Petition for Writ of Certiorari — Tri-State Coach Lines, Inc. v. Metropolitan Pier & Exposition Authority

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>\ ~ Supreme Court, U.S.

@& FILED

001240 FeB 2 - 2000

No.00- | OPRCE Gr oH Ginx

IN THE

Supreme Court of the United States

TRI-STATE COACH LINES, INC., on behalf of itself and others

similarly situated, SAM VAN GALDER, INC., on behalf of itself

and others similarly situated, ADVANTAGE LIMOUSINE, INC.,

on behalf of itself and others similarly situated,

Petitioners,

METROPOLITAN PIER AND EXPOSITION AUTHORITY,

a body politic and municipal corporation,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

APPELLATE Court OF ILLINOIS, First DistRICT

PETITION FOR A WRIT OF CERTIORARI

JAMES GEIS MICHAEL A. POLLARD

JAMES Geis LAW OFFICE Counsel of Record

5647 South Drexel Avenue BAKER & MCKENZIE

Chicago, Illinois 60637 One Prudential Plaza

(773) 667-9303 130 East Randolph Drive

Chicago, Illinois 60601

(312) 861-2786

ALLAN C. ZUCKERMAN

Law OFFICES OF

ALLAN C. ZUCKERMAN

203 North LaSalle Street

Chicago, Illinois 60601

(312) 236-5432

Attorneys for Petitioners

(Additional Counsel for Petitioners Listed on Inside Cover)

165020 @ Counsel Press LLC

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

Fer

James A. McGurk

140 South Dearborn Street

Chicago, Illinois 60603

(312) 236-8900

SANTIAGO A. DURANGO

1012 Thomberry Court

Ottawa, Illinois 61350

(815) 434-5531

QUESTION PRESENTED

Whether section 14505(2) of the ICC Termination Act

of 1995 (ICCTA), 49 U.S.C. § 14505(2), which expressly

forbids a State or political subdivision thereof from collecting

or levying a tax, fee, head charge, or other charge on the

transportation of a passenger traveling in interstate commerce

by motor carrier, prohibits enforcement of a local Airport

Departure Tax Ordinance against motor carriers who provide

for-hire ground transportation both to destinations across

state lines, and to destinations within a single state when

transporting passengers who have prearranged their ground

transportation?

STATEMENT PURSUANT TO RULE 29.6

The parties named in the caption were the parties before

the Appellate Court of Illinois. Pursuant to Rule 29.6 the

following affiliations are disclosed: Tri-State Coach Lines,

Inc. is wholly owned by VecTour, Inc., Sam Van Galder,

Inc. is wholly owned by Coach USA, Inc., and Advantage

Limousine, Inc. has no parent company, and no public

company owns 10% or more of its stock.

ill

TABLE OF CONTENTS

Question Presented ............-2.seeeeeeeees

Statement Pursuant to Rule 29.6 ...............

ca cee eseeesseeeecenses

Talia of Cited Authorities ... 0. ccc cc ccs cccces

Table of Appendices ..............2--0eseee5:

Opinions Below .............----s eee eeeeeeee

Statement of Jurisdiction ..... 2... c cece cecces

Statutory Provisions Involved .............---.

ew cnc ccereseencceens

Reasons for Granting the Writ ...............--

The Appellate Court’s Restrictive

Interpretation Of Section 14505(2)’s

Preemption Language Conflicts With This

Court’s Construction In Aloha Air Lines, Inc.

v. Director Of Taxation Of Hawaii, Of

Virtually Identical Preemption Language

Employed In The Airport Development

Acceleration Act Of 1973. ..............

Page

iil

Contents

Page

Il. The Appellate Court’s Ruling That The

Petitioners’ Ground Transportation Activities

Do Not Constitute The Transportation Of

Passengers “Traveling In Interstate

Commerce” Conflicts With Consistent

Precedents Of State And Federal Courts. .. 19

III. The Appellate Court’s Decision Has Significant

Nationwide Practical Implications. ....... 22

Rn ed aaa wid a Oh ce ee ee 23

TABLE OF CITED AUTHORITIES

Page

Cases:

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

171 F.3d 765 (2d Cir. 1999) ........cceeseee. 18

Airline Car Rental v. Shreveport Airport Authority,

667 F. Supp. 293 (W.D. La. 1996) ........-.-. 21

Airlines Transportation v. Tobin, 198 F.2d 249

(OG Cie. 1950) «0c k stances cecdiencasacane 21

Allegro Services, Ltd. v. Metropolitan Pier and

Exposition Authority, 172 Ill. 2d 243, 665 N.E.2d

1266 (19GB) ooo ccc deescasacssnvaseneseess 7

Aloha Airlines, Inc. v. Director of Taxation of

Hawaii, 464 U.S. 7, 104 S. Ct. 291 (1983) .....

