519 U.S. 79, 89 (1996). Thus, the Sixth Circuit erred

when it based its decision on the legislative history of the

ICC Termination Act because that history was post-enactment

to the passage of the FAA Authorization Act.

3. Regulation of Tow Trucks Falls Within the

Historic Police Powers of the States.

The issue in this case implicates an important federalism

concern.' When analyzing the scope of a federal pre-emption

1. While Congress has substantial powers to govern the

Nation directly, including in areas of intimate concern

to the States, the Constitution has never been

understood to confer upon Congress the ability to

require the States to govern according to Congress’

instructions. . . . The allocation of power contained in

the- Commerce Clause, for example, authorizes

(Cont'd)

12

provision, this Court for years has recognized that the analysis

starts with the assumption that the statute does not supersede

the “historic police powers of the States” unless that was

“the clear and manifest purpose of Congress.” Medtronic,

518 U.S. at 485.

The Court has defined the police power “as the authority

to provide for the public health, safety, and morals.”

Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991).

For years, courts have acknowledged that States and their

cities may exercise their police power by regulating tow

trucks to prevent traffic congestion and attendant dangers.

See, e.g., Librizzi v. Plunkett, 16 A.2d 280, 281-82 (N.J.

1940); Hempstead T—W. Corp. v. Town of Hempstead,

177 N.Y.S.2d 445, 451-52 (N.Y. Sup. Ct. 1958), aff’d,

179 N.Y.S.2d 848 (N.Y. App. Div. 1958); City of Chattanooga

v. Fanberg, 265 S.W.2d 15, 19-20 (Tenn. 1954); Harris,

157 S.W.2d at 711-12; cf Interstate Towing Ass'n, Inc. v.

City of Cincinnati, 6 F.3d 1154, 1165 (6th Cir. 1993)

(noting “municipal regulation of the business of towing is

not unusual’). In Fanberg, the court specifically noted that

States often delegate their power to regulate tow trucks to

their cities:

It seems to us clear under many authorities that

the business of carrying or transporting property

for hire is a privilege, the licensing, regulation

(Cont'd)

Congress to regulate interstate commerce directly; it

does not authorize Congress to regulate state

governments’ regulation of interstate commerce.

New York v. United States, 505 U.S. 1041, 144, 162-66 (1992) (citing

Coyle v. Oklahoma, 221 U.S. 559, 565 (1911)); see also Metcalf &

Eddy v. Mitchell, 269 U.S. 514, 523 (1926) (“neither government

may destroy the other nor curtail in any substantial manner the

exercise of its powers”).

13

and control of which is a legislative prerogative.

This power to regulate the roads and streets is

likewise a legislative prerogative and may be

delegated by the Legislature of the State to the

cities who in turn may by ordinance regulate

control of the use and operation of wreckers or

towing cars on its streets.

Id. at 19.

For decades, this Court also has recognized that States

may regulate businesses that use streets:

It is well established law that the highways of the

state are public property; that their primary and

preferred use is for private purposes; and that their

use for purposes of gain is special and

extraordinary, which, generally at least, the

legislature may prohibit or condition as it sees fit.

Stephenson v. Binford, 287 U.S. 251, 256 (1932). In fact,

“{I]n no field has [this Court’s] deference to state regulation

been greater than that of highway safety regulation.”

Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429, 443-44

(1978).

Furthermore, this Court knows that States have

traditionally delegated their regulatory authority to their

cities. See, e.g., Mortier, 501 U.S. at 607-09. In this case,

the people of the State of Ohio have granted municipalities

general authority “to exercise all powers of local self-

government and to adopt and enforce within their limits such

local police, sanitary and other similar regulations, as are

not in conflict with the general laws.” See Ohio Const. art.

XVII, § 3. In addition, the Ohio Legislature has expressly

delegated its power to the City of Columbus to regulate motor

14

vehicles and the transportation of articles upon its highways.

See Ohio Rev. Code Ann. §§ 715.22, 723.01 (Baldwin 1994).

