Opposition Brief — Mid-Con Freight Systems, Inc. v. Michigan Pub. Serv. Comm'n
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03-1234
Supreme Coun. US
FILED
MAY 3 - 2004
OFFICE OF THE CLERK
In the Supreme Court of the Anited States
MID-CON FREIGHT SYSTEMS, INC.
and LAFOND EXPRESS, INC.,
Petitioners,
Vv.
MICHIGAN PUBLIC SERVICE
COMMISSION, ET AL
Respondents.
On Petition For Writ of Certiorari
To The Michigan Court of Appeals
BRIEF IN OPPOSITION TO
PETITION FOR A WRIT OF CERTIORARI
Michael A. Cox
Attorney General
Thomas L. Casey
Solicitor General
P. O. Box 30212
525 W. Ottawa Street
Lansing, Michigan 48909
(517) 373-1124
Counsel of Record
Henry J. Boynton
Assistant Solicitor General
David A. Voges
Emmanuel B. Odunlami
Assistant Attorneys General
Attorneys for Respondents
QUESTIONS PRESENTED
Under MCL 478.2(2), motor carrier vehicles base-plated in
Michigan that engage entirely in interstate commerce pay an
annual fee of $100 for the administration of the Michigan Motor
Carrier Act and other Acts related to the safety of Michigan’s
highways. Petitioners assert that MCL 478.2(2) is preempted by
49 USC 11506 that provides for the annual registration of a
federal certificate and proof of insurance. Based on the record
before it, the Michigan Court of Appeals found the $100 fee
could reasonably be classified as a regulatory fee because it is a
fee imposed for the administration of the Michigan Motor Carrier
Act, particularly covering costs of enforcing safety regulations.
The questions presented are:
Whether the Michigan Court of Appeals correctly
concluded that the $100 fee required by MCL 478.2(2) for
interstate vehicles that are licensed in Michigan was not
preempted by federal law.
Where the Petitioners failed to present evidence to support
their claims, did the Michigan Courts properly grant summary
disposition against them?
PARTIES TO THE PROCEEDING
The parties to the proceeding in the Michigan Court of
Appeals were Westlake Transportation, Inc., Vanderkooi
Carriers, Inc., El Toro Motor Freight, Inc., Myriah, Inc., Prism,
Inc., Gerrigs Trucking & Leasing, Inc., Best Way Express, Inc.,
Troy Cab, Inc., Deeco Services, Inc., d/b/a Deeco Transportation,
Tiberio Frank, d/b/a Fairfield Towing, Elex, Inc., d/b/a Lafond
Express, Dale Constine & Sons, Inc., Calcut Sales & Services,
Inc., d/b/a Calcut Trucking Company, Ambassador
Transportation, Inc., Hawkins Steel Cartage, Inc., Midcon Freight
Systems, Inc., JLH Transfer, Inc., H & H Enterprises, Inc., d/b/a
S & M Cartage, Inc., Central Transport, Inc., Bancroft Trucking
Company, US Truck Company, Inc., West End Cartage, Inc.,
Central Cartage Company, CTX, Inc., Mohawk Motor Michigan,
Inc., Economy Transport, Inc., McKinlay Transport Limited,
Mason & Dixon Lines, Inc., Universal Amcan Limited, Romeo
Expediters, Inc., Tom Thumb Services, Inc., d/b/a REI, OJ
Transport Company, JLAW Enterprises, Inc., OJ Transport, Inc.,
Michigan Public Service Commission, Michigan Department of
Treasury, Michigan Department of Commerce, the State of
Michigan, American Trucking Associations, Inc., and TNT
Holland Motor Express, Inc. Petitioner TNT Holland Motor
Express, Inc. has since become USF Holland, Inc.
TABLE OF CONTENTS
QUESTIONS PRESENTED ..........:0:0sssesesseseseesssenseseeseneneeeeneenes i
PARTIES TO THE PROCEEDING. ..........:ccccccccsssseseeseseeneneeees ii
TABLE OF AUTHORITIES ..0.........cccccccescseseeseeesseeseeseenseneeenees Vv
CPTITIIIT IW ccxcceccccccsccsccsecsccscssccscsencscseccscsccssocoscscccscceees l
| TT ee l
CONSTITUTIONAL AND STATUTORY PROVISIONS
STII TIT sncnssiincitirdienentneesenenesnnntsecoepesscsssessnnennenasssseseesneonstessess l
INOS cnczccnseepsccssesesessscsccssesscscecesserscescsscsscsssescesssesssseceses 2
1. Statutory Framework ............c.0ccccsesseerseerseereeeeees 2
2. Court Proceedings..............cccsssrsseesserseersereeeesees 3
a. Michigan Court of Claims................0cs:e+e+ 3
b. Michigan Court of Appeals. ...............-+000 4
c. Michigan Supreme Court ..............cseeeeees 5
REASONS FOR DENYING THE PETITION. ...............0c0-++e0+ 6
A. The Michigan Motor Carrier Act’s fee
provisions are not preempted by federal law. ............. 6
B. RITIOR, ccccccccccscccccscrscceccscssecccesccseccscccoscsscceeee 6
2. MCL 478.2(2) is not subject to federal
preemption unless that is the clear and
unequivocal intention of Congress. ................-+++ 7
3. 49 USC 11506 does not preempt the fee
charged under MCL 478.2(2). ..........es-sseseseereeeeees 8
4. Federal regulations do not preempt MCL
_— (nT ee 11
5. Nothing in the legislative history evidences
an intent of Congress that the registration
standards authorized by 49 USC 11506
preempt state regulatory fees. ..............0cs-reee 13
-iv-
B. The State court precedents relied upon by
Petitioners do not support the conclusion that 49
USC 11506 preempts MCL 478.2(2)...........c-ecceeeseees
D. Under Michigan Court Rule 2.116(c)(10),
summary disposition is properly granted where
a party opposing such a motion failed to present
evidence to support its Claim. ..................ccesseeseeseeees
Gee apy cnsencssnssnsccsnsntiansvensnicnctsittibitaiilnciatacsnianisuiidiand
14
-V-
TABLF. OF AUTHORITIES
Page
Cases
Anderson v Kemper Insurance Co,
128 Mich App 249; 340 NW2d 87 (1983) .............ccccceses 23
Cipollone v Ligget Group, Inc,
| EE TE &
Duprey v Huron & E R Co, Inc,
237 Mich 662; 604 NW2d 702 (1999) .0..........cccccceeseeeeeeees 18
Durant v Stahlin,
375 Mich 628; 135 NW2d 392 (1965) ..............ccccceecceeeeeees 23
Florida Avocado Growers, Inc v Paul,
| a rn eae 3
Louisiana Public Service Comm v Federal
Communications Comm,
ea &
Maiden v Rozwood,
461 Mich 109; 597 NW2d 817 (1999)... cceccceenseeeees 22
New York v FERC,
ha I IE cae Oe a 18
Owner-Operator Independent Driver's Ass'n, Inc v Idaho
Public Utilities Comm,
125 Idaho 401; 871 P2d 818 (1994)... eecccesceeeeseneeees 15
Pacific Gas & Electric Co v California Energy Resources
Conservation and Development Comm,
I ee cncennensnenssipensscsnsemienmntentintnicneseemisecsnes 8
Remes v Dobys,
87 Mich App 534; 274 NW2d 64 (1978) .............ccccceeseeeee 23
Rice v Santa Fe Elevator Corp,
ee ee ee i ertectncnsesscstetncsentnstenncssementnemnemamnpueegs 18
-vi-
Roadway Express Inc v State Treasurer,
120 Ill App 3d 133; 458 NE2d 66 (1983) ............cccccceeeeees 14
Smith v Globe Life Ins Co,
460 Mich 446; 597 NW2d 28 (1999) ooo. eeecceeceeeeeeeenees 23
Spiek v Dept of Transportation,
456 Mich 331; 572 NW2d 201 (1998) 0.0... cccccececeeeeeeeees 22
State Ex Rel Sammons Trucking, Inc v Boedecker,
158 Mont 397; 492 P2d 9919 (1972) .........ccccceeeeeeeees 14, 15
State Ex Rel Sammons Trucking, Inc v Bollinger,
169 Mont 88; 544 P2d 1235 (1976) ..............cccccceeceeeeeneees 15
Westlake Transportation, Inc v Michigan Public Service
Comm,
255 Mich App 589; 662 NW2d 784 (2003) .............ccsssesee |
Yellow Transportation v Michigan,
Se Ce Oe i ccttcinnstennnenenneimemmmennmenenn 19
Statutes
BD Rs GIG crnnnnsnsnsncecensensesesstenscsencmnnesstntnenscmmetnmatennemnnsenien l
Ds CE cccmassanssnsstssmssrnsnssementicnnigiaittiyieuitibiiien 3
49 USC 11506 (1988 ed) (repealed) ...............ccccccceeseeeeeeeeeeeeeees 2
49 USC 11506 (1994 ed) (repealed) ............ccccccececseseereeseeeeees 2
a CR creccrenesnestesesngnenmnemenmemeen 3
TE 19
I OO ccetrnnseneerrtnrememnntinmennmenmmemene 3
Bs Ce i ireeentgeinnnmmnnnmeme 2
alle Sa cay COI crceremanencenmmenntecmessenstensnmmnnnmennnnsnstaiies 10
es PO a cccncererenctnerecimnnsntsarstneanersemmemnenetnntinnnisutiiibiia 11
ES a 11
il SO cerasescsnssresesnsscenenssntansnnscneneseenianeninminiemammnan 11
el SO nnsecncennesnssransessensnsnsmnnesensntermmenntianquentesnannemnenesnens 2
BE GE, 6 BI ccccccscsnsscsressssnssemnnessenssesnssemssessrennneneneen 6, 10
Other Authorities
61 Fed Reg 54706, 54707 (1996)..........cccccccsessseseersesnesenseneenses 2
Rules
H R Rep No. 253, 89th Cong.
Ist Sess., reprinted in 1965 USCCAN 2923, 2924........... 13
Pub L 89-170, 79 Stat 648 (September 6, 1965)...............0000++ 13
S Rep No. 387, 89th Cong., Sess. 4-5 (1965) ...........ccsseseeserees 14
Regulations
ee 16
gk ere 11
IEE ceceremeemee 11
re ND centetremneesnetenenmme 11
re eR cernrnsnncecccerennresnensesersmsegmemnenennesie 11
oe 11
Constitutional Provisions
CD GS 8 Vals OS Serer ernsncensecensncsnntesnnesseneserersenesnseresescesene |
-l-
OPINIONS BELOW
The opinion of the Michigan Court of Appeals (Pet. App. 1-
35) is reported as Westlake Transportation, Inc v Michigan Public
Service Comm, 255 Mich App 589; 662 NW2d 784 (2003). The
trial court rulings (Pet. App. 36-72) and the judgment of the
Michigan Supreme Court denying leave to appeal (Pet. App. 73-
75) are all unrepoxted.
JURISDICTION
The Michigan Court of Appeals decision was entered on
March 11, 2003. The judgment of the Michigan Supreme Court
denying Petitioners’ Application for Leave to Appeal was entered
December 3, 2003. The jurisdiction of this Court is invoked
under 28 USC 1257.
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
The Supremacy Clause of the United States Constitution, art
VI, cl 2, provides in relevant part:
This Constitution, and the Laws of the United States
which shall be made in pursuance thereof. . . shall be the
supreme Law of the Land. . . and the judges in every State
shall be bound thereby, anything in the Constitution or the
Law of any State to the Contrary notwithstanding.
The Commerce Clause of the United States Constitution
provides in relevant part:
The Congress Shall have the Power * * * To Regulate
Commerce * * * among the several States.
MCL 478.2(2) provides:
ie
(2) A motor carri¢i licensed in this state shall pay an
annual fee of $100.00 for each vehicle operated by the
motor carrier which is registered in this state and
operating entirely in interstate commerce. A motor carrier
shall pay a fee of only $50.00 for each self-propelled
motor vehicle operated by or on behalf of the motor
carrier if the motor carrier begins operation of the vehicle
after June 30 and has not previously paid a fee under this
subsection for that vehicle.
Relevant statutory provisions reproduced in the Appendix are
49 USC 11506 (1988 ed) (repealed) (Pet. App. 76-77); 49 USC
11506 (1994 ed) (repealed) (Pet. App. 78-81); and 49 USC 14504
(2000 ed) (Pet. App. 82-85).
STATEMENT
1. Statutory Framework
Since 1933, motor carrier regulation in Michigan has been
under the Michigan Motor Carrier Act (MCA), MCL 475.1, et
seq. Under the MCA, most motor carriers are required to pay an
annual fee of $100 per vehicle for the administration of the act.
MCL 478.2(1) and (2). Subsection | applies to motor carrier
vehicles that operate intrastate pursuant to a certificate of
authority, while subsection 2 applies to motor carrier vehicles
base-plated in Michigan that engage entirely in interstate
commerce. Interstate vehicles base-plated outside of Michigan
are charged a fee of up to $10 for registering their Interstate
Commerce Commission! (ICC) certificate and proof of insurance.