IPPC eT eT Tee ee ee 10, 11, 12, 14

BFP vy. Resolution Trust Corp., 511 U.S. 531, 114

S. Ch. FFBT GUGOO non kn cs cave vesee sean 17

Charger Limousine v. Dade County Board of Tax

Commissioners, 678 F.2d 586 (Sth Cir. 1982) .. 21

Evansville-Vanderburgh Airport Authority v. Delta

Airlines, Inc., 405 U.S. 707, 92 S. Ct. 1349 (1972)

Executive Town and Country Services v. City of

Atlanta, 789 F.2d 1523 (11th Cir. 1986) ....... 20

Cited Authorities

Page

FMC Corp. v. Holliday, 498 U.S. 52, 111 S. Ct. 403

th Pere rrr errr ty Pere 1]

Greyhound Lines v. City of New Orleans, 29 F. Supp.

26 S59 GRAD. EG. TOD a ow eeensk veeveeeda 16, 17

Harris County Wrecker Owners for Equal

Opportunity v. City of Houston, 943 F. Supp. 711

+R A | rr PR 17, 18

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

S12 &. CR. SESE CEPR cc cecwannscusaceseeu 11, 18

Oklahoma Tax Com’'n v. Jefferson Lines, Inc.,

514 U.S. 175, 115 S. Ct. 1331 (1995) ......... 13,14

Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469

U.S. 199, 105 S. Ce. GSC CAFR ce siccnascccas 11

Port of Portland v. Bilic, 757 P.2d 423 (Or. Ct. App.

ISSR) «i ccccéccecstauseneeene ae 21

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

338 (LiGe Cie. 1900). .iictécedeauseeeee 18

Shannon v. United States, 512 U.S. 573, 114 S. Ct.

2419 (1DBS): . oc ccccssvcecucuceeueeeeee 14

Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103

3. CR. SEO CRISES? . ca cccceeacea sae 11

EBD Leek Aen oe lta FeO oe we

vil

Cited Authorities

Page

Southerland v. St. Croix Taxicab Association,

315 F.2d 364 (3d Cir. 1963) ...........-.-4.. 21

Terry v. Metropolitan Pier and Exposition Authority,

271 Ill. App. 3d 446, 648 N.E.2d 1047 (Ill. App.

SO oxccschsccduwivaavagtasscdalestasee 7

Tri-State Coach Lines, Inc. v. Metropolitan Pier and

Exposition Authority, 315 Ill. App. 3d 179, 732

N.E.2d 1137 (Ill. App.), appeal denied, __ Ill. 2d

__, 732 N.E.2d 1137 (2000) ............-.-- passim

United States v. Capital Transit Company, 325 U.S.

387, GS B. Cr. LRT CIDE) 2 cc cceveccnccecess 20

United States v. Ron Pair Enterprises, Inc., 489 U.S.

235, 111 S. Ce. 1138 (19SD) ... cen ecccceees 14,15

United States v. Yellow Cab, 332 U.S. 218, 67 S. Ct.

SERED cb cdcdcantnccuesedussassesess 20

West Virginia University Hospitals, Inc. v. Casey,

499 U.S. 83, 111 B. Ce. SESE CESPED cccccccace 14

Yellow Cab Company of Boca Raton Inc. v. Broward

County, 282 So. 2d 1 (Fla. Dist. Ct. App. 1973)

re eT ere re TT Tee Tee 21

Viil

Cited Authorities

Page

United States Constitution:

Seis MGs ANN: DEE Oo dn clndlae 4 e:0's's eanae'e-s 7

as Rs Mc TEEE Gs 6 6 606d bub os coke ed ae> 7

Statutes:

po ROT TET eT ere errr l

Sr ee a i 0.0 60 06 6 4b 05-445 bpees ada 1]