Most importantly, the Ohio Legislature has specifically

exempted tow trucks from state law requirements for

motor carriers, thereby allowing cities and other local

governments to regulate tow trucks. See Ohio Rev. Code Ann.

§§ 4921.02(A)(8), 4923.02(A)(10) (Baldwin Supp. 2001);

see also City of Cincinnati v. Reed, 500 N.E.2d 333, 339

(Ohio Ct. App. 1985) (holding that state law authorized

municipal towing ordinance). Based on the State of Ohio’s

long-standing delegation of its authority to regulate tow

trucks, the City of Columbus enacted the laws at issue.

This Court has consistently regarded state

regulations concerning public safety on streets and highways

as inherently local in nature. See, e.g., Pike v. Bruce Church,

Inc., 397 U.S. 137, 142 (1970). This Court’s deference to

the historic police power of the States and their cities not

only is mandated by the Constitution, but also should result

in the best protection of the public:

The City Fathers of Chattanooga who enacted the

Ordinance are presumed to be familiar with the

local conditions and the necessity for the

regulation of wreckers and towing cars. These

legislative and administrative officials of the city

are the ones who receive complaints about such

things and they are the ones who are in a position

to know what should be done to protect the

public safety.

Fanberg, 265 S.W.2d at 20; see also The Federalist No. 17,

at 107 (Alexander Hamilton), No. 46, at 316 (James Madison)

(J. Cooke ed. 1961).

Here, Congress did not prescribe how States were to

assert their authority when it enacted the FAA Authorization

15

Act. Congress must have known, however, that virtually all

States delegate considerable police powers to their cities,

including responsibility for the public’s safety on streets and

thoroughfares. Nonetheless, Congress, when promulgating

the Act, did not explicitly prohibit cities from regulating the

public-safety aspects of tow trucks.

Several state legislatures have examined Section 14501

and concluded that they may lawfully delegate their

regulatory authority over tow trucks to some or all of their

municipalities. See, e.g., Cal. Veh. Code §§ 21100(g),

22850.5 (West 2001) (delegating State of California’s

regulatory authority over licensing and regulating the

operation of tow truck service and tow truck drivers to its

municipalities); La. Rev. Stat. Ann. § 32:1714(2) (West 2000)

(delegating State of Louisiana’s regulatory authority to its

municipalities with a population of 450,000 or more);

N.Y. Veh. & Traf. Law § 1642(a)(15) (McKinney 1996)

(delegating New York State’s regulatory authority to its

municipalities with a population of more than one million);

Tex. Transp. Code Ann. § 643.201(a) (Vernon Supp. 2002)

(delegating State of Texas’ regulatory authority to its

municipalities).

One of the “first principles of constitutional

adjudication” is “the basic presumption of the constitutional

validity of a duly enacted state . . . law.” Lemon v. Kurtzman,

411 U.S. 192, 208 (1973) (citation omitted). Here, the Sixth

Circuit did not presume that the Ohio statutes delegating

regulatory authority to cities were constitutional. Instead, the

new pre-emption presumption proposed by the Mayer,

Tocher, Petrey, and Stucky courts turns the Medtronic

presumption on its head and would represent a significant

16

intrusion into the States’ abilities to handle matters entrusted

to them by Congress.’

4. Summary.

As stated above, Congress’ purpose is the “ultimate

touchstone” of pre-emption analysis. Medtronic, 518 U.S. at

485. Here, the legislative history of the FAA Authorization

Act shows that Congress’ deregulatory purpose was to

eliminate disparate economic regulations, not local safety

regulations. Moreover, the legislative history of the ICC

Termination Act is entitled to little, if any, weight when

interpreting the FAA Authorization Act.

To the extent that the scope of Congress’ purpose may

be unclear, this Court should not construe the text of Section

14501 in a way that unnecessarily frustrates the ability of

cities to respond to the safety concerns created by local

towing companies. A construction allowing deference to local

2. Courts have taken notice of the “great advantage” tow

companies have over the owners of towed cars. California ex rel.