MCL 478.7.
| Congress abolished the ICC in 1995 and assigned responsibility for
administering the new Single State Registration System to the Secretary of
Transportation. See ICC Termination Act of 1995, Pub L 104-88, § 101, 109
Stat 803. The Federal Highway Administration, under the Secretary of
Transportation, adopted the ICC regulations that implemented the Single State
Registration System, 61 Fed Reg 54706, 54707 (1996), and the Federal Motor
Me
Petitioners claim that MCL 478.2(2) is preempted by the
federal Single State Registration System (SSRS), 49 USC 11506’,
and federal regulations. In the SSRS, Congress provided that a
motor carrier having interstate authority must annually register its
federal certificate and proof of insurance with only one of the
states where it is authorized to provide service. Under 49 USC
11506, the SSRS is deemed to satisfy the registration requirement
of all other states, except for a nominal fee of “not to exceed $10
per vehicle” that is permitted to be charged by each state
participating in the SSRS. The scope of the standards authorized
by 49 USC 11506 relate to those forms and procedures required
by federal regulations to prove lawfulness of transportation by
motor carrier. See, 49 USC 11506(a). The standards enumerated
are (1) filing and maintaining ICC certificates; (2) registering
motor vehicles; (3) filing proof of insurance; and (4) filing the
same of a local agent for service of process. 49 USC 11506(b)
further provides that it is not an unreasonable burden for a state to
require a motor carrier subject to ICC jurisdiction to register with
that state.
The Michigan Court of Claims, the Michigan Court of
Appeals, and the Michigan Supreme Court have all considered
Petitioners’ claim that the limitation of § 11506 on registration
fees also limits the regulatory fees under MCL 478.2(2). None of
these courts have found any merit to Petitioners’ claims.
2. Court Proceedings
a. Michigan Court of Claims
In Westlake, et al, Docket No. 95-15628-CM and Troy Cab, et
al, Docket No. 95-15631-CM, Westlake and Troy Cab both
challenged the lawfulness of the collection of fees pursuant to the
Carrier Safety Administration now has authority to administer the system, 49
USC 113(£)(1) [49 USCS 113(f¢€1)).
2 This statute is currently codified as 49 USC 14504; however, Respondents
will refer to the law as § 11506.
eile
MCA. These cases were certified as a class action on June 9,
1995.
On June 22, 1995, Westlake Transportation, Inc. filed a
motion for partial summary disposition asserting that MCL
478.2(2) was preempted by 49 USC 11506. On October 13,
1998, the Court of Claims issued its Opinion, finding that
Petitioners’ motion was without merit and denied the motion (Pet.
App. 36-50). On December 30, 1998, the Court granted the State
Defendants’ Motion for Summary Disposition (Pet. App. 54-56).
On March 7, 2000, the Court denied Plaintiffs’ Motion for
Reconsideration (Pet. App. 57-77). Petitioners filed a claim of
appeal with the Michigan Court of Appeals on March 24, 2000.
b. Michigan Court of Appeals.
On March 11, 2003, the Court of Appeals issued its opinion in
the consolidated appeals and affirmed the Court of Claims
summary disposition ruling in favor of the State Defendants. The
Court stated:
Plaintiffs argue that the federal statutory language is
clear — a state may charge a maximum registration fee of
$10 a vehicle to motor carriers engaged in interstate
commerce, regardless of whether a motor carrier is
in Michigan or another state. Plaintiffs
acknowledge that MCL 478.7 reflects the mandate of §
11506 with regard to motor carriers registered out of
state, [fn with text of MCL 478.7 is omitted] and asserts
that motor carriers registered in Michigan are required to
be charged similarly.
**+
[T]he key questions are (1) to whom does the fee limit in
§ 11506 apply, and (2) to what type of fees. The answers
to these questions can be found in the language of the
statute itself and the federal regulations which interpret it.
ai.
We find that the statutory language and its
accompanying federal regulations are clear. A registration
state is simply a participating state in which a motor
carrier is registering. Therefore, when the statute states
that a participating state may not charge a fee in excess of
$10, this includes the registration state. To conclude
otherwise, that a registration state could set its own fee,
would contravene the express language and purpose of
the statute.
The next question is whether the $100 fee in MCL
478.2(2) is a registration fee, such that it is subject to the
limitation in § 11506, or a regulatory fee. . . .
We find that the $100 interstate fee could reasonably
be classified as a regulatory fee because it is a fee
imposed for the administration of the MCA, particularly
covering costs of enforcing safety regulations. [fn
concerning waiver of fee is omitted] If the purpose of a
fee is to regulate an industry or service, it can be properly
classified as a regulatory fee. Bolt v City of Lansing, 459
Mich 152, 161-162; 587 NW2d 264 (1998). Because the
fee in MCL 487.2(2) is not a registration fee, it is not
subject to preemption by 49 USC 11506.
Petitioners filed an Application for Leave to Appeal with the
Michigan Supreme Court on April 1, 2003.
c. Michigan Supreme Court
On December 3, 2003, the Michigan Supreme Court denied
the applications for leave (Pet. App. 74-75).
je
REASONS FOR DENYING THE PETITION
A. The Michigan Motor Carrier Act’s fee provisions are not
preempted by federal law.
1. Introduction.
Under MCL 478.2(2), motor carrier vehicles that are base-
plated in Michigan and engage entirely in interstate commerce are
assessed an annual fee of $100 for the administration of the
MCA. Petitioners claim that MCL 478.2(2) is preempted by 49
USC 11506 and federal regulations. In the SSRS, Congress
provided that a motor carrier having interstate authority must
annually register its ICC authority and proof of insurance with
only one of the states where it is authorized to provide service.
Under § 11506, this single registration is deemed to satisfy the
registration requirement of all other states, except for a nominal
fee of “not to exceed $10 per vehicle” that is permitted to be
charged by each participating state.
The scope of the standards authorized by § 11506 relate only
to those forms and procedures required by federal regulations to
prove lawfulness of transportation by motor carrier. The
standards enumerated are (1) filing and maintaining ICC
certificates; (2) registering motor vehicles; (3) filing proof of
insurance; and (4) filing the name of a local agent for service of
process. Section 11506(b) further provides that it is not an
unreasonable burden for a state to require a motor carrier subject
to ICC jurisdiction to register with that state.
The fundamental flaw in the Petitioners’ argument is that the
regulatory fee provided for in MCL 478.2(2) is not a requirement
to prove an w:terstate carrier is properly certified under federal
authority or that its motor vehicles are legally registered or that
the carrier is insured or that it has a named agent for service of
process. Rather, the fee supports the enforcement of the MCA;
the Motor Carrier Safety Act, MCL 480.11, et seg; the Michigan
Vehicle Code, MCL 257.1, et seq; size and weight regulation; and
other laws governing commercial motor vehicles and motor
Be
carriers. Hence, it is a fee to cover the cost of regulation and is
not the type of fee addressed by § 11506.
2. MCL 478.2(2) is not subject to federal preemption
unless that is the clear and unequivocal intention of
Congress.
Petitioners claim MCL 478.2(2) has been preempted by
federal law. In addressing this preemption claim, the Michigan
Court of Appeals summarized the source and scope of federal
preemption as follows:
Plaintiffs argue that MCL 478.2(2) is preempted by
federal law, specifically 49 USC § 11506. Determining
whether federal law preempts a state law presents an issue
of statutory construction and is a question of law.
Kohynenbelt v Flagstar Bank, 242 Mich App 21, 27; 617
NW2d 706 (2000). Congressional intent is the
cornerstone of preemption analysis. Fort Halifax Packing
Co v Coyne, 482 US 1, 8; 107 S Ct 2211; 96 L Ed 2d 1
(1987).
The Supremacy Clause of the United States
Constitution provides Congress with the power to
preempt state law. US Const, art 6, cl 2. A general
presumption exists in the law against federal preemption.
Dupyvey v Huron & Eastern R Co, Inc, 237 Mich App 662,
665; 604 NW2d 702 (1999). Federal preemption occurs
only under certain conditions, such as when (1) Congress
enacts a federal statute that expresses a clear intent to
preempt state law, (2) an o=tright or actual conflict exists
between federal and state law, (3) compliance with both
federal and state law is effectively impossible, (4) an
implicit barrier to state regulation exists in federal law,
> See September 14, 1995 Affidavit of Thomas R. Lonergan { 16 (Res. App.
10b ) and Affidavit of Captain Timothy J. Yungfer ¥] 2-12 (Res. App. 30b-
32b).
-8-
(5) Congress has legislated comprehensively, thereby
occupying an entire field and leaving no room for
supplemental state law, or (6) the state law stands as an
obstacle to the accomplishment and execution of the full
objectives of Congress. /d. (Pet. App. 6-7).
Thus, “(t]he critical question in any pre-emption analysis is
always whether Congress intended that federal regulation
supersede state law.” Louisiana Public Service Comm v Federal
Communications Comm, 476 US 355, 369 (1986). Furthermore,
as the U.S. Supreme Court noted in Cipollone v Ligget Group,
Inc, 505 US 504, 517 (1992), “{cjongress’ enactment of a
provision defining the preemptive reach implies that matters
beyond that reach are not pre-empted.”
State regulatory power will not be deemed preempted by
federal regulation unless Congress has “unmistakably so
ordained”. Florida Lime and Avocado Growers v Paul, 373 US
132, 142 (1963). Significantly, an express intent to nullify a state
regulatory program will not be lightly inferred. Pacific Gas &
Electric Co v California Energy Resources Conservation and
Development Comm, 461 US 190 (1983).
As discussed below, Petitioners have failed to carry their
heavy burden to demonstrate that the regulatory fees collected
pursuant to MCL 478.2(2) are preempted under these principles
of constitutional law.
3. 49 USC 11506 does not preempt the fee charged under
MCL 478.2(2).
49 USC 11506 provides, in relevant part, as follows:
-9.
described in paragraph (1) of this subsection, only a State
acting in its capacity as registration State under such
single State system may require a motor carrier holding a
certificate or permit issued under this subtitle —
(i) to file and maintain evidence of such
certificate or permit;
(ii) to file satisfactory proof of required insurance
or qualification as a self-insurer;
(iii) to pay directly to such State fee amounts in
accordance with the fee system established under
subparagraph (Biv) of this paragraph, subject to
allocation of fee revenues among all States in which the
carrier operates and which participate in the single State
registration system; and
(iv) to file the name of a local agent for service of
process.
(B) Receipts; fee system. — such amended standards —
(iv) shall establish a fee system for the filing of
proof of insurance as provided under subparagraph (A (ii)
of this paragraph that (I) will be based on the number of
commercial motor vehicles the carrier operates in a State
and on the number of States in which the carrier operates,
(I) will minimize the costs of complying with the
registration system, and (III) will result in a fee for each
State that is equal to the fee, not to exceed
$10 per vehicle, that such State collected or charged as of
November 15, 1991; and....
(2) Specific requirements. —
(A)Evidence of certificate; proof of insurance;
payment of fees. — Under the amended standards
implementing the single State registration system
The scope of the standards authorized by § | 1506 relates only
to those forms and procedures required by federal regulations to
prove lawfulness of transportation by motor carrier. The
standards enumerated are (1) filing and maintaining ICC
certificates; (2) registering motor vehicles; (3) filing proof of
-10-
- and (4) filing the name of a local agent for service of
process.
Consistent with § 11506, interstate vehicles base-plated
outside of Michigan are charged a fee of up to $10 for registering
their ICC certificate and proof of insurance. MCL 478.7.
However, if an interstate vehicle is base-plated in Michigan, then
MCL 478.2(2) is applicable, which provides as follows:
(2) A motor carrier licensed in this state shall pay an
annual fee of $100.00 for each vehicle operated by the
motor carrier which is registered in this state and
operating entirely in interstate commerce. A motor
carrier shall pay a fee of only $50.00 for each self-
propelled motor vehicle operated by or on behalf of the
motor carrier if the motor carrier begins operation of the
vehicle after June 30 and has not previously paid a fee
under this subsection for that vehicle.
The regulatory fee provided for in MCL 478.2(2) is not just a
requirement to prove an interstate carrier is properly certified
under federal authority or that its motor vehicles are legally
registered or that the carrier is insured, or that it has a named
agent for service of process. Rather, the fee under MCL 478.2(2)
supports the MCA; the Motor Carrier Safety Act, MCL 480.11, er
seq; the Michigan Vehicle Code, MCL 257.1, et seq; and the Fire
Prevention Act, MCL 29.1, et seg.‘ Section 11506 seeks to
provide the motor carrier with the benefit of registering their ICC
authority in one state, for each of the states for which they have
authority. Thus, MCL 478.2(2) literally is not within the
preemptive scope of § 11506.
* See September 14, 1995 Affidavit of Thomas R. Lonergan { 16 (Res. App.