49 U.S.C. App. § 1301, et seq. ................. 18

OP eas SEE ook dsc anes dsc ne eesdeeea 11, 18

te See 2: er Pree ae 12

SP Ora Oe PE KG a edo wea ke bake eee 10, 12

OP Sas SEO: o6b sake acca shuvewaenaen 2,15

49 U.S.C. § 13102(14) 2.0.00... cece eee ee eee 2,15

Be Sha RP OENE bvacuhustenuy deco w was ma ae

Ue ee he ead eee Caer eeee 6

SF Cas Se PED ck Wikd oc da nepeb ua vaveuwes 17, 18

a er re rar 18

CP UA. FP abs dao cacsiveasenaauss 18

Cited Authorities

Page

TP Urs UE as oa eee kos oo 66a ks eee passim

Uk Fee re passim

Other Authorities:

H.R. Conf. Rep. No. 104 — 422 ............... 13

ay MII es oid ove iow wee weve 7

Illinois Metropolitan Pier and Exposition Authority

Act, 70 ILCS 210/13(f) (West 1994) ..-.... 3,5, 6, 19

MPEA Airport Departure Tax Ordinance, § 1-2 ... 4

MPEA Airport Departure Tax Ordinance, § 1-3... 4,19

S. Rep. No. 104 — 176 (1995) ................. 13

TABLE OF APPENDICES

Appendix A — Opinion Of The Appellate Court Of

Illinois, First District, Third Division Dated June

Pe Sa a ioe ee ee eee

Appendix B — Order Of The Circuit Court Of Cook

County, Illinois, County Department, Law (Tax)

Division Dated August 12,1998 .............

Page

30a

Appendix C — Agreed Order Of The Circuit Court

Of Cook County, Illinois County Department,

Law (Tax) Division Dated November 17, 1997

Teween ke Rae eT eS oe ee a a ee eS eee ee oe a ee ee ee i ee

Appendix D — Order Of The Circuit Court Of Cook

County, County Department, Law Division, Tax

And Miscellaneous Remedies Section Dated May

Meee Relecst a eee ts Saree ea cea dead aes

Appendix E — Order Of The Circuit Court Of Cook

County, County Department, Law Division, Tax

And Miscellaneous Remedies Section Denying

Amended Motion For Preliminary Injunction

SE UN OO i poe eh eek teenie teas

Appendix F — Letter Of The Supreme Court Of

Illinois Denying Petition For Leave To Appeal

Re CN Is ed eo re a bk

35a

38a

48a

Petitioners, Tri-State Coach Lines, Inc., Sam Van

Galder, Inc. and Advantage Limousine, Inc. (collectively

“Petitioners’), on their own behalf and on behalf of the

certified classes they represent, respectfully request that a

writ of certiorari be issued to review the judgment of the

Appellate Court of Illinois, First District.

OPINIONS BELOW

The order of the Circuit Court of Cook County, Illinois

(App. 30a) is not published. The opinion of the Appellate

Court of Illinois, First District (App. 1a) is reported at 315

Ill. App. 3d 179, 732 N.E.2d 1137 (Ill. App. 2000). The

Illinois Supreme Court’s denial of Petitioners’ Petition for

Leave to Appeal (App. 60a) is reported at _—‘Ill.2d__, 732

N.E.2d 1137 (2000).

STATEMENT OF JURISDICTION

The judgment of the Appellate Court of Illinois, First

District, was entered on June 30, 2000. (App. 1a). The Illinois

Supreme Court denied a timely petition for leave to appeal

on October 4, 2000. (App. 60a). On December 21, 2000,

Justice Stevens, in Application No. 00A552, granted the

Petitioners’ application for an extension of time for filing

this petition for writ of certiorari to and including February

2, 2001.

The jurisdiction of this Court is invoked under

28 U.S.C. § 1257(a).

STATUTORY PROVISIONS INVOLVED

Section 14505 of the ICCTA, 49 U.S.C. § 14505,

provides as follows:

A State or political subdivision thereof may not

collect or levy a tax, fee, head charge, or other

charge on —

(1) a passenger traveling in interstate

commerce by motor carrier; ;

(2) the transportation of a passenger

traveling in interstate commerce by

motor carrier;

(3) the sale of passenger transportation

in interstate commerce by motor carrier;

(4) the gross receipts derived from such

transportation.

49 U.S.C. § 13102(12) defines “motor carrier” as

“a person providing motor vehicle transportation for

compensation.”