Renne v. Servantes, 103 Cal. Rptr. 2d 870, 872 (Cal. Ct. App. 2001)

(citing Porter v. City of Atlanta, 384 S.E.2d 631, 634 (Ga. 1989)),

review denied, (Cal. May 16, 2001), petition for cert. filed,

70 U.S.L.W. 3162 (U.S. Aug. 14, 2001) (No. 01-336). This advantage

can lead to widespread abuses of the public. Servantes, 103 Cal.

Rptr. 2d at 872-73, 878, 879.

Recognizing the dangers that these abuses may present to public

safety as well as inherent dangers presented by tow trucks, the State

of Texas has left much of the field of tow truck regulation to its

municipalities, presumably believing that it could lawfully do so. If

this Court were to hold that States cannot delegate such authority,

then this precedent would hamper the States in their efforts to protect

public safety. This is not sound public policy. See Ace Auto Body &

Towing, Ltd. v. City of New York, 171 F.3d 765, 776 (2d Cir. 1999),

cert. denied, 528 U.S. 868 (1999) (finding its holding consistent with

public policy).

17

responsibility and expertise would be consistent with the

presumption against pre-emption of state and local

regulations. Jd.

II. The Sixth Circuit’s Decision Deprives Cities of Their

Police Power Contrary to the Clear Mandate of

Mortier.

In Petrey, the Sixth Circuit found that, because the law

at issue in Mortier differed from Section 14501(c), Mortier

did not always require the term “State” in a statute to

include a State’s political subdivisions. See Petrey, 246 F.3d

at 561-62; see also Stucky, F.3d at 443; Mayer, 153 F.3d

at 546-47.

On its face, Section 14501(c)(2)(A) excepts only “State”

regulatory authority concerning safety and insurance.’

For purposes of the ICA, “State” means “the 50 States of

the United States and the District of Columbia.” 49 U.S.C.

§ 13102(18). By contrast, Section 14501(c)(2)(C) allows a

State and its political subdivisions to regulate the prices of

nonconsensual tows.

Although Subsection (c)(2)(A) expressly refers only to

“State” regulatory authority, that does not mean that this

subsection does not also allow municipal regulation.

For example, the Federal Insecticide, Fungicide, and

Rodenticide Act (FIFRA), although explicitly permitting only

“a State” to regulate pesticides subject to certain federal

restrictions, and defining “State” as “‘a State, the District of

Columbia, the Commonwealth of Puerto Rico, the Virgin

Islands, and American Samoa,” does not limit a State’s power

to redelegate its authority to a political subdivision. Mortier,

501 U.S. at 607-09, 611-12.

3. Even though Congress failed to mention municipal safety

regulation in this section, it did not explicitly pre-empt municipal

safety regulation. Had Congress intended not to except municipal

safety regulations, Congress could have said so.

18

The statute at issue in Mortier provided:

(a) A State may regulate the sale or use of any federally

registered pesticide or device in the State, but only if

and to the extent the regulation does not permit any sale

or use prohibited by this subchapter.

(b) Such State shall not impose or continue in effect any

requirements for labeling or packaging in addition to or

different from those required under this subchapter.

7 U.S.C. § 136v.

Nonetheless, this Court found the language of Sections

136(aa) and 136v to be “wholly inadequate to convey

an express preemptive intent.” Mortier, 501 U.S. at 607.

“Mere silence” would not “suffice to establish ‘a clear

and manifest purpose’ to pre-empt local authority.” Jd.;

see also Florida Lime & Avocado Growers, Inc. v. Paul,

373 U.S. 132, 146-47 (1963) (pre-emption of regulation

enacted pursuant to police power will not occur “in the.

absence of an unambiguous congressional mandate to that

effect”). The Court also observed the well-established rule

that units of local government are created to exercise such

powers as a State may entrust to them in its absolute

discretion. Mortier, 501 U.S. at 607-08. Consequently,

“the exclusion of political subdivisions cannot be inferred

from the express authorization to the ‘State[s]’ because

political subdivisions are components of the very entity

the statute empowers.” Id. at 608 (emphasis added). In other

4. For example, the City is an integral component of the State

of Texas. Municipal ordinances are state law and are prosecuted

“In the name and by the authority of the State of Texas.” Tex. Code

Crim. Proc. Ann. art. 45.019 (Vernon Supp. 2002); see also Tex.