10b ) and Affidavit of Captain Timothy J. Yungfer fj 2-!2 (Res. App. 30b-
32b).
she
Petitioners’ reliance on the language in 49 USC 11506(b) is
misplaced. That provision states: “When a State registration
requirement imposes obligations in excess of the standards, the
part in excess is an unreasonable burden.” The reference to ‘State
registration requirement’ relates to the registration by a motor
carrier of their ICC authority. It is wholly unconnected to the
base-plated registration which is based on a state’s motor vehicle
code or the international registration plan. This distinction is
further evident when one reviews the fee system utilized for the
SSRS. The fee system is based on the number of commercial
motor vehicles the carrier operates in a State, which is not to
exceed $10.00 per vehicle. In contrast, the licensing/plating
registration of a motor vehicle is usually based on the weight of a
vehicle. (See MCL 257.801(1)(j) or MCL 257.801(1)(k) or MCL
257.801g).
The MCL 478.2(2) regulation fee is not encompassed within
the limitations of § 11506.
4. Federal regulations do not preempt MCL 478.2(2).
Petitioners claim that certain pre-SSRS federal regulations
imposed an absolute limit, “not to exceed” $5 initially and later
$19, on all interstate decal fees, including those required by the
state that registers and license plates a motor carrier’s vehicles.
Petitioners allege preempt MCL 478.2(2) simply do not purport
to preempt state regulatory fees.
By their terms, the standards apply only when a state requires
that a motor carrier “file and maintain a current record of its
authority issued by the Interstate Commerce Co:amission” (49
CFR 1023.11); “designate a local agent for service of process...”
(49 CFR 1023.21); or “identify its vehicles as operating under its
ICC authority.” (49 CFR 1023.31). As for 49 CFR 1023.32(a)
and 1023.33 these regulations provide, in pertinent part, that:
-12-
[a] motor carrier shall apply to [a] State for the issuance
of an identification stamp or stamps... For the
registration and identification of the vehicle or vehicles
which it intends to operate . . . within the borders of such
State. . .
The application ... shall be accompanied by the fee, if any,
prescribed by the law of such State; provided, however,
that such fee shall not exceed $10.00 for the issuance of
each such identification stamp; and provided further
(when the State Commission assigns an identification
number in lieu of issuing an identification stamp or
stamps) that such fee shall not exceed $10.00 for each
vehicle operated under the authority of the motor carrier.
In affirming the Court of Claims on this issue, the Michigan
Court of Appeals stated:
The pre-1994 federal regulation substantively
mirrored subsection 11506(c) as amended in 1994.
Because we concluded that the interstate fee is a
regulatory fee, it is outside the scope of the federal law
and was not preempted.* Accordingly, the court did not
err in granting defendants summary disposition.
* We note that cases from other jurisdictions that plaintiffs
cite arc inapplicable in this case. The conclusion in this
case turns on whether the interstate fee is classified as a
regulatory fee or a registration fee. In the cases plaintiffs
cite, there was no disagreement that the fee at issue was a
registration fee.
-13-
legislative history suggest that Congress intended to preempt the
States in matters unrelated to proof of legality of interstate
operations. A regulatory fee is simply not subject to preemption
under the regulations cited by Petitioners.
5. Nothing in the legislative history evidences an intent of
Congress that the registration standards authorized
by 49 USC 11506 preempt state regulatory fees.
Section 11506 was amended in 1965 in response to a need to
control illegal interstate for-hire trucking. Pub L 89-170, 79 Stat
648 (September 6, 1965). The House noted that such illegal
operators represented a “continuing concern” and that despite past
legislative activity, “illegal for-hire trucking continues to be a
significant problem today”. H R Rep No. 253, 89th Cong. Ist
Sess., reprinted in 1965 USCCAN 2923, 2924. Much of the
remedy for this problem was addressed by adoption of additional
civil enforcement provisions to be used by the ICC. In addition,
there was an acknowledgment that states had attempted to help
control the problem by requiring registration of ICC authorized
carriers, but there was no uniformity in such state requirements.
Hence, uniformity would be required. Jd. It was specifically
noted that the federal standards to be adopted under 49 USC
11506 were “to evidence the lawfulness of interstate operations of
a carrier within a state... .” Jd at 2928.
There is no basis for the proposition that state regulatory fees
were to be considered “proof of legality of interstate operations”.
Indeed, it was specifically noted that:
the purpose of such registration is to enable state
enforcement officials to identify motor carriers hauling,
on a for-hire basis, commodities subject to regulation and
thus take on-the-spot action against those who have not
the authority to do so. This, in effect, means that we want
In the foregoing circumstances, federal standards control and
contrary state standards are preempted. None of these
to encourage the states in helping the ICC keep unlawful
interstate motor carriers off the highway. See
Rec. 9672 (May 6, 1965) (statement of Rep. Harris,
-14-
Chairman, Committee on Interstate and Foreign
Commerce.)
Nothing here justifies the argument that Congress intended to
deprive the states of their ability to otherwise regulate in the
ee ee Ee
ees.
The Senate was consistent in its characterization of its version
of the legislation, noting that the standards defined therein were
to “evidence the lawfulness of interstate operations of a carrier”,
by registration of ICC certificates, proof of insurance and
designation of agents for service of process. S Rep No. 387, 89th
Cong., Sess. 4-5 (1965) at 4-5.
' It is readily apparent that the need for registration and
identification requirements to be uniform was to assist the federal
and state governments in addressing the problem of
uncertificated, illegal interstate operators, not to eliminate fee-
funded state regulatory programs.
B. The State court precedents relied upon by Petitioners do
not support the conclusion that 49 USC 11506 preempts
MCL 478.2(2).
Petitioners cite State Ex Rel Sammons Trucking, Inc v
Boedecker, 158 Mont 397; 492 P2d 9919 (1972) as support for
the following ition:
Congress has pre-empted the field of state regulation and
identification of interstate motor vehicles using Montana
highways. (Pet. 18).
This quotation, however, is wholly inconsistent with the well-
established principle that Congress has not preempted the field of
state regulation of interstate motor vehicles. See, Roadway
Express Inc v State Treasurer, 120 Ill App 3d 133; 458 NE2d 66
_ -
(1983). In Roadway, the court held that Congress, in choosing to
regulate transportation through the Interstate Commerce Act, did
not intend to preempt the field of regulation. 458 NE2d at 68.
Sammons involved a challenge to certain Montana identification,
registration and licensing procedures for motor vehicles. It was
argued that these Montana procedures imposed greater and
conflicting requirements than the SSRS its regulations that
limited state registration fees to $5.00 per vehicle [since increased
to $10.00]. Yet, Sammons did not involve any discussion of a
regulatory fee. The issue addressed there related solely to the
state’s registration fee, which Montana had failed to reduce from
$10.00 to $5.00 as required by the new federal regulation. In
Sammons, the Court held, as to the registration fee, that the
Montana Commission was bound by the federal limitation on the
amount of the registration/fee that could be charged. The ruling
is not applicable to this appeal because Sammons in no way
addressed the question of a state’s power, as then expressly
recognized by ICC regulations, to charge per vehicle regulatory
fees in addition to the federally limited registration fee.
Petitioners also cite to State Ex Rel Sammons Trucking, Inc v
Bollinger, 169 Mont 88; 544 P2d 1235 (1976). This case
reviewed the Montana legislature amending its $10.00
registration fee to $5.00, so as to comply with federal law and the
earlier Sammons Trucking case. The amendment also redefined
“motor vehicle” to include any trailer, semi-trailer or dolly
attached to a motor vehicle. Each “vehicular unit” became
subject to the $5.00 registration fee. The Montana Supreme
Court found this provision conflicted with the federal motor
carrier regulations that limited the definition of motor vehicle to
vehicles having a mechanical drive unit. The federal definition of
motor vehicle, in conjunction with the federal $5.00 per vehicle
fee maximum, clearly conflicted with the Montana legislation that
- 16-
would have imposed registration fees substantially in excess of
that permitted by the federal regulation.°
Petitioners also cite Roadway Express, Inc v State Treasurer,
supra. Roadway held that the Illinois Commerce Commission
possessed the power to adopt the resolution that imposed the fee
exceeding the federal limit and was not preempted by Congress
from doing so. 458 NE2d at 68. The court observed that the
federal maximum of a $5.00 fee [now $10.00] for issuance of an
identification stamp, according to the federal statute itself:
[S]hall not preclude a state from imposing an additional
fee in a reasonable amount to be paid to a State
commission ... if such additional fee shall be subject to
exclusive use by the State’s commission and used by it
solely for defraying the cost of the regulation of carriers
by highway operating within the borders of such state and
the enforcement of laws pertaining thereto. ... 458 NE2d
at 69 [emphasis added].
The Roadway Express court carefully reviewed the statutes that
defined the purposes for which that state’s Motor Vehicle Fund
could be expended. The Court then found that such purposes
* Petitioners cite Owner-Operator Independent Driver's Ass'n, Inc v Idaho
Public Utilities Comm, 125 Idaho 401; 871 P2d 818 (1994), which involved a
trial court decision that part 1023 of the ICC regulations (49 CFR 1023) could
be interpreted to permit a maximum annual registration fee uf $20.00, instead
of $10.00. The decision turned on the fact that Idaho statutes required the
Idaho Public Utility Commission to charge a $25.00 Idaho registration fee on
all interstate vehicles regardless of where they were license plated, which
clearly exceeded the $10.00 federal maximum registration fee. The facts of
that case are not at all like those presented here, which do not involve anything
like the combining of separate federal maximums that characterized the Idaho
case. Moreover, just like the other cases discussed above, and cited by the
Petitioners, the case never considered whether Idaho was preempted from
charging regulatory fees in addition to registration and/or vehicle identification
fees.
of?
included regulation of commercial relocators/repairs and
maintenance of highways, and that the fund was thus not used
exclusively for the regulation of highway carriers. Consequently,
Illinois did not comply with the federal condition to imposition
of an additional regulatory fee. 458 NE2d at 69, 70. Petitioners’
reliance on Roadway Express, however, misses the mark. That
case not only involved circumstances dissimilar to those at bar,
but does not advance the holding advanced by the Petitioners,
which was specifically rejected by the Court of Appeals. (Pet.
App. 19, n 8).
Further, it should be noted that Roadway Express involved a
state-imposed identification stamp fee that clearly exceeded the
federal maximum. In contrast, the Michigan fees disputed by
Petitioners do not involve identification fees or registration fees.
Such regulatory fees are not addressed in any of Petitioners cited
cases. Moreover, it cannot be too often reiterated that Michigan’s
regulatory fee, under MCL 478.2(2), is not, like its federally-
approved $10.00 registration fee, applied to all interstate vehicles
in Michigan. This regulatory fee is applied only when actual
vehicular “presence” in Michigan is demonstrated, by
commercially license plating the fee paying vehicle in this state.
The Court of Claims recognized Petitioners’ confusion of the
issue by noting that Michigan has complied with the SSRS
through MCL 478.7(4) and that MCL 478.2(2) is unrelated to the
purpose of the SSRS. (Pet. App. 46).
Finally, in affirming the Court of Claims, the Court of
peals stated that the issue turned on whether the interstate fee
is classified as a regulatory fee or a registration fee, since a
regulatory fee is plainly outside the scope of the federal law
discussed (Pet. App. 16). A significant portion of the Petition
fails to acknowledge the distinction between regulatory and
registration fees, which distinction is well recognized in the law.
The extensive safety regulation, insurance monitoring,
certification process and extensive litigation, constitutes real
regulation in furtherance of the non-preempted portions of the
-18-
Michigan Motor Carrier Act and Rules. Such activities are
funded by the regulatory fees at issue here.
C. The issue presented does not warrant this Court’s review.
The Petitioners assert that the issue in this case is important,
but do so based on erroneous, speculative and exaggerated
claims. For example, the Petitioners, without citation,
erroneously claim that the Michigan Court of Appeals approached
this case with an ill-conceived “presumption against federal
preemption” which, according to the Petitioners, colored the
Court’s views. (Pet. 20). To the contrary, the Michigan Court of
Appeals plainly followed the preemption precepts laid down by
this Court. This is demonstrated by reference to Michigan Court
of Appeals opinion itself. (Pet. App. 6- 7).