49 U.S.C. § 13102(14) defines “motor vehicle” as

a vehicle, machine, tractor, trailer, or semitrailer

propelled or drawn by mechanical power and used

on a highway in transportation, or a combination

determined by the Secretary, but does not include

a vehicle, locomotive, or car operated only on a

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rail, or a trolley bus operated by electric power from

a fixed overhead wire, and providing local passenger -

transportation similar to street-railway service.

49 U.S.C. § 13102(19) defines “transportation” as including

the following:

(A) amotor vehicle, vessel, warehouse, wharf, pier,

dock, yard, property, facility, instrumentality, or

equipment of any kind related to the movement of

passengers or property, or both, regardless of

Ownership or an agreement concerning use; and

(B) services related to that movement, including

atranging for, receipt, delivery, elevation, transfer

in transit, refrigeration, icing, ventilation, storage,

handling, packing, unpacking, and interchange of

passengers and property.

The MPEA Airport Departure Tax Ordinance, which levies

the airport departure tax at issue, and which is promulgated

under the auspices of the Illinois Metropolitan Pier and

Exposition Authority Act, 70 ILCS 210/13(f) (West 1994),

provides, in pertinent part, as follows:

There is hereby imposed an occupation tax on all

persons, other than a governmental agency, engaged

in the business of providing ground transportation

to passengers for-hire at the following rates:

(1) Category 1. For each taxi or livery

vehicle departure from a commercial

service airport with passengers for hire:

$2 per departure.

(11) Category 2. Except for departures

falling within Category 3 below, for

each departure from a commercial b

service airport with passengers for hire:

$9 per bus or van with a capacity of 1-

12 passengers; $18 per bus or van with ;

a capacity of 13-24 passengers; and $27

per bus or van with a capacity of over |

24 passengers. :

(111) Category 3. For each departure from

a commercial service airport with

passengers for hire in a bus or van

operated by a person regulated by the

Interstate Commerce Commission or the j

Illinois Commerce Commission, and

operating scheduled service from the

airport, and charging fares on a per

passenger basis: $1 per passenger.

The ultimate incidence and liability for

paying the tax shall be borne by the

operator as defined in this ordinance.

(Ordinance, § 1-3).

15S Mas et aE tint en

“Operator” means a person who is actually engaged in the

business of providing ground transportation to passengers

for hire as an owner, . . . (Ordinance, § 1-2).

The Illinois Metropolitan Pier and Exposition Authority

Act provides, in pertinent part, as follows: :

(f) By ordinance the Authority shall, as soon as

practicable after the effective date of this

amendatory act of 1991, impose an occupation

tax on all persons, other than a governmental agency,

engaged in the business of providing ground

transportation for hire to passengers in the

metropolitan area at a rate of (i) $2 per taxi or livery

vehicle departure with passengers for hire from

commercial service airports in the metropolitan area,

(ii) for each departure with passengers for hire from

a commercial service airport in the metropolitan area

in a bus or van operated by a person other than a

person described in item (111): $9 per bus or van with

a capacity of 1-12 passengers, $18 per bus or van

with a capacity of 13-24 passengers and $27 per bus

or van with a capacity of over 24 passengers, and

(ii1) for each departure with passengers for hire from

a commercial service airport in the metropolitan area

in a bus or van operated by a person regulated by

the Interstate Commerce Commission or Illinois

Commerce Commission, operating scheduled

service for the airport, and charging fares on a per

passenger basis: $1 per passenger for hire in each

bus or van...

70 ILCS 210/13(f) (West 1994).

STATEMENT OF THE CASE

Petitioners provide bus, van, and limousine transportation

to airline passengers and personnel traveling to and from

Chicago’s O’Hare and Midway Airports. The MPEA is a

political subdivision, a body politic, and a municipal

corporation. In 1992, the Illinois General Assembly authorized

an expansion of Chicago’s McCormick Place. “To finance the

expansion, the General Assembly directed MPEA . . . to issue

bonds.” Tri-State Coach Lines, Inc. v. Metropolitan Pier and

Exposition Authority, 315 Ill. App. 3d 179, 181, 732 N.E.2d

1137, 1139 (Ill. App.), appeal denied, _Ill.2d__, 732 N.E.2d

1137 (2000). (App. 1a). To repay the bonds, the General

Assembly authorized the MPEA to impose, inter alia,

“an occupation tax on all persons, other than a governmental

agency, engaged in the business of providing ground

transportation for hire to passengers in the metropolitan area.”