Code Crim. Proc. Ann. art. 45.201 (Vernon Supp. 2002) (authorizing

city attorney to represent the State in prosecutions in municipal

(Cont'd)

19

words, the term “State” is not “self-limiting.” Mortier,

501 U.S. at 612. To the contrary, the most “plausible reading

of FIFRA’s authorization to the States leaves the allocation

of regulatory authority to the ‘absolute discretion’ of the

States themselves, including the option of leaving local

regulation of pesticides in the hands of local authorities.”

(Cont’d)

courts). Moreover, under the Texas Constitution, the City is a home-

rule municipality. See Special Act of April 13, 1907, 30th Leg.,

Ist C.S., ch. 71, 1907 Tex. Spec. Laws 568; Tex. Const. art. XI, § 5;

see also Dallas Merchants & Concessionaires Ass'n v. City of Dallas,

852 S.W.2d 489, 490 (Tex. 1993). The Texas Local Government Code

provides that a home-rule municipality has the full power of local

self-government. Tex. Loc. Gov’t Code Ann. § 51.072 (Vernon 1999).

Accordingly, “{h]ome-rule cities possess the full power of self

government and look to the Legislature not for grants of power, but

only for limitations on their power.” Dallas Merchants, 852 S.W.2d

at 490-91.

“Cities occupy an important place in our system of government.

In many instances they have been created as arms of the State

government, with authority to help protect and maintain the general

welfare of the public.” L-M-S Inc. v. Blackwell, 233 S.W.2d 286,

288 (Tex. 1950). When a home-rule city conducts a governmental

activity or function, it is operating as an arm or agent of the State.

Dilley v. City of Houston, 222 S.W.2d 992, 993 (Tex. 1949).

The regulation of tow trucks in Texas is beyond doubt

a governmental function. The Texas Legislature has expressly

delegated its power to the City to regulate tow truck operations:

“(A] municipality may regulate the operation of a tow truck to the

extent allowed by federal law.” Tex. Transp. Code Ann. § 643.201(a).

Furthermore, the Texas Tort Claims Act recognizes “regulation of

traffic” and “parking facilities” as governmental functions. Tex. Civ.

Prac. & Rem. Code Ann. § 101.0215(a)(21), (25) (Vernon Supp.

2002 ,; see also Town of Ascarate v. Villalobos, 223 S.W.2d 945, 950

(Tex. 1949) (“A municipal corporation is considered an arm of the

State, and has the police power to protect the safety of the public,

and in the exercise of its police power to protect the public from

traffic hazards”).

20

Id. at 608 (emphasis added). Thus, the express delegation of

regulatory authority to a State may well mean that it is

permitted to redelegate its authority to a “political

subdivision{] either specifically or by leaving undisturbed

... existing statutes that would otherwise provide [a] local

government with ample authority to regulate.” Jd. at 612.°

5. Since 1991, several lower courts have applied Mortier to hold

that federal statutes allowing a “State” to regulate also authorize its

political subdivisions to do so. See Fireman's Fund Ins. Co. v. Lodi,

271 F.3d 911, 932-36 (9th Cir. 2001) (holding that the term “State”

in pre-emption provisions in Comprehensive Environmental

Response, Compensation and Liability Act (CERCLA), 42 U.S.C.