In its preemption analysis the Michigan Court of Appeals
cites an earlier opinion in Duprey v Huron & E R Co, Inc, 237
Mich 662; 604 NW2d 702 (1999), which in turn references this
Court’s decisions in Rice v Santa Fe Elevator Corp, 321 US 218
(1947). Rice is cited for the proposition that there exists a general
presumption against federal preemption. This statement is clearly
in-line with the statement in Rice, at 230, that “we start with the
assumption that the police powers of the States were not to be
superceded by the Federal Act unless that was the clear and
manifest purpose of Congress.” In any event, the vitality of the
concept of a presumption against federal preemption cannot
seriously be questioned in light of this Court’s decision in New
York v FERC, 535 US 1 (2003). In that case the Federal Energy
Regulatory Commission (FERC) issued an order that required
utilities to unbundle (i.e., separate) transmission costs from
energy costs in its retail sales. New York contended that the
FERC did not have any jurisdiction to issue an order that
regulated retail sales. In determining whether the FERC order
was preemptive this Court addressed New York’s assertion that
there was a presumption against preemption. Jd. at 18. This
Court, however, indicated that since the case involved the
defining of the proper scope of the federal agency’s power such a
presumption against preemption did not apply. Jd. The instant
-19-
case, by contrast, does not involve the defining of a federal
agency’s power because neither action by nor an order of a
federal agency is at issue. Thus, far from being the ill-conceived
opinion the Petitioners claim it to be, the Michigan Court of
Appeals opinion correctly states and follows this Court’s
preemption precepts. Additionally, it should be noted that in
undertaking its analysis of the preemption claims the Michigan
Court of Appeals had the benefit of this Court’s decision in
Yellow Transportation v Michigan, 537 US 36 (2002), that
specifically addressed a preemption claim under the SSRS and
which the Michigan Court of Appeals quotes in its opinion.
Having mischaracterized the Michigan Court of Appeals
opinion as inconsistent with this Court’s holdings regarding
preemption, the Petitioners proceed to claim that the opinion
creates a “loophole.” This argument by Petitioners is supported
only by numerous, speculative and exaggerated claims that have
no support in the record. An examination of these claims
establishes that they are without merit.
The Petitioners’ first claim that the ‘regulatory fee’ approach,
if adopted by other States, poses a significant threat to Congress’s
goal of reducing regulatory burdens imposed on interstate motor
carriers. (Pet. 20). The law and the record, however, contradict
this claim. First, tue intent of Congress in enacting the SSRS was
to eliminate the burdens associated with the multiple state
registration of an interstate carrier’s federal authority, and also to
establish a fee system to minimize the cost of filing a proof of
insurance. 49 USC 11506(c)\(2)(B)iv). Secondly, the
Petitioners overlook the fact that the regulatory fee charged by
MCL 478.2(2) applies only to those interstate motor vehicles that
are base-plated in Michigan. The regulatory fee does not apply to
all interstate motor vehicles as the Petitioners’ claim appears to
suggest. Thus, while Congress did, with the enactment of the
SSRS, preempt a State from charging more than $10 to register
and operate within the borders of that State, it did not
concurrently preempt the State from charging a regulatory fee to
those interstate vehicles that are base-plated in that State.
-2-
Further, the claim that the State regulatory fee charged to an
interstate motor vehicle base-plated in that State will lead to a
quagmire of State regulatory fees clearly overstates the degree of
preemption contained in federal law. Simply put, the SSRS was
not intended, and did not, relieve a motor carrier from paying any
and all State fees related to the registering and plating of motor
carrier vehicles. States may still charge a registration fee, limited
to $10, and may still charge a regulatory fee to motor vehicles
that are base-plated in that State. The States, as the record shows,
have significant regulatory obligations to supervise and regulate
the safety of motor carrier operations. See Affidavit of Thomas
R. Lonergan, 7 16 (Res. App. 10b) and Affidavit of Timothy J.
Yungfer, J 2-12 (Res. App. 30b-32b).
The Petitioners then claim that the validity of a regulatory fee
is based on little more than wordplay. Petitioners argue that,
because the statute does not suggest any particular or special
“regulatory” purpose for the charge, the fee is invalid. The
finding by the Michigan Court of Appeals was that the fee
prescribed by MCL 478.2(2) “could reasonably be classified as a
regulatory fee because it is a fee imposed for the administration
of the MCA, particularly covering costs of enforcing safety
regulations.” Pet. App. 16. This finding was entirely consistent
with the evidence placed on the record. Affidavit of Thomas R.
Lonergan, J 16 (Res. App. 10b) and Affidavit of Captain Timothy
J. Yungfer FJ 2-12 (Res. App. 30b-32b). The Petitioners,
however, criticize the Michigan Court of Appeals arguing that it
based its regulatory fee finding on a broad statement by an MPSC
employee. The point here is that if the Petitioners had contested
that MPSC employee statement, they had ample opportunity to
present contrary evidence to the trial court to support their claim.
The plain fact is that they chose not to do so. The Petitioners
should not be heard now to complain about the findings of the
Michigan Court of Appeals when they failed to present evidence
to the trial court to support their claims. The Petitioners then
state: “(t]he Opinion below invites each of the 39 SSRS states to
increase its $10 fee by any amount . . . will be at the mercy of
revenue seeking state legislators.” (Pet. 22). Again, this is
-— empress ce ~~ ware ~—- = - a al
~ e
nothing more than the Petitioners’ opinion since they point to no
factual basis for this claim. They also continue to ignore the
distinction between vehicles base-plated in Michigan and those
base-plated in other states.
Petitioners next make the assertion “the decision permits state
regulatory commissions to increase state motor carrier costs
without any real, practical justification.” (Pet. 23). Petitioners
make this assertion despite the fact that the Michigan legislature,
not the Michigan Public Service Commission, determines the
regulatory fees to be charged to both intrastate and interstate
carriers. The Petitioners continue by questioning whether
Michigan-plated vehicles have “a greater Michigan ‘presence’
than vehicles plated elsewhere.” (Pet. 23). This is followed
immediately by the sentence, “In fact, just the opposite is likely
true.” (Pet. 23). This sentence clearly illustrates the bind
Petitioners now find themselves in because they waived the
opportunity to present evidence to the trial court to support their
claims. Certiorari should not be granted on unproven factual
claims that Petitioners claim are “likely true.” Again, Petitioners
point to no evidence in the record to support their claim.
Petitioners also offer the hypothetical of a small “mom and pop”
carrier with a Michigan office, but “virtually no Michigan
presence at all.” (Pet. 24). This is an exaggerated example since
this small Michigan carrier apparently provides transportation in
other states and never provides transportation in Michigan.
Again, this hypothetical finds no support in the record. While
Petitioners assert the MCL 478.2(2) fee is “burdensome, and
costly” it notes that a large Michigan based carrier with
significant Michigan operations avoids paying the fee entirely by
transferring its operational records out of state. (Pet. 23). Thus
the Petitioners appear to be asserting either the interests of large
carriers that do not pay the fee or small mom and pop carriers that
do not exist. In any event, the Petition does not present an issue
that warrants this court’s review.
ieee, On Oe 8 oe
-%-
D. Under Michigan Court Rule 2.116(c)(10), summary
disposition is properly granted where a party opposing
such a motion failed to present evidence to support its
claim.
In presenting its case at the state level, the Petitioners failed to
present evidence in support of its claim that the MCL 478.2(2) is
preempted by federal law. As a result, the trial court properly
granted summary disposition to the Respondents pursuant to
Michigan Court Rule (MCR) 2.116(C)(10).°
In the Michigan trial courts, a motion for summary
disposition under MCR 2.116(C)(10) tests whether there is
factual support for a claim and is reviewed de novo by Michigan
courts on appeal. Spiek v Dept of Transportation, 456 Mich 331,
337; 572 NW2d 201 (1998). In Maiden v Rozwood, 461 Mich
109, 119-120; 597 NW2d 817 (1999), the Michigan Supreme
Court addressed the legal standard under which motions brought
pursuant to MCR 2.116(C)(10) are to be decided:
A motion under MCR 2.116(C)(10) tests the factual
sufficiency of the complaint. In evaluating a motion for
summary disposition brought under this subsection, a trial
court considers affidavits, pleadings, depositions,
admissions, and other evidence submitted by the parties,
MCR 2.116(G)(5), in the light most favorable to the party
opposing the motion. Where the proffered evidence fails
to establish a genuine issue regarding any material fact,
the moving party is entitled to judgment as a matter of
law. MCR 2.116(C)(10), (G)(5).
A litigant’s mere pledge to establish an issue of fact at
* MCR 2.116(C)(10) provides:
Except as to the amount of damages, there is no genuine issue as to any
material fact, and the moving party is entitled to judgment or partial
judgment as a matter of law.
23.
trial cannot survive summary disposition under MCR
2.116(C)(10). The court rule plainly requires the adverse
party to set forth specific facts at the time of the motion
showing a genuine issue for trial.
Today we clarify the correct legal standard under MCR
2.116(C)(10) because our Court has inconsistently applied
the standard since the 1985 amendment of the court rules.
The reviewing court should evaluate a motion for
summary disposition under MCR 2.116(C)(10) by
considering the substantively admissible evidence
actually proffered in opposition to the motion. A
reviewing court may not employ a standard citing the
mere possibility that the claim might be supported by
evidence produced at trial. A mere promise is insufficient
under our court rules. [Citations omitted. ]
Thus, even if the Petitioners had stated a prima facie case
when before the trial court, it was also required to show the
existence of a genuine issue of material fact that is based on
something more than mere conjecture. The Petitioners failed to
make this showing. Durant v Stahlin, 375 Mich 628, 638; 135
NW2d 392 (1965); Anderson v Kemper Insurance Co, 128 Mich
App 249, 252-253; 340 NW2d 87 (1983). Therefore, under the
Michigan Court Rules, a party, when challenged, must show that
it has a case on the law and that there is some evidentiary proof of
specific facts to support its allegations. Durant at 638; Remes v
Dobys, 87 Mich App 534, 537-538; 274 NW2d 64 (1978). Ifa
party opposing a MCR 2.1 16(C)(10) motion fails to present such
evidentiary proofs, summary disposition is properly granted.
Smith v Globe Life Ins Co, 460 Mich 446, 455-456 n2; 597
NW2d 28 (1999). Having waived the opportunity to present
evidence to support its claim, Petitioners should neither be
allowed to avoid MCR 2.116(C)(10) nor be heard to complain.
As the Petitioners failed to present any evidence in support of
its claims, the Michigan Court of Appeals correctly concluded
-24-
that the fee in MCL 478.2(7) is not a registration fee and, hence,
is not subject to preemption by 49 USC 11506.
CONCLUSION
The Petition for a Writ of Certiorari should be denied.
Dated: May, 2004
Respectfully submitted
Michael A. Cox
Attorney General
Thomas L. Casey
Solicitor General
Counsel of Record
P. O. Box 30212
525 W. Ottawa Street
Telephone: (517) 373-1124
Henry J. Boynton
Assistant Solicitor General
David A. Voges
Emmanuel B. Odunlami
Assistant Attorney General
Attorneys for Petitioners
TABLE OF CONTENTS
Affidavit of Thomas R. Lonergan in
Westlake, et al v MPSC, et al, Court of
Claims Docket Nos. 95-15628 CM and
Pe nchccaddetusdankenodshetesedsodees
Affidavit of Timothy J. Yungfer in
Westlake, et al v MPSC, et al, Court of
Claims Docket Nos. 95-15628 CM and
PP ahavendeuvke chaccodedtusendcceteeses
Supplemental Affidavit of Timothy J. Yungfer
in Westlake, et al v MPSC, et al, Court of
Claims Docket Nos. 95-15628 CM and
SPS Gb cndesedccccnmsabecesecoeesecesees
-Ib-
STATE OF MICHIGAN
IN THE COURT OF CLAIMS
WESTLAKE TRANSPORTATION,
INC., et al,
Plaintiffs,
v File No. 95-15628 CM
Hon. James R. Giddings
MICHIGAN PUBLIC SERVICE
COMMISSION, et al
Defendants.
/
TROY CAB, INC., et al,
Plaintiffs,
v File No. 94-15631 CM
Hon. James R. Giddings
MICHIGAN PUBLIC SERVICE
COMMISSION, et al
Defendants.
/
Attorneys for Plaintiffs in Attorneys for Intervening
Wesuake Plaintiffs in Westlake
Karl L. Gotting (P 14220) Iris K. Socolofsky-Linder
Catherine A. Jacobs (P32996) (P31673)
Loomis, Ewert, Ederer, Michael S. Ashton (P40474)
Parsley, Davis & Gotting, PC Fraser, Trebilcock, Davis &
232 South Capitol Ave, Suite Foster, P.C.
1000 1000 Michigan National
Lansing, MI 48933-1525 Tower
Telephone: (517) 482-2400 Lansing, Michigan 48933
Telephone: (517) 482-5800
en
Andrew K. Light
James H. Hanson
Lynne D. Lidke
Scopelitis, Garvin, Light &
Hanson, P.C.
1777 Market Tower
Ten West Market Street
Indianapolis, IN 46204
Telephone: (317) 637-1777
Attorneys for Plaintiffs in
Troy Cab
John L. Collins (P 12065)
Robert E. McFarland
(P 17394)
Gary J. McRay (P 17554)
Kathryn M. Niemer (P34234)
FOSTER, SWIFT, COLLINS
& SMITH
32300 Northwestern Highway
Suite 230
Farmington Hills, MI 48334
Telephone: (810) 851-7500
Daniel R. Barney
“Robert Digges, Jr.