70 ILCS 210/13(f) (West 1994). Pursuant to that authority, the

MPEA enacted the MPEA Airport Departure Tax Ordinance

(“the airport departure tax”’). Effective January 1, 1993, the

airport departure tax was imposed on the Petitioners each time

one of their vehicles left one of the two Chicago commercial

service airports (O’Hare International Airport and Midway

Airport)' with a passenger for-hire, regardless of the destination

and regardless of the arrangement between the petitioners and

the passengers.

Congress enacted ICCTA in 1995, and it became effective

on January 1, 1996. The ICCTA largely transferred the motor

carrier regulatory functions of the Interstate Commerce

Commission to the Department of Transportation and the

Surface Transportation Board. 49 U.S.C. § 13501. Chapter 145

of the ICCTA contains a number of sections addressing

“Federal-State Relations.” Within Chapter 145, section

14505(2) of the ICCTA prohibits a State or political subdivision

thereof from collecting or levying a tax, fee, head charge, or

other charge on the transportation of passengers traveling in

interstate commerce by motor carrier. 49 U.S.C. § 14505(2).

Relying exclusively on that statutory provision, Petitioners filed

a class action complaint in the Circuit Court of Cook County.

1. A “commercial service airport” is an airport “receiving

scheduled passenger service and enplaning more than 100,000

passengers per year.” Under this definition downtown Chicago's

Meigs Field is not a “commercial service airport.”

é. ee ee

Illinois, seeking, inter alia, a court order declaring the airport

departure tax, as applied against them, to be invalid, and

requesting that the court order a permanent injunction

restraining the MPEA from imposing the tax on them.’

The Class A Petitioners are motor carrier operators who

transport airline passengers from Chicago’s commercial

service airports to destinations in Indiana, Iowa, Michigan,

and Wisconsin. The Class B Petitioners are motor carrier

operators who transport airline passengers from Chicago’s

commercial service airports to destinations in Illinois as a

prearranged and continuous part of an interstate air and

surface transportation journey. The members of both classes

maintained that section 14505(2) expressly preempts and

prohibits the imposition of the airport departure tax on their

business, because they transport passengers traveling in

interstate commerce. The MPEA does not dispute that the

2. Prior to the enactment of ICCTA, the airport departure tax

had been unsuccessfully challenged under the equa! protection clause

of the United States Constitution (U.S. Const., amend. XIV), the

interstate commerce clause of the United States Constitution

(U.S. Const., art. 1, § 8) and the uniformity clause of the Illinois

Constitution (Ill. Const., art. I, § 8). Allegro Services, Ltd. v.

Metropolitan Pier and Exposition Authority, 172 Ill. 2d 243, 665

N.E.2d 1246 (1996). See also Terry v. Metropolitan Pier and

Exposition Authority, 271 Ill. App. 3d 446, 648 N.E.2d 1047

(Ill. App. 1995). The Illinois Supreme Court expressly declined in

Allegro Services to address issues concerning the impact of the

ICCTA, which had been enacted after oral argument in that case,

stating that “Section 14505 has no bearing on the constitutional

challenges asserted in the trial court and raised on appeal to this

court. At this late stage in the proceedings, we decline to consider

an entirely new theory of the case that was neither pleaded below

nor briefed or argued before this court.” Jd. at 246 n.1: 665 N.E.2d

at 1246 n.1.

airport departure tax, as imposed on Petitioners and other

class members, constitutes a “tax, fee, head charge, or other

charge” within the meaning of section 14505. Instead, with

respect to the Class A Petitioners, MPEA argues that the

“legislative history [of section 14505] confirms that Congress

intended only to preclude disproportionate state taxes on the

sale of interstate bus tickets.” Tri-State Coach Lines, 315

Ill. App. 3d at 193, 648 N.E.2d at 1148 (App. 21a). With

respect to Class B Petitioners, MPEA argues that section

14505(2) does not prohibit the imposition of the airport

departure tax ordinance, “because any interstate travel

undertaken by the passengers whom Class B transports is

not by ‘motor carrier’ designated in section 14505(2) of the

ICCTA, but by airplane.” Tri-State Coach Lines, 315

Ill. App. 3d at 188, 732 N.E.2d at 1144 (App. 13a).