§§ 9601-9675, does not prohibit municipalities from enacting

hazardous waste regulations); Cablevision of Boston, Inc. v. Public

Improvement Comm'n of Boston, 184 F.3d 88, 98 (ist Cir. 1999)

(holding that pre-emption provision of Telecommunications Act of

1996, 47 U.S.C. § 151 et seq., does not prohibit States from delegating

their powers under the Act); Coparr, Ltd. v. City of Boulder,

942 F.2d 724, 726 (10th Cir. 1991) (holding that FIFRA does not

prohibit States from authorizing municipalities to impose notification

requirements concerning pesticide use on private individuals, property

owners, and the general public); AT&T Communications of the

Southwest, Inc. v. City of Dallas, 8 F. Supp. 2d 582, 591 (N.D. Tex.

1998) (holding that Telecommunications Act of 1996 does not

prohibit States from re-delegating their powers under the Act);

AT&T Communications of the Southwest, Inc. v. City of Austin, 975

F. Supp. 928, 939-40 (W.D. Tex. 1997) (citing Mortier for proposition

that “State’s authority to regulate under a federal statute necessarily

includes the authority to delegate local regulation, including

regulation for public health, safety, and welfare purposes, to local

authorities”); cf, Environmental Encapsulating Corp. v. City of New

York, 855 F.2d 48, 54-55 (2d Cir. 1988) (holding that the term “State”

in pre-emption provision of Occupational Safety and Health Act of

1970, 29 U.S.C. § 667, does not prohibit cities from enacting laws to

protect public from asbestos removal); California ex rel. Deukmejian

v. County of Mendocino, 683 P.2d 1150, 1159-60 (Cal. 1984)

(holding FIFRA does not preclude States from authorizing local

governments to enact restrictive pesticide regulations); Citizens for

a Safer Community v. City of Rochester, 627 N.Y.S.2d 193, 200-01

(Cont'd)

21

Other regulatory exceptions listed in Subsection

(c)(2)(A) confirm the conclusion that Congress’ use of the

term “a State” is not limiting. One example is the exception

allowing “a State to impose highway route controls or

limitations based on . . . the hazardous nature of the cargo”

refers to the HMTA Act. See 49 U.S.C. §§ 5101-5127.

The HMTA Act’s structure allows a city to exercise authority

over the routing of hazardous materials shipments by a motor

carrier if it complies with the standards prescribed by the

Act and the Secretary of Transportation. See 49 U.S.C.

§§ 5112, 5125; see also Jersey Cent. Power & Light Co. v.

Township of Lacey, 772 F.2d 1103, 1112-13 (3d Cir. 1985),

cert. denied, 475 U.S. 1013 (1986); City of New York v.

United States Dep t of Transp., 715 F.2d 732 (2d Cir. 1983),

appeal dismissed and cert. denied, 465 U.S. 1055 (1984);

National Tank Truck Carriers, Inc. v. City of New York,

677 F.2d 270 (2d Cir. 1982). ;

Notwithstanding this weight of authority, the Fifth, Sixth,

and Eleventh Circuits all explicitly refused to apply Mortier

to Section 14501(c). See Stucky, 260 F.3d at 443; Petrey, 246

F.3d at 561-62; Mayer, 153 F.3d at 546-47.

(Cont'd)

(N.Y. Sup. Ct. 1994) (holding that Second Amendment to the U.S.

Constitution and Civilian Marksmanship Program, 10 U.S.C. §§ 4307-

4311, repealed by Defense Authorization Act of 1996, P.L. 104-106,

§ 1624, 110 Stat. 186, 522 (1996), did not pre-empt city ordinance

that restricted possession of automatic and semiautomatic weapons);

Arnold v. Cleveland, 616 N.E.2d 163, 173 (Ohio 1993) (holding that

Second Amendment to the U.S. Constitution and Civilian

Marksmanship Program did not pre-empt city ordinance prohibiting

possession and sale of “assault weapons”).

22

Ill. A Reversal of Ours Garage Does Not Conflict with

BFP and Russello.