Cynthia Tripi
ATA Litigation Center
2200 Mill Road
Alexandria, VA 22314-4677
Telephone: (703) 638-1865
Attorneys for Defendants
Don L. Keskey (P23003)
Henry J. Boynton (P25242)
David M. Gadaleto (P30163)
Tonatzin M. Alfaro Garcia
(P36542) ——
Department of Attorney
General
Public Service Division
6545 Mercantile Way, Suite
15
Lansing, MI 4891!
Telephone: (517) 334-7650
AFFIDAVIT OF THOMAS R. LONERGAN
Thomas R. Lonergan, being first duly sworn, deposes and
says as follows:
1. Affiant is the Director of the Motor Carrier Regulation
Division of the Public Service Commission, Michigan
Department of Commerce, and has held this position for
approximately nine years.
MOTOR CARRIER ACT
-3b-
2. The Motor Carrier Regulation Division (MCRD) is
responsible for assisting the Commission in the administration
of the Michigan Motor Carrier Act, 1933 PA 254, as amended,
MCL 475.1, et seq, the title to which begins as follows:
CAN ACT to. ganmsate aniety upon. and coneerys
the use of public highways of the state; ..
(Emphasis added).
3. The titled purpose of promoting safety upon and
conserving the use of public highways is restated in the
purpose and policy section of the Act, MCL 475.2, which in
pertinent part states as follows:
"It is hereby declared to be the purpose and
policy of the Legislature in enacting this law to
confer upon the Commission the power and
authority and to make it its duty to supervise
and regulate the transportation of property by
motor vehicle for hire upon and over the public
highways of this state in all matters whether
specifically mentioned herein or not, so as to:
(b) protect and conserve the highways and
—r—
4. The motor carrier transportation industry provides a
public service, but also increases the risk of harm to the
traveling public and damage to the public highways. The
transportation by motor vehicle for hire is a commercial
enterprise for profit which utilizes the public highways in
conjunction with the travelling public. Since motor vehicles
for-hire increase the risk of harm to those using the highways
as well as the cost of maintaining those highways, the Motor
Carrier Act requires motor carriers to pay their share of the
costs associated with promoting safety upon and conserving the
-4b-
public highways through regulating motor carriers’ use of the
highways and assessing certain privilege fees and taxes.
5. The title to the Motoi Carrier Act provides for the
collection of fees and taxes from motor carriers to promote the
highway safety and conservation purposes of the Motor Carrier
Aci as follows:
"... To provide for the levy and collection of
certain privilege fees and taxes for such carriers
for such purposes and the disposition of such
fees and taxes; ...". (Emphasis added).
6. The Motor Carrier Act, also provides for the regulation
of price, route and service of motor carriers for-hire. The title
of the act in pertinent part states as follows:
"... to give the Commission jurisdiction and
authority to fix, alter, regulate and determine
rates, fares, charges, classifications, and
practices of common motor carriers for such
purposes; to require filing with the Commission
of rates, fares and charges of contract carriers
and to authorize the Commission to prescribe
minimum rates, fares, and charges, and to
require the observance thereof; to prevent unjust
discrimination; ..."
7. The regulation relating to price, route and service are
also provided for in the purpose and policy section of the act,
MCL 475.2 which in pertinent part states as follows:
"(d) Meet the needs of motor carriers, shippers,
or receivers, and consumers; (e) allow a variety
of quality, price, and service options to meet
changing market demands and the diverse
requirements of the shipping public; (f) allow
-Sb-
the most productive use of equipment and
energy resources; (g) provide the opportunity
for efficient and well-managed motor carriers to
earn adequate profits and attract capital; ... (i)
prevent unjust discrimination; ... (k) provide and
maintain service to small communities and
small shippers; ... (m) promote entrepreneurship
in the motor carrier industry by allowing greater
contract carrier economic and entry flexibility;
The Motor Carrier Act was also designed to stabilize the
industry by limiting entry and regulating rates, routes and
services so as to assure quality transportation services to the
public, and promote safety upon and conservation of the public
highways. Since January 1, 1995 the Motor Carrier Division of
the Michigan Public Service Commission has not enforced any
of the laws or regulations relating to the price, route or service
of a motor carrier.
8. A partial legislative history of Michigan motor carrier
regulation includes the following significant events:
a. 1933 Passage of P.A. 254, Michigan Motor Carrier
Act
b. 1963 Passage of P.A. 181 Motor Carrier Safety Act,
jurisdiction assigned to the Public Service
Commission. No funding provided.
c. 1966 PA 162 amends Motor Carrier Act to repeal
levy of weight-distance tax on motor carriers,
substitutes per vehicle annual fee of $50.00
and application fee of $20.00
d. 1982 PA 354 amends the Motor Carrier Act. Partial
dereguiation, collective ratemaking authorized,
fee increases to improve regulation and
-6b-
enforcement:
application fee $20 to $100
annual decal fee $50 to $100
e. 1982 Executive Order 1982-1 transfers jurisdiction
of Motor Carrier Safety Act and the PSC
enforcement division to the State Police.
Funding continues to be provided from PSC
generated motor carrier fees.
f. 1988 PA 347 requires interstate motor carriers to
register ICC authority and pay $10 per vehicle
fee. To be effective 1/1/90.
g. 1991 Public Law 102-240 "Intermodal Surface
Transportation Efficiency Act of 1991"
mandates state participation in the "Single
State Registration System" to be effective
1/1/94.
h. 1993 PA 352 amends to Motor Carrier Act to further
deregulate; requires PSC to develop a safety
rating system.
i. 1994 Public Law 103-305 "Federal Aviation
Administration Authorization Act of 1994."
Sec 601 preempts certain state and local
authority for economic regulation of motor
carriers.
INTERSTATE VERSUS INTRASTATE COMMERCE
9. Regulation of the motor carrier industry in this nation
has traditionally involved a dual system of federal and state
regulation. The Interstate Commerce Commission regulates
interstate motor carrier transportation while state regulation of
intrastate commerce has been preserved. Pursuant to 49 USC §
10521 (Exhibit A) the general jurisdiction of the Interstate
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Commerce Commission over transportation by motor carriers
is defined, and thus leaves the states to regulate intrastate
operations involving a pickup and delivery of property in the
same state without a prior or subsequent movement through
another state.
10. Historically, the Interstate Commerce Commission has
regulated motor carriers operating in interstate commerce in a
similar fashion to the way the Michigan Public Service
Commission has regulated motor carriers operating in intrastate
commerce. Certificates of authority to conduct operations,
together with tariffs covering rates, routes and services have
been provided by the ICC for interstate operations and the
MPSC for intrastate operations. The Michigan Motor Carrier
Act requires interstate carriers to comply with the Michigan
Motor Carrier Act, except to the extent the Act is inconsistent
with or contravenes federal law. See MCL 476.12, MCL
477.10 and MCL 478.7. The MPSC regulates the for-hire
transportation of property by motor carriers which move
wholly within the state (intrastate). If the property to be
transported is to be moved by the owner of the property in
motor vehicles owned or leased by the owner of the property,
then the movement is private carriage, not regulated by the
MPSC or the ICC. Otherwise, the for-hire transportation of
property intrastate requires a motor carrier to obtain MPSC
operating authority.
11. According to the 1993-1994 NARUC compilation of
transportation regulatory policy (Exhibit B) 45 states and U.S.
Territories have some form of regulation of common carriers.
The vast majority of these states and territories also regulate
insurance (45 states), safety (33 states) as well as the
registration of interstate carriers (37 states). Thirty-nine states
(39) also assess a fee for intrastate registration of motor carrier
operations. Thirty-two (32) states or territories (32) utilize an
identification device for vehicles such as a decal or stamp. A
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MOTOR CARRIER FEE SYSTEM
12. Article 4 of the Michigan Motor Carrier Act, MCL
478.1 through MCL 478.8 provides for the collection of certain
fees referred to in the title of the Act to carry out the Act's
purposes. Of all the motor carrier fees collected,
approximately half go to the Department of State Police for
safety enforcement of the motor carrier industry. The
remainder is used by the MPSC and the Michigan Department
of Commerce for the administration of the Motor Carrier Act
which includes enforcement of safety, financial fitness and
insurance requirements for motor carriers.
13. The intrastate authority application fee at MCL 478.1 is
paid by an applicant for an intrastate MPSC certificate. An
interstate motor carrier would not pay this fee. The fee is $100
for the original application and $50.00 for the annual renewal.
This fee amount has remained the same since 1982. Prior to
the 1982 amendments to the act, the application fee was $20.00
and the renewal fee $10.00. The application process involves
several steps including checking the completeness of the
application, performing a safety review of the applicant,
publishing a notice of the application in the bulletin, and
preparing a file for Commission consideration. In the event of
a protest, a hearing is also scheduled. Prior to January 1, 1995,
oral testimony or written affidavits were also required
regarding the public need for the services. The renewal
requires a vehicle update and proof of insurance along with
payment of fees. The intrastate application fees and renewal
fees generate approximately $200,000 per year in revenue
which is merged with other motor carrier fee revenues and
appropriated to the Public Service Commission, Department of
Commerce and Michigan State Police. Any unexpended
balances are deposited in the Michigan Transportation Fund at
the end of the fiscal year. In fiscal year 1993-94, the PSC
collected $224,000 in PSC application fees.
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14. A motor carrier obtaining intrastate authority must also
determine the vehicles which it will assign to intrastate
transportation. A list of the equipment providing intrastate
services is furnished with the original application or renewal
application. An example of such a listing is attached as
Exhibit E. A carrier also pays the $100 annual fee relating to
his intrastate authority for each vehicle pursuant to MCL
478.2(1). The carrier itself selects which self-propelled power
units and how many units, relate to provision of intrastate
authority and makes the requisite payment relating to said
vehicles. The MPSC Staff does not determine how many units,
or which units, are used for intrastate authority. This is a
matter solely determined by each carrier a good faith basis,
without review by the MPSC Staff. Each carrier makes a
determination concerning what portic7 of their vehicle fleet
should be apportioned or allocable to Michigan intrastate
authority based upon his own operations, business
determinations, and factors which are relevant to his own
business circumstances or situation. Neither the MPSC Staff
nor the MPSC have undertaken any complaint or other
enforcement action relating to second guessing or challenging
the vehicle fees paid by a carrier utilizing each carrier's own
judgment as to the portion of its fleet to be used for intrastate
operations in Michigan based upon its own business
circumstances.
15. The intrastate annual vehicle decal fee found at MCL
478.2(1) is paid after an intrastate motor carrier has obtained an
MPSC motor carrier certificate. Before the carrier commences
operations under its certificate, it must purchase a decal for
each power unit at a fee of $100 each. This decal identifies
that the carrier has paid its fee and is affixed to the door of the
vehicle. A six-month decal is also available after July 1 for
$50.00. Each calendar year the decals must be replaced. A
household goods carrier only pays a $50.00 annual fee. These
fees have remained the same since 1982. Prior to that time the
fee was $50.00 except for household goods carriers which paid
$20.00. Prior to 1966, the Commission collected a
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weight/distance tax rather than a per vehicle fee. This fee,
MCL 478.2(1), is the largest source of revenue for the Public
Service Commission motor carrier regulation functions and
also supports the State Police Motor Carrier Division, which
until 1982 was part of the PSC. These fees support State
Police enforcement of the Motor Carrier Act, Motor Carrier
Safety Act, size and weight limitations, enforcement of the
Vehicle Code and other laws governing commercial motor
vehicles and motor carriers. In calendar year 1994, the PSC
collected approximately $2,905,000 in intrastate vehicle decal
fees.
16. The interstate annual vehicle decal fee found at MCL
478.2(2) is paid by an interstate motor carrier only on vehicles
registered and plated through the Michigan Secretary of State.
The Commission has always interpreted vehicles "registered in
this state” as meaning registered and license plated with the
Secretary of State. An interstate carrier which registers its
vehicles in any other state or province does not pay this fee.
The fee is $100.00 per calendar year per vehicle or $50.00 after
July 1. A decal identical to the intrastate decal is issued and
affixed to the door of the vehicle. This fee has remained the
same since 1982. It was $50.00 from 1966 to 1982. These fees
amounted to approximately $751,000 in 1994. The revenue
from these fees is combined with other motor carrier fee
revenue and appropriated by the Legislature for expenditure by
the PSC and the State Police Motor Carrier Division. These
fees support enforcement of the Motor Carrier Act, Motor
Carrier Safety Act, Michigan Vehicle Code, size and weight
regulation, and other laws governing commercial vehicles and
motor carriers. Since 1966, the fees paid by intrastate PSC
regulated motor carriers and interstate motor carriers
commercially registered in Michigan have been identical. The
fees levied on interstate motor carrier vehicles commercially
registered in other states are covered by MCL 478.7 and are a
maximum of $10.00. For fiscal year 1993-1994 the
Commission collected $2,235,000 pursuant to MCL 478.7(4).