The Circuit Court certified the classes and ordered the

case to proceed as a class action. (App. 35a). The Petitioners

and the MPEA then filed cross motions for summary

judgment. The Circuit Court granted summary judgment in

favor of the Class A members, ruling that section 14505(2)

expressly preempts the imposition of the airport departure

tax as to the Class A members, because they transport

passengers across state lines (App. 31a). The Circuit Court

further ruled that section 14505(2) did not prohibit imposition

of the airport departure tax on the Class B members, because

they do not transport passengers across state lines, and

because the Class B members’ ground transportation had not

been rendered “interstate” in character by the continuity of

its prearrangement. The Circuit Court granted summary

judgment in favor of the MPEA and against the Class B

members. (App. 31a). Both parties appealed.

————

The Illinois Appellate Court, First District, reversed the

Circuit Court’s ruling as to the Class A members who

transport passengers across state lines. In so ruling, the

Appellate Court held that “Congress, in enacting section

14505, did not intend to preempt the levying of the airport

departure tax here even upon the transportation services

provided by Class A.” 315 Ill. App. 3d at 194, 732 N.E.2d at

1149. (App. 23a). The Appellate Court ruled that “the text,

structure, and history of Section 14505, as well as related

provisions in the ICCTA, indicate no congressional intent

to preempt taxes on motor carrier departures from airports

to homes, hotels, and businesses in communities served by

those airports, even if those communities are located in

another state.” 315 Ill. App. 3d at 198; 732 N.E.2d at 1151.

(App. 29a). The Appellate Court also affirmed the Circuit

Court’s ruling as to the Class B members who transport

passengers with prearranged ground transportation.

The Appellate Court’s principal rationale was that

Congress’ exclusive focus in enacting section

14505 was to ensure that the tickets for interstate

city-to-city bus trips, trips often passing through

multiple states and having minimal contact with

the state of their origin, were not taxed by the

originating state in a manner disproportionate to

the benefits received in that state.

Id. at 192, 732 N.E.2d at 1147 (App. 20a). The Appellate

Court also ruled that section 14505(2) is inapplicable to the

airport departure tax, because the airport departure tax

is imposed not on the transportation of passengers traveling

in interstate commerce, but only upon the departures

of commercial vehicles from O’Hare and Midway.

See footnote 3, infra.

Thereafter, the Illinois Supreme Court declined

discretionary review without comment. This petition follows.

REASONS FOR GRANTING THE WRIT

I. THE APPELLATE COURT’S RESTRICTIVE

INTERPRETATION OF SECTION 14505(2)’S

PREEMPTION LANGUAGE CONFLICTS WITH

THIS COURT’S CONSTRUCTION IN ALOHA

AIR LINES, INC. v. DIRECTOR OF TAXATION

OF HAWAII, OF VIRTUALLY IDENTICAL

PREEMPTION LANGUAGE EMPLOYED IN THE

AIRPORT DEVELOPMENT ACCELERATION ACT

OF 1973.

Section 14505(2) of the ICCTA expressly prohibits

States or their political subdivisions from collecting a tax,

fee, head charge, or other charge on the transportation of

passengers traveling in interstate commerce by motor carrier.

The language Congress employed in section 14505(2) is

virtually identical to language that it had used years earlier

in Section 7(a) of the Airport Development Acceleration Act

of 1973 (ADAA), 49 U.S.C. § 1513(a), which prohibited

States and their political subdivisions from levying or

collecting “a tax, fee, head charge, or other charge, directly

or indirectly, on persons traveling in air commerce or on the

carriage of persons traveling in air commerce or on the sale

of air transportation or on the gross receipts derived

therefrom.” Jd. Significantly, this Court in Aloha Airlines,

Inc. v. Director of Taxation of Hawaii, 464 U.S. 7, 104

S. Ct. 291 (1983), held that by virtue of its “plain language,”

Section 1513(a) of the ADAA expressly preempted the

imposition of state and local taxes on the transportation of

air passengers. /d. at 11, 104 S. Ct. at 294. Although the

direct applicability of this Court’s Aloha Airlines decision

was argued to the Appellate Court, the Appellate Court did

not address this Court’s decision in Aloha Airlines in its

opinion. This Court should grant this petition for the issuance

of a writ of certiorari to ensure that the ICCTA is construed

in a manner that is consistent with, and does not conflict

with, this Court’s precedent.

