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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 536 U.S. 424

## Text

(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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0504%3A18. Public record. Not legal advice.