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17. The federal single state system of registration,
| Providing for a $10 fee for registering federal authority in each
state, is established under the federal sphere of regulation of
interstate transportation under the Interstate Commerce Act of
1980 as amended, as the exercise of the federal portion of
jurisdiction under the dual nature of state/federal regulation of
collected by Michigan and most other states relate to intrastate
transportation and the exercise of the states powers relative to
the state portion of the dual federal-state jurisdictional system.
The intrastate fees collected by the state should not be confused
with the single state registration system adopted for the
separate federal system.
18. The annual renewal fee collections (478.1) as well as
the various annual vehicle fees collections (478.2(1), 478.2(2)
and 478.7) for the plaintiffs as well as a sample of large motor
carriers that operate in Michigan for the years 1993, 1994 and
1995 are attached as Exhibit C. This data demonstrates the
diversity of types and amounts of fees paid by the plaintiffs and
that impact the amount of fees. These decisions involve the
location of the principal place of business, the state in which
the carrier chooses to register its vehicles and whether or not
the carrier has obtained an intrastate certificate.
19. The Legislature expected that motor carriers with a
close nexus to Michigan (vehicles operating in intrastate
commerce with MPSC authority or vehicles plated in
Michigan) would pay fees for the administration of the Motor
Carrier Act, the purposes of which are to promote safety,
Michigan motor carrier fees under MCL 478.1 and MCL 478.2
are not paid by motor carriers engaged in interstate commerce
on vehicles plated in another state. The rationale for charging
interstate vehicles plated in Michigan a fee, under MCL
478.2(2), and not charging interstate vehicles plated in another
state is a fee that vehicles which are license plated in Michigan
| -12b-
are based in Michigan, and therefore have a greater utilization
of the highways and services in Michigan than do vehicles
plated in another state. Different states collect various fees and
taxes from motor carriers in different combinations and in
significantly different amounts. See Exhibit B for a chart
fees (including motor carrier fees such as Michigan's decal
fees). Many of these fees apply to both intrastate and interstate
SINGLE STATE REGISTRATION
20. The Single State Registration system, to which the $10
fee applies, relates to filing of interstate ICC authority and
proof of insurance with each state for each vehicle operating in
interstate commerce to enable states to enforce ICC
requirements. It does not relate to the state registration
which may be applicable to intrastate operations or those
interstate vehicles or operations having a close nexus to the
state. The ICC has none of its own police officers or
enforcement people to enforce ICC requisite requirements and
relies on the states for this purpose under the SSRS system.
Congress allows the states to require motor carriers operating
with interstate authority to register their ICC certificate or
permit before commencing operations within that state and has
specifically found that such registration is not an unreasonable
burden on transportation when registration is completed under
the standards of the single-state-registration system found at 49
USC § 11506. Under the single state registration system, an
interstate motor carrier is required to register annually with
only one state by filing its ICC certificate or permit and proof
of insurance along with the payment of a fee for each
participating state not to exceed $10.00 per vehicle which the
motor carrier admits will operate in each participating state.
21. Michigan is a participating state in the single state
registration system and pursuant to the Michigan Motor Carrier
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Act, MCL 478.7(4), levies an annual fee of $10.00 or less on
each interstate motor carrier vehicle operated in Michigan. In
the fiscal year 1993 to 1994 Michigan collected approximately
$2,223,000 in interstate registration fees under MCL 478.7(4)
and consistent with the requirements of MCL 478.7(5),
$766,000 of those fees collected were deposited with the Truck
Safety Fund and utilized for safety education programs for
motor carriers and Michigan State Police safety and
enforcement purposes.
REVENUE COLLECTED FROM MOTOR CARRIER FEES
22. The following chart shows revenue collected and
expenses for fiscal year 1993-1994 for motor carrier fee under
the Michigan Motor Carrier Act, 1933 PA 254:
-14b- -15b-
CHART OF REVENUES AND EXPENDITURES a. A MPSC certificate is issued to a motor
Fiscal Y ear 93/94 carrier only after a safety review
consistent with requirements set by the
qm Commission in Order T-1281.
Revenue Amounts Appropnation Amounts
Total b. A certificate may be revoked or
ptrastate Authority Devseee Public Service suspended for unsafe operations.
“<. Motor Commission & c. Regulatory compliance with state and
$224,006 Carrier Dept of Commerce federal vehicle and driver regulations
Fees 730,000 through the certificate process.
~ Sie ERS 5,241 d. Regulatory compliance with insurance
om $3,656,000 : Michigan State Police coverage requirements.
ear $2,571,00
24. Prior to 1982, the Michigan Public Service Commission
MCL 478.6 State Transportation utilized its own enforcement division to carry out safety
Fund inspections, traffic enforcement, safety audits and the operation
180,000 of scale sites for motor carriers. In 1982, Governor Milliken
transferred by Executive Order 1982-1, the PSC Enforcement
Truck Safety Division to the Department of State Police along with the
Commission responsibility and funding for enforcement of the Motor
= MCL 478.7(S) Carrier Safety Act, 1963 PA 181. Under the Motor Carrier
f $766,000) Safety Act, the Motor Carrier Division of the State Police is
responsible for the following safety functions:
$2,223,00
4 Vehicle requirements such as brakes,
load securement, inspections, etc. are
specified and enforced.
As is evident from the above chart, the total amount of : ; ;
regulatory fees collected under the Motor Carrier Act are >. —-_- Driver requirements such as hours of
closely matched to the State of Michigan's cost of regulating service, licensing, medical certificates,
motor carriers to carry out the purpose of the Act. etc. are specified and enforced.
c. Drug and alcohol testing requirements
APPROPRIATIONS FOR SAFETY are enforced.
23. The safety purposes of the Michigan Motor Carrier Act, d. ae inspections and audits are
1933 PA 254, are carried out in part by the PSC which
administers the following safety functions:
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e. Regulates movement of hazardous
materials.
25. Approximately half of all Michigan motor carriers fees
collected are appropriated by the Legislature to the Motor
Carrier Division of the Department of State Police for safety
enforcement and inspections of motor carrier vehicles. Title
XII of Public Law 99-570, 49 CFR Federal Motor Carrier
Safety Regulations are administered by the Federal Highway
Administration of the U.S. Department of Transportation.
Through agreements with the State of Michigan, the Motor
Carrier Division of the State "olice also enforces the federal
requirements which in pertinent part include the following:
a Requires uniform commercial drivers
license.
b. Specifies vehicle and driver
requirements.
c. Establishes drug and alcohol testing
26. On August 23, 1994, President Clinton signed into law
the Federal Aviation Administration Authorization Act of 1994
(FAAA Act), amending Title 49 USC § 11501, which took
effect on January 1, 1995.
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27. On September 8, 1994, the Michigar Public Service
Commission, in direct response to the enact-nent of 49 USC §
11501(h) issued an “Order and Notice of Hearing Commencing
Contested Case Proceedings for An Order Regarding Federal
Preemption of State Motor Carrier Regulation", to examine the
effect of 49 USC § 11501(h) on the Michigan Motor Carrier
Act and Rules. The proceeding was conducted as a contested
case pursuant to the Administrative Procedures Act of 1969
and the Commission's Rules of Practice and Procedure.
28. In its January 11, 1995 Opinion and Order the
authority to revise the Michigan Motor Carrier Act:
. This order is therefore intended solely to
provide guidance regarding how the
Commission expects intrastate motor carrier
regulation to operate in Michigan after January
1, 1995. Thus, interested parties retain the right
to request a different interpretation from the
regarding the effect of Section 601 on the issues
addressed below.
29. The Commission found in its January 11, 1995 Opinion
and Order that section 601(h) of the FAAA Act, 49 USC §
11501(h) specifically provides for the preemption of state
economic regulation of motor carriers engaged in the intrastate
transportation of property to the extent such regulation is
related to a price, route, or service.
30. The Commission found in its January 11, 1995 Opinion
and Order that Congress limited the preemptive reach of
Section 601 under the heading "Matters not Covered" found at
49 USC § 1150i(h\(2). There Congress specifically stated as
follows:
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(1)—(a) Shall not restrict the safety regulatory
authority of a state with respect to motor
vehicles, the authority of the state to impose
highway route controls or limitations based on
the size or weight of the motor vehicle or the
hazardous nature of the cargo, or the authority
of a state to regulate motor carriers with regard
to minimal amount: of financial responsibility
relating to insurancz requirements and self
insurance authorization; and (b) does not apply
to the transportation of household goods.
31. Pursuant to the Commission's January 11, 1995
Order in MPSC Case T-1273, applications for intrastate
authority have been issued for 1995 on a state-wide basis,
namely, a motor carrier wishing to perform intrastate service in
Michigan makes application for authority for the entire state of
Michigan, and pays the requisite application fee. The —
applicetion then is subject to review for safety, fitness,
insurance requirements, and other matters to ensure that the
carrier may be authorized to perform services in Michigan.
Due to the adoption of Section 601 of the FAAA, effective
January 1, 1995, authority is no longer issued relative to any
specific rate, route, or service, except for household goods
carriers. A copy of the statewide application for intrastate
authority is attached as Exhibit D. The safety review consists
of an analysis of Part II of the Application, Safety Information,
as well as any supplemental data that may be requested;
U.S.D.O.T. records regarding safety ratings; and Michigan
State Police files regarding vehicle inspections, violations
found and citations issued. From those materials a safety
profile is developed in accordance with the Commission's order
in Docket T-1281.
32. Congress also placed beyond the preemptive reach of
Section 601, in an optional format, the continuation of certain
standard state transportation practices with regard to uniform
cargo liability rules, uniform bills of lading, uniform cargo
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\
credit rules and anti-trust immunity for joint line rates or
routes, classifications and mileage guides if compliance with
state law was no more burdensome than compliance with
federal law covering the same subject and if requested by a
carrier.
33. In its January 11, 1995 Opinion and Order, the
Commission noted that the most important issue to be decided
was whether Section 601 preempts the MMCA and rules, either
in their entirety or, with respect to only those regulatory
provisions concerning price, route and service, and concluded
as follows:
Despite some parties’ assertions to the
contrary, the wording of [section 601 stops far
short of precluding state regulation of all aspects
of motor carriage. For example, its heading
reads "Preemption of State Economic
Regulat:on of Motor Carriers." This implies
that, of the range of areas presently covered by
state regulation, economic regulation (rather
than regulation of safety, fitness, insurance, etc.)
was singled out by Congress for at least partial
preemption. Such an implication is further
supported by the "General Rule" set forth in
[s]ection 601(h)(1), which states only that states
"may not enact or enforce a law, regulation, or
other provision . . . related to a price, route, or
service” of any for-hire or private motor carrier.
(Emphasis added.) Issues involving prices,
routes, and services have long been considered
by the motor carrier industry to fall within the
definition of economic regulation.
Furthermore, [section 601 lists several
exceptions to Congress’ preemption of economic
regulation. Foremost among these is the
statement that [s]ection 601:
"{S)hall not restrict the safety regulatory
authority of a State with respect to motor
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vehicles, the authority of a State to
impose highway route controls or
limitations based on the size or weight of
the motor vehicle or the hazardous
nature of the cargo, or the authority of a
State to regulate motor carriers with
regard to minimum amounts of financial
responsibility relating to insurance
requirements and self-insurance
@ <horization." [Section 601(h)(2)(A).]
Next, [s]ection 601 states that its
preemptive effect "does not apply to the
transportation of household goods." [Section
601(h)(2)(B).] Finally, under the headin:2 "State
Standard Transportation Practices," [s]ection
601 indicates that it "shall not affect any
authority of a State . . . to enact or enforce" a
~ law, rule, or regulation related to uniform cargo
liability rules, uniform bills of lading or receipts
for property being transported, uniform cargo
credit rules, or antitrust immunity for joint-line
rates or routes, classifications, and mileage
guides. [Section 601(h)(3)(A).] However, it
further provides that continuing regulatory
authority over these standard transportation
practices (1) will only arise where the law, rule,
or regulation "is no more burdensome" than
compliance with federal laws covering the same
issue and corresponding regulations issued by
either the ICC or the U.S. Secretary of
Transportation, and (2) will only apply to a
carrier "upon request of such carrier." [Section
601(h\(3)(B).) Therefore, the language of
[s]ection 601 reflects that its preemptive effect
was not intended to be all-encompassing.
The legislative history of [s]ection 601
supports a similar conclusion. According to the
-21b-
Conference Report, its passage was not
designed to preempt all state regulation of motor
carriage. Rather, it was intended only to "level
the playing field between air carriers on the one
hand and motor carriers on the other with
respect to economic trucking regulation."
(Conference Report, p. 82.) [Emphasis added. }
Specifically, Congress sought to eliminate the
substantial competitive advantage given to air
carriers like Federal Express Corporation over
traditional motor carriers like UPS as a result of
v Caiifornia Public
Federal Express Corp v
Utilities Comm, 936 F2d 1075 (CA 9, 1991),
cert den ___ US____(1992). The drafters’ intent
to achieve this result while limiting the breadth
of [section 601's preemptive effect cah be
discerned from page 85 of the Conference
Report, where it is noted that:
"New subsection (h)(2) emphasizes that
State authority to regulate safety,
; ial fi i
transportation of household goods,
vehicle size and weight and hazardous
materials routing of motor carriers is
unchanged since State regulation in
those areas is not a price, route or
service and thus is unaffected."