Preemption “is compelled whether Congress’ command

is explicitly stated in the statute’s language or implicitly

contained in its structure and purpose.” FMC Corp. v.

Holliday, 498 U.S. 52, 56-57, 111 S. Ct. 403 (1990) (internal

quotation marks omitted); Shaw v. Delta Air Lines, Inc., 463

U.S. 85, 103 S. Ct. 2890 (1983). “The question, at bottom,

- is one of statutory intent.” Morales v. Trans World Airlines,

504 U.S. 374, 383, 112 S. Ct. 2031, 2036 (1992). For this

reason, this Court “begin(s) with the language employed by

Congress and the assumption that the ordinary meaning of

that language accurately expresses the legislative purpose.”

Morales, 504 U.S. at 383, 112 S. Ct. at 2036, citing Holliday,

498 U.S. at 57, 111 S. Ct. at 406; Park ‘N Fly, Inc. v. Dollar

Park & Fly, Inc., 469 U.S. 189, 194, 105 S. Ct. 658 (1985).

This is especially true, where, as here, Congress used

virtually identical language to express a preemptive purpose

as it had in other statutes. See, e.g., Morales v. Trans World

Airlines, Inc., 504 U.S. 374, 112 S. Ct. 2031 (1992)

(preemptive language in the Airline Deregulation Act of

1978, 49 U.S.C. § 1305(a)(1), virtually identical to that

contained in the Employee Retirement Income Security Act

of 1974, 29 U.S.C. § 1144(a), is construed as being equally

broadly preemptive).

In Aloha, this Court was called upon to interpret

section 1513(a) of the ADAA, which states, in pertinent part,

as follows:

No State . . . shall levy or collect a tax, fee, head

charge, or other charge, directly or indirectly, on

persons traveling in air commerce or on the

carriage of persons traveling in air commerce or

on the sale of air transportation or on gross

receipts derived therefrom ...

This Court ruled that the foregoing language unambiguously

“proscribes the imposition of state and local taxes on the

gross receipts derived from air transportation or the carriage

of persons in air commerce.” Aloha, 464 U.S. at 14-15, 104

S. Ct. at 295. Accordingly, this Court held that the Hawaii

Supreme Court had erred in looking beyond the plain

language of section 1513 in order to uphold a Hawaii tax on

the gross income of airlines operating within Hawaii. Here,

the Appellate Court has improperly restricted virtuaily

identical statutory language of express preemption in the

same way the Hawaii Supreme Court did — by avoiding the

plain language of a federal statute prohibiting the imposition

of local taxes on an industry affecting interstate commerce.

The two decisions cannot reasonably be reconciled.

The Appellate Court’s ruling that Congress did not mean

“to preempt taxes on motor carrier departures from airports

to homes, hotels, and businesses in communities served

by airports, even if those communities are located in

another state,” Tri-State Coach Lines, Inc., 315 Il. App. 3d

at 197-98, 732 N.E.2d at 1151 (App. 29a), is premised on:

(1) legislative history set forth in the House and Conference

Reports which indicates an intention to override this Court’s

decision in Oklahoma Tax Com’n v. Jefferson Lines, Inc.,

514 U.S. 175, 115 S. Ct. 1331 (1995); and (2) the «act that

some of the plaintiffs’ activities, under the authority of

ICCTA, are exempted from federal regulation by the Surface

Transportation Board, Tri-State Coach Lines, Inc., 315 Ill.

App. 3d at 191-92, 95-96; 732 N.E.2d at 1146-7, 1150-51

(App. 18a-20a; 25a-26a). Neither reason supports the

Appellate Court’s conclusion.

In Jefferson Lines, this Court held that the Commerce

Clause did not prohibit Oklahoma from levying a sales tax

on the full price of a ticket for bus travel from Oklahoma to

another state. The Appellate Court accurately points out that

one of the reasons expressed in the House and Conference

Report for Congressional enactment of § 14505 of

ICCTA was to override this Court’s Jefferson Lines

decision. /d., citing S. Rep. No. 104 — 176, at 48 (1995);

H.R. Conf. Rep. No. 104 — 422, at 220. The above-cited

Senate Report states that “[Section 14505] is intended to

override a recent court decision permitting such a tax.”