Despite the clear command of Mortier, the Sixth Circuit

as well as the Fifth, Ninth and Eleventh Circuits followed

“the presumption that, when Congress omits certain language

in a particular subsection of a statute and includes the

language in other subsections, the omission is intentional

rather than accidental.” Stucky, 260 F.3d at 440-41 (relying

on Russello v. United States, 464 U.S. 16, 23 (1983));

see also Petrey, 246 F.3d at 561 (relying on BFP v. Resolution

Trust Corp., 511 U.S. 531, 537 (1994), and Russello); Tocher,

219 F.3d at 1051; Mayer, 153 F.3d at 545 (relying on BFP

and Russello). This is simply another way of stating the

maxim “expressio unius est exclusio alterius,” which means

“the expression of one thing is the exclusion of another.”

This maxim should not be applied to the FAA

Authorization Act for several reasons. First, Russello itself

counsels that this presumption has force only if the provisions

in question are included within the same legislative

enactment: ““‘[W]here Congress includes particular language

in one section of a statute but omits it in another section of

the same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or

exclusion.’” Russello, 464 U.S. at 23 (citation omitted;

brackets original; emphasis added). Here, the two exceptions

to pre-emption were passed in two different acts.

Second, this maxim should not be applied to exclude

agents of a party included in a statute. Seven years before

Mortier, the California Supreme Court examined whether

FIFRA, a statute that authorized “State” regulation of

pesticides, precluded States from authorizing local

governments to enact such regulations. See County of

23

Mendocino, 683 P.2d 1150. Some plaintiffs relied upon this

maxim, claiming that the reference to “State” should be read

as excluding local governmental regulation. That court

rejected the application of the maxim for two reasons:

Because local governmental agencies are political

subdivisions of the state, the maxim may not be

applied. The maxim may be applied to comparable

or perhaps similar nouns, but there is no reason

to apply it to exclude agents of the enumerated

party. Moreover, even if the maxim were

applicable, it would only warrant the conclusion

that the statute did not authorize regulation; it

would not establish that local regulation was

prohibited.

Id. at 1160.

Third, this maxim is subordinate to legislative intent or

policy. See, e.g., Herman & MacLean v. Huddleston, 459 U.S.

375, 387 n.23 (1983); Securities & Exch. Comm'n v. C.M.

Joiner Leasing Corp., 320 U.S. 344, 350-51 (1943)

However well these rules may serve at times to

aid in deciphering legislative intent, they long

have been subordinated to the doctrine that courts

will construe the details of an act in conformity

with its dominating general purpose, will read text

in the light of context and will interpret the text

so far as the meaning of the words fairly permits

So as to carry out in particular cases the generally

expressed legislative policy.

Ford, 273 U.S. at 611; Johnson v. Southern Pac. Co.,

196 U.S. 1, 15 (1904). Fourth, this maxim is only an aid to

statutory construction and not a rule of law. United States v.

24 25

Castro, 837 F.2d 441, 443 n.2 (11th Cir. 1988). Accordingly, CONCLUSION

the maxim should be used with care. See Castro, 837 F.2d at

443 n.2. Perhaps for these reasons, this Court has quoted The Court should reverse the judgment of the Sixth Circuit

Lord Justice Lopes’ warning about using this maxim: and hold that 49 U.S.C. § 14501(c) does not pre-empt cities

from regulating vehicle towing.

It is often a valuable servant, but a dangerous

master to follow in the construction of statutes or Respectfully submitted,

documents. The “exclusio” is often the result of

inadvertence or accident, and the maxim ought : MADELEINE B. JoHNsc N

not to be applied, when its application, having City Attorney

regard to the subject-matter to which it is to be CHRISTOPHER D. Bowers*

applied, leads to inconsistency or injustice. Assistant City Attorney

City of Dallas

Ford v. United States, 273 U.S. 593, 611-12 (1927). 7BN Dallas City Hall

1500 Marilla Street

Here, the legislative history of the FAA Authorization Dallas, Texas 75201-6318

Act shows that Congress’ purpose was to eliminate disparate (214) 670-3519

economic regulations, not local safety laws. Furthermore,

the legislative history of the ICC Termination Act is entitled

to little, if any, weight. Therefore, the application of the Cc lof R

maxim to Section 14501(c) would lead to an injustice. NEG anaes

Counsel for Amicus