[Emphasis added. } *
The Conference Report goes on to disclose that,
in return for an agreement by the American
Trucking Association (ATA) to withdraw its
opposition to the FAA[A] Act, Congress
endeavored to structure [s]ection 601 in a way
that would "allow regulatory protection to
continue for noneconomic factors, such as
liability rules, antitrust immunity to publish
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documents, insurance, safety, leasing and cargo
credit rules." (Conference Report, p. 88.)
Based on [s]ection 60!'s wording and
legislative history, the Commission concludes
that it preempts only those provisions ot the
[MMCA] and the Rules relating to price, route,
and service. In reaching this conclusion, the
Commission specifically rejects [Appellant]
Central's argument that, because the primary
focus of the [MMCA] has always been on
economic regulation, no basis exists for
continuing state regulation of motor carriage.
The Commission reaches this conclusion for
two reasons. First, [s]ection 601 does not
require that, to avoid preemption, safety
regulation must be the primary focus of any
. Safety concerns occupy at least co-equal status
with the economic regulation found in the
[MMCA]. For example: (1) the first clause of
this title states that it is "[a]n act to promote
safety upon and conserve the use public
~ highways of the state;" (2) MCL 475.2
proclaims, in pertinent part, that "[i]t is hereby
declared to be the purpose and policy of the
legislature in enacting this law to confer upon
the [C]ommission the power to . . . protect the
safety and welfare of the traveling and shipping
public in their use of the highways;" and (3)
MCL 476.5 requires that, to receive a certificate
of authority, a prospective motor carrier must
show that it is fit--which is defined as being
safe, suitable, and financially responsible--and
that its vehicles "may be operated safely upon
the public highways."
Similarly, the Commission does not find
persuasive [Appellant] Central's claim that, by
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using the phrase "motor vehicles" instead of
"motor carriers" in portions of [s]ection
601(h)(2)(A), Congress intended to strip state
regulatory commissions of their power to
address safety issues and to limit the oversight
of these issues to law enforcement agencies. At
the federal level, the definition found at 49 USC
10102(13) shows that the phrase "motor
carriers" refers only to common and contract
motor carriers. In contrast, by reading 49 USC
10102(17) in conjunction with 49 USC
10102(16) and 49 USC 10102(26), it appears
that the phrase "motor vehicles" extendsto _
private motor carriers as well. Congress’ use of
the broader terms thus likely arose from a
recognition that several state commissions
regulate private carriers, in addition to common
and contract carriers, at least with regard to
safety. This fact, when coupled with [section
601's legislative history, supports rejection of
[Appellant] Central's claim.
For all of these reasons, the Commission
finds that [s]ection 601 preempts only those
portions of the [MMCA] and the Rules relating
to price, route, and service. [Pages 20-24]
34. In its January 11, 1995 Opinion and Order, the
Commission found consistent with the Conference Report to
Section 601 that the Commission would continue to issue
certificates of authority to motor carriers operating in intrastate
commerce based upon the carrier's ability to demonstrate
compliance with state law regulating safety, financial fitness
and insurance.
35. In its January 11, 1995 Opinion and Order the
Commission found that neither the language of Section 601 nor
the conference report imply that fees imposed by a state's
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existing regulatory structure might fall within issues related to
price, routes or services, and that continued collection of the
fees under MCL 478.2 was not preempted. The Commission
attached to its January 11, 1995 Opinion and Order, a copy of
the Michigan Motor Carrier Act and Rules showing which
sections of the act and rules were preempted by drawing a line
through the preempted sections.
EFFECT OF PREEMPTION ON MOTOR CARRIER
DIVISION
36. The Motor Carrier Division Staff has used the January
11, 1995 Opinion and Order to guide its activities since
January 11, 1995. Even prior to the Commission orders in
Case No. T-1273, the Staff had taken steps to implement the
federal act. New certificate application forms were developed
and placed into use as of 11/15/94 which deleted all
consideration of routes and services. All rates and tariffs were
determined to be invalid as of 1/1/95 and all rate and tariff
filings after that date were returned. Applications for
certificates of authority continue to be reviewed to determine if
the applicant has a satisfactory safety rating or other evidence
that the carrier could or would operate safely. Insurance
certification continues to be required and continuous coverage
monitored. Household goods carriers continue to be regulated
as to authority, rates and consumer protection. The 1995
certificate and decal renewal process was performed as
required by the statute and the Commission orders in Case No.
T-1273. Further, the 1995 Single State Registration Renewal
process for interstate motor carriers was continued.
37. The Motor Carrier Division works to promote safety
upon the highways and to assure motor carrier fitness and
compliance with existing state laws, regulations and orders of
the Commission. The Safety and Compliance Section of the
Motor Carrier Division works with the Motor Carrier Division
of the Department of State Police to assure safe operations by
motor carriers and ensure compliance with applicable laws.
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The Safety and Compliance Section is required to conduct
review of applications for authority as mandated by the
Commission's January 11, 1995 order implementing safety
rating system, T-1281, which was issued in response to 1993
legislative amendments to the Motor Carrier Act, 1993 PA 352,
MCL 479.41-43; MSA 22.587(1)(-)(3), which required the
Commission to develop and implement a motor carrier safety
rating system by January 1, 1995. Since passage of the FAAA
Act and the resulting elimination of complaints about rates or
services (except for household goods carriers) the Motor
Carrier Division has focused more of its resources on the safety
issues required by 1993 PA 254. In 1994, the MPSC Motor
Carrier Division had 21 positions. After passage of the FAAA
Act in August, new application forms were developed, new
procedures put into effect and participation by Staff in the
Commission's preemption proceeding was required. The Staff
ceased accepting filings related to "rates, routes or services on
or about November 15, 1994 and began to accept applications
for authority renewal based only on safety and fitness for
operating year 1995.
38. Following preemption, the volume of applications for
an original certificate of authority increased dramatically
because of the changed entry requirements. The new safety
rating system required by 1993 PA 352 and made effective
January |, 1995 required Staff to conduct a safety review of all
of the new applicants as well as assuring proper insurance. It
was evident that many of these applicants were unfamiliar with
legal safety requirements such as drug testing and annual
vehicle inspections, some did not even have a commercial
drivers license. Thus, a significant education component was
required in 1995 and the MPSC Staff worked with the
Michigan Trucking Association to provide educational
resources.
39. For the fiscal year ending 9/30/95, the Legislature has
appropriated 2,162,200 to the Public Service Commission from
motor carrier fees collected pursuant to the Motor Carrier Act.
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Of that amount, 1,584,800 was for the Motor Carrier
Regulation Division and the remaining 577,400 for overhead
and support operations of the Commission such as financial
and personnel services and hearing officers. An additional
566,300 was appropriated to the Department of Commerce for
support services such as office rent and data processing
services. This appropriations act was signed in July of 1994
and did not anticipate the passage of the federal preemption
act.
40. The fiscal year 1995-96 budget for the MPSC and the
Department of Commerce reflects significantly less resources
funded by motor carrier fees. In fiscal year 1994-95, the total
motor carrier fees apportioned to the Public Service
Commission and the Department of Commerce was
$2,728,500. For fiscal year 1995-96, the aforementioned
appropriated amount has been reduced to $1,936,000, a
reduction of $791,500.
41. The unavailability of the motor carrier fees to support
these appropriations would result in the elimination of
the specific functions of the MPSC Motor Carrier Regulation
Division and how they are changed by the Federal Act are as
follows:
a. Safety and Compliance: this work unit
consists of three staff who persorm
safety evaluations on applicants for a
MPSC certificate. They also handle
safety or insurance problems. Prior to
1/1/95, they also handled complaints
related to economic regulation. After
the issuance of the Commission order on
1/11/95, T-1281 regarding the motor
carrier safety rating system, the
-27b-
complexity of the safety evaluations
significantly increased. The size of this
unit has not changed as a result of
preemption.
Rates and Tariffs: this work unit
currently consists of one staff person
who handles economic regulation of the
household goods industry and water
of motor carrier rate regulation as
provided by the FAAA Act, 49 USC
11501. Prior to 1/1/95, this unit also
included an auditor. This position was
eliminated due to preemption.
Authorities: this work component of the
Operations Section consists of three staff
persons who process applications for
MPSC certificates. This administrative
applicants on requirements, notices,
legal sufficiency of documents and
preparation of orders and certificates.
Prior to 1/1/95, this work component had
four staff, one staff position has been
eliminated due to preemption by the
FAAA Act.
Revenue Collection and Issuance of
Credentials: The remaining staff
positions of the Operations Section
handle the various fee collections,
-28b-
€. Management: The Motor Carrier
Regulation Division also has a director
and secretary.
REBUTTAL TO TNT HOLLAND'S AFFIDAVIT
44. Affiant has reviewed the intervenor's motion for
summary disposition in this case as well as the affidavit of Mr.
James C Crozier of TNT Holland Motor Express, Inc.
45. Affiant has a general knowledge of TNT Holland's
operations in the State of Michigan based on several years of
regulatory oversight. TNT Holland is a major intrastate motor
carrier which generated over $11.8 million in strictly intrastate
revenue in 1993. TNT Holland is the Sth largest general
commodity motor carrier in terms of intrastate revenue and
increased its intrastate revenue 27% in 1993 over 1992. TNT
Holland operates a network of 7 terminals in the State of
Michigan from which it makes daily pickups and deliveries to
hundreds if not thousands of customers. It also has contracts
with numerous large shippers which involve significant
intrastate business. By its own admission it uses in excess of
1,300 trucks or tractors in intrastate commerce.
46. Mr. Crozier takes the position that TNT Holland's
intrastate operations are incidental to its interstate operations
and therefore the intrastate vehicle fee imposed by 478.2(1) is a
burden on interstate commerce rather than intrastate commerce.
The scope of operation described above demonstrates the
contrary.
47. TNT Holland is a well managed, efficient and
profi.able motor carrier. Management decides which vehicles
are to be used for intrastate operations based on the judgement
that they will generate intrastate revenue. Those vehicles not
used in Michigan intrastate commerce are not subject to the
$100 vehicle fee.
48. Mr. Crozier states that TNT Holland engages in
intrastate commerce in 17 states. Many of those states
continue to regulate the intrastate operation of motor carriers
and collect a certificate application fee, a renewal fee and an
annual vehicle fee just like Michigan does. (See Exhibit B).
49. Throughout the arguments of plaintiffs is the
underlying premise that the 478.2(1) fee is an "interstate" fee
and therefore a burden on interstate commerce. It is an
intrastate fee. Interstate motor carriers pay vehicle specific
fees pursuant to MCL 478.2(2) or 478.7 of the Motor Carrier
Act. TNT Holland pays the intrastate vehicle fee, 478.2(1) for
intrastate operations which generate revenues, and utilize state
highways and police protection. If plaintiffs’ arguments were
paying state fees or taxes for intrastate operations. 478.2(1) is
fair because all vehicles used in intrastate commerce pay the
same fee in exchange for police protection and use of state
highways.
50. Intervenors argue that a fee which affects interstate
commerce must be apportioned or otherwise factored on a
mileage basis or exposure criteria. The argument is fallacious.
The Single State Registration Program (federally authorized),
is based on a flat fee of $10.00 or less per vehicle. The
Michigan vehicle registration fee to obtain license plates is
based on vehicle weight. The so-called “flat fees” are
administratively simple and efficient. The American Trucking
Association for years has fought against distance taxes as being
too inefficient and difficult to administer.
51. If every state in the Union adopted MCL 478.2(1) there
could be no multiplicity of fees because the fees relate only to
Michigan intrastate authority.
Further, affiant sayeth not.
Thomas R. Lonergan
Subscribed and sworn to before me
this 14th day of September, _1995.
Carol Ann Dane, Notary Public
Eaton County, Michigan
My Commission Expires: 05/05/96
-31b-
STATE OF MICHIGAN
IN THE COURT OF CLAIMS
WESTLAKE TRANSPORTATION,
INC., et al,
Plaintiffs,
Vv File No. 95-i5628 CM
Hon. James R. Giddings
MICHIGAN PUBLIC SERVICE
COMMISSION, et al
Defendants.
TROY CAB, INC., et al,
Plaintiffs,
Vv File No. 94-15631 CM
Hon. James R. Giddings
MICHIGAN PUBLIC SERVICE
COMMISSION, et al
Defendants.
/
Attorneys for Plaintiffs in Attorneys for Intervening
Westlake Plaintiffs in Westlake
Karl L. Gotting (P14220) —_ésIris K. Socolofsky-Linder
Catherine A. Jacobs (P32996) (P31673)
Loomis, Ewert, Ederer, Michael S. Ashton (P40474)
Parsley, Davis & Gotting,PC Fraser, Trebilcock, Davis &
232 South Capitol Ave, Suite Foster, P.C.
1000 1000 Michigan Nationai
Lansing, MI 48933-1525 Tower
Telephone: (517) 482-2400 Lansing, Michigan 48933
Telephone: (517) 482-5800
-32b-
Andrew K. Light Daniel R. Barney
James H. Hanson Robert Digges, Jr.
Lynne D. Lidke Cynthia Tripi
Scopelitis, Garvin, Light & ATA Litigation Center
Hanson, P.C. 2200 ‘viv’! Road
1777 Market Tower Alexendna, VA 22314-4677
Ten West Market Street Telephone: (703) 638-1865
Indianapolis, IN 46204
Telephone: (317) 637-1777
Attomeys for Plaintiffs in
Troy Cab
John L. Collins (P 12065)
Robert E. McFarland
(P17394)
Gary J. McRay (P17554)
Kathryn M. Niemer (P34234)
FOSTER, SWIFT, COLLINS
& SMITH
32300 Northwestern Highway
Suite 230
Farmington Hills, MI 48334
Telephone: (810) 851-7500
Attorneys for Defendants
Don L. Keskey (P23003)
Henry J. Boynton (P25242)
David M. Gadaleto (P30163)
Tonatzin M. Alfaro Garcia
(P36542)
Department of Attorney
General
Public Service Division
6545 Mercantile Way, Suite
15
Lansing, MI 48911
Telephone: (517) 334-7650
AFFIDAVIT OF TIMOTHY J. YUNGFER
Captain Timothy J. Yungfer, being first duly sworn,
deposes and says as follows:
1. Affiant is a Capiain, Commanding Officer of the Motor
Carrier Division of the Department of State Police, located at
300 N. Clippert, Lansing, Michigan 48913.
2. The Motor Carrier Division, Department of State
Police, is responsible for promoting safety upon the highways
through enforcement of state and federal laws relating to
commercial vehicles and their use of the highways, including
-33b-
the provisions of the Motor Carrier Act (Act No. 254 of the
Public Acts of 1933), the Motor Carrier Safety Act (Act No.
181 of the Public Acts of 1963), the Michigan Vehicle Code
(Act No. 300 of the Public Acts of 1949) and the Fire
Prevention Act (Act No. 207 of the Public Acts of 1941).
3. The Motor Carrier Division of the Department of State
Police employs approximately 165 inspection and enforcement
officers and 13 clerical personnel to carry out the various
functions and duties of the Motor Carrier Division throughout
the State of Michigan.
4. Approximately 40 of the uniformed enforcement
officers are assigned to road patrol duties at state police posts
throughout the state, and 68 uniformed officers are assigned to
individual scale sites.
5. The uniformed officers have full enforcement authority
to enforce all of the general laws of the state as they pertain to
commercial vehicles.
6. There exists in the Motor Carrier Division four
specialized groups which carry out specific functions
promoting safety upon the highways through enforcement of
laws relating to commercial vehicles and their operations.
7. The first specialized group is the Investigative Section
made up of three uniform officers and a supervisory sergeant.
The investigative section is responsible for reviewing
complaints processed through the Michigan Public Service
Commission. The primary focus of the Investigative Section as
of May 1995 has been to conduct safety compliance review of
motor carriers at their terminals or corporate offices within the
state. A safety compliance review may include an on-site
inspection of the motor carrier’s log books and files to
determine if applicable motor carrier safety regulations are
being followed. The investigative section is also responsible
-34b-
for on-site safety inspections of the motor carrier’s vehicles at
the terminal.
8. The second specialized group is the Hazardous
Materials Section comprised of 11 uniformed enforcement
officers and a sergeant supervisor. This section is responsible
the enforcement of safety regulations related to the
transportation of hazardous materials.
9. The third specialized group is the Management Audit
Section. This section is comprised of three uniformed officers
and a supervisory sergeant. The Management Audit Section is
primarily responsible for conducting safety audits known as
compliance reviews on interstate and intrastate motor carriers
utilizing the United States Department of Transportation safety
rating system.
10. The fourth specialized section is the Bus Inspection
Section, comprised of twelve inspectors and uniformed
enforcement officers supervised by a sergeant. This section is
responsible for ensuring that all school buses meet safety and
equipment standards required by state law.
11. In addition to the four specialized groups, the
enforcement officers assigned to road patrol throughout the
state conduct safety inspections of commercial vehicles
stopped on the highways. Road patrol officers are also
responsible for the enforcement of the criminal laws and
general regulations pertaining to the operation of commercial
vehicles on the highway, including the enforcement of moving
violations and size and weight laws.
12. Enforcement officers assigned to scale facilities
throughout the state to promote safety upon the highways and
protect highway infrastructure by enforcing size and weight
laws, conducting driver and vehicle safety inspections of
commercial vehicles, and inspecting for proof of registration,
-35b-
operating authority, proof of insurance, and documentation that
taxes and fees have been paid.
13. During the 1993/1994 fiscal year, the Motor Carrier
Division received and appropriation of approximately $14
million, allocated in the following manner.
a. $2,553,700 from Motor Carrier Fees collected
under the provision of the Motor Carrier Act.
b. $944,100 from the Michigan Truck Safety
Commission. ,
Cc. $5,944,000 from the State Trunkline Fund.
d. $2,553,700 from the federal Motor Carrier
Safety Assistance Program. States receiving
funds under this program are required to
contribute 20% of the funds received for the
grant. Motor Carrier Fees are used, in part, as
the state match.
e. $749,100 from the state general fund for school
bus inspections.
f. $368,900 from hazardous materials inspection
fees.
14. The Department of State Police has received funding
from the assessment of fees collected under the provision of
The Motor Carrier Act (Act No. 254 of the Public Acts of
1933), for the enforcement of the provisions of The Motor
Carrier Act and the enforcement of other safety laws and
regulations pertaining to the operation of commercial vehicles,
since the transfer of the motor carrier enforcement function to
the Department of State Police from the Michigan Public
Service Commission by Executive Order in 1982.
-36b-
15. Since the 1991/92 fiscal year, the Motor Carrier
Division of the Department of State Police has received and
expended Motor Carrier Fees in accordance with the chart
identified as attachment “B”.
16. The unavailability of the approximate $2.6 million from
motor carrier fees and the subsequent reduction in state
matching funds for the motor carrier safety assistance program
would result in the elimination of 45 uniform enforcement
officer positions (not including the reduction in officers to pay
for unemployment benefits) assigned to road patrol and weigh
station operations. This represents an approximate one-third
reduction in resources utilized to promote safety upon and
conserve the use of state highways.
17. Since January 1, 1995, the Motor Carrier Division of
the Department of State Police has been in compliance with the
Federal Aviation Administration Authorization Act which
prohibits states from enforcing any laws or regulations related
to the price, route or services of a motor carrier.
Further affiant sayeth not.
Captain Timothy J. Yungfer
Subscribed and sworn to before me
this 14" day of September, 1995.
Carol Ann Dane, Notary Public
Eaton County, Michigan
-37b-
STATE OF MICHIGAN
IN THE COURT OF CLAIMS
WESTLAKE TRANSPORTATION,
INC., et al,
Plaintiffs,
Vv File No. 95-15628 CM
Hon. James R. Giddings
MICHIGAN PUBLIC SERVICE
COMMISSION, et al
Defendants.
TROY CAB, INC.., et al,
Plaintiffs,
Vv File No. 94-15631 CM
Hon. James R. Giddings
MICHIGAN PUBLIC SERVICE
COMMISSION, et al
Defendants.
/
Attorneys for Plaintiffs in Attorneys for Intervening
Westlake Plaintiffs in Westlake
Karl L. Gotting (P 14220) Iris K. Socolofsky-Linder
Catherine A. Jacobs (P32996) (P31673)
Loomis, Ewert, Ederer, Michael S. Ashton (P40474)
Parsley, Davis & Gotting,PC Fraser, Trebilcock, Davis &
232 South Capitol Ave, Suite Foster, P.C.
1000 1000 Michigan National
Lansing, MI 48933-1525 Tower
Telephone: (517) 482-2400 Lansing, Michigan 48933
Telephone: (517) 482-5800
My Commission Expires: 05/05/96
-38b-
Andrew K. Light
James H. Hanson
Lynne D. Lidke
Scopelitis, Garvin, Light &
Hanson, P.C.
1777 Market Tower
Ten West Market Street
Indianapolis, IN 46204
Telephone: (317) 637-1777
Attorneys for Plaintiffs in
Troy Cab
John L. Collins (P 12065)
Robert E. McFarland
(P17394)
Gary J. McRay (P!7554)
Kathryn M. Niemer (P34234)
FOSTER, SWIFT, COLLINS
& SMITH
32300 Northwestern Highway
Suite 230
Farmington Hills, MI 48334
Telephone: (810) 851-7500
Attorneys for Plaintiffs in
Westlake
Karl L. Gotting (P 14220)
Catherine A. Jacobs (P32996)
Loomis, Ewert, Ederer,
Parsley,
Davis & Gotting, P.C.
232 South Capitol Ave, Suite
1000
Lansing, MI 48933-1525
Telephone: (517) 482-2400
Daniel R. Barney
Robert Digges, Jr.
Cynthia Tripi
ATA Litigation Center
2200 Mill Road
Alexandria, VA 22314-4677
Telephone: (703) 638-1865
Attorneys for Defendants
Don L. Keskey (P23003)
Henry J. Boynton (P25242)
David M. Gadaleto (P30163)
Tonatzin M. Alfaro Garcia
(P36542)
Department of Attorney
General
Public Service Division
6545 Mercantile Way, Suite
15
Lansing, MI 48911
Telephone: (517) 334-7650
Attorneys for Intervening
Plaintiffs in Westlake
Iris K. Socolofsky-Linder
(P31673)
Michael S. Ashton (P40474)
Fraser, Trebilcock, Davis &
Foster, P.C.
1000 Michigan National
Tower
Lansing, Michigan 48973
Telephone: (517) 482-5800
Andrew K. Light
James H. Hanson
Lynne D. Lidke
Scopelitis, Garvin, Light &
Hanson, PC
1777 Market Tower
Ten West Market Street
IN 46204
Indianapolis,
Telephone: (317) 637-1777
Attorneys for Plaintiffs in
Troy Cab
John L. Collins (P 12065)
Robert E. McFarland
(P17394)
Gary J. McRay (P 17554)
Kathryn M. Niemer (P34234)
FOSTER, SWIFT, COLLINS
& SMITH
32300 Northwestern
Highway, Suite 230
Hills, MI 48334
Farmington
Telephone: (810) 851-7500
Daniel R. Barney
Robert Digges, Jr.
Cynthia Tripi
ATA Litigation Center
2200 Mill Road
Alexandria, VA 22314-4677
Telephone: (703) 638-1865
Attorneys for Defendants
Don L. Keskey (P23003)
Henry J. Boynton (P25242)
David M. Gadaleto (P30163)
Tonatzin M. Alfaro Garcia
(P36542)
Department of Attorney
General
Public Service Divisi
6545 Mercantile Way, Suite
15
Lansing, MI 48911
Telephone: (517) 334-7650
SUPPLEMENTAL AFFIDAVIT OF TIMOTHY J.
YUNGFER
Timothy J. Yungfer, being first duly sworn, deposes and
says as follows:
1. Affiant filed a previous Affidavit signed September 14,
1995, in the above captioned matter which inadvertently
omitted that the statements were made on personal knowledge,
and that if sworn as a witness, Affiant can testify competently
to the facts stated in the Affidavit.
-40b-
2. Also omitted from my original Affidavit signed
September 14, 1995 was Attachment “B” referenced in
paragraph 15 which shows appropriations received and
expended by the Motor Carrier Division of the Department of
State Police since 1991-1992 fiscal year. Attachment “B” is
included with this Supplemental Affidavit.
3. Affiant has reviewed the contents of the Affidavit
signed on September 14, 1995, and states affirmatively that the
contents of the Affidavit are made on Affiant’s personal
knowledge, and that if sworn as a witness, A ffiant can testify
competently to the facts stated in the Affidavit.
Further, Affiant sayeth not.
Timothy J. Yungfer
Subscribed and sworn to before me
this 20" day of September, 1995.
Carol Ann Dane, Notary Public
Eaton County, Michigan
My Commission Expires: 05/05/96
-4\b-
Prepared by Paul Walters 9/19/95
Prorated Expenses*
Fiscal Motor General Safety Motor
Year | Carrier Fees | Enforcement | Inspections | Carrier Fees
1991/92 | 2,484,100 | 2,252.641 149,840 81,619
1992/93 | 2,484,100 | 2,323.966 | 143,234 16,900
1993/94 | 2,553,700 | 2,158,607 146,535 250,553
1994/95 | 2,571,400 | 2,332,703 144,864 93,833
1995/96 | 2,664,100
*Fiscal Year 1994/95 are projected through year end.
Expenses are prorated to percentage of funding from Motor
Carrier Fees attributable to the General Enforcement and
Safety Inspection Programs
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.