The House of Representatives Conference Report provides

that “[section 14505] reverses a recent Supreme Court

decision permitting states [to levy a tax on bus tickets for

interstate travel] and conforms taxation of bus tickets to that

of airline tickets”. On the basis of those references, the

Appellate Court concluded that Congress’ exclusive reason

for enacting section 14505 was “to ensure that the tickets

for interstate city-to-city bus trips ... were not taxed by

the originating state in a manner disproportionate to the

benefits received by that state.” Tri-State Coach Lines, Inc.,

315 Ill. App. 3d at 192, 732 N.E.2d at 1147 (App. 20a).

However, the statement in the House of Representatives

Conference Report that the purpose of section 14505 is also to

conform taxation of bus tickets to that of airline tickets discredits

the Appellate Court’s conclusion. The House Report indicates

overriding Jefferson Lines was not the exclusive reason for’

enacting section 14505. The House Report indicates that

Congress reacted to Jefferson Lines in the exact same manner

that Congress had previously reacted in 1972 when this Court,

in Evansville-Vanderburgh Airport Authority v. Delta Airlines,

Inc., 405 U.S. 707, 92 S. Ct. 1349 (1972), upheld the charges

imposed by state and local governments on passengers traveling

in air commerce. Shortly after the Evansville-Vanderburgh

decision, Congress enacted the air travel exemption contained

in the ADAA, Aloha, 464 U.S. at 9, 104 S. Ct. at 243, using

language virtually identical to section 14505, to expressly

prohibit state or local governments from imposing any tax, fee

or charge on air commerce. In Aloha, this Court interpreted the

ADAA’s air travel exemption in a manner consistent with

Petitioner’s argument here.

The Appellate Court, in contravention of this Court’s

precedents, essentially gave authoritative weight to these

passages of legislative history that are not anchored in the text

of the statute. Compare Shannon v. United States, 512 U.S.

573, 583, 114S. Ct. 2419, 2426 (1994) (“We are not aware of

any case .. . in which we have given authoritative weight to a

single passage of legislative history that is not in any way

anchored in the text of the statute.”). This Court has held that

when a federal statute “contains a phrase that is unambiguous

— that has a clearly accepted meaning in both legislative

practice — we do not permit it to be . . . contracted by the

statements of individual legislators or committees during the

course of the enactment process.” West Virginia University

Hospitals, Inc. v. Casey, 499 U.S. 83, 98-99, 111 S. Ct. 1138,

ae eee oe ee

1147 (1991), citing United States v. Ron Pair Enterprises,

Inc., 489 U.S. 235, 241, 111 S. Ct. 1138, 1147 (1989). To be

sure, the expansive language of section 14505 preempts state

and local taxation of city-to-city bus trips. The language is

more broadly preemptive than that, however. There is, for

example, no limitation in section 14505(2) to travel by bus,

and, as the Appellate Court itself noted, “MPEA does not

argue that the inclusion of taxis and liveries with buses in

Class A was improper.” Tri-State Coach Lines, 315 Ill. App.

3d at 193 n.3, 732 N.E.2d at 1148 n.3 (App. 22a). Section

14505(2) employs the words “motor carrier,” which are

defined in 49 U.S.C. § 13102(12) as “a person providing

motor vehicle transportation for compensation.” “Motor

vehicle,” not surprisingly, is also broadly defined as “a

vehicle, machine . . . drawn by mechanical power and used

on a highway in transportation.” 49 U.S.C. § 13102(14).

“Transportation” is similarly broadly defined as ‘a motor

vehicle. . . of any kind related to the movement of passengers

or property, or both, regardless of ownership or an agreement

concerning use,” and “services related to that movement,

including arranging for, ... delivery ... of passengers and

property.” 49 U.S.C. § 13102(19).

Nor is there a limitation contained in section 14505 to

“city-to-city” trips. Section 14505(2) uses the term “interstate

commerce,” which has not been statutorily defined since

1982, when the definition was removed from the Interstate

Commerce Act. However, as will be demonstrated below,

the term “interstate commerce” has acquired statutory and

common law meaning embracing all of the activities of Class

A and Class B members, including prearranged ground

transportation of interstate passengers.

To be further assured that the Appellate Court’s view is

wrong, this Court need only read all four sub-paragraphs of

§ 14505. Although subparagraphs (3) and (4) do address local

taxation of bus tickets sold for interstate travel by preempting

taxes on the sale of passenger transportation and the gross

receipts from such transportation, paragraphs (1) and (2)

address entirely different activities. If preempting local taxes

on the sale of bus tickets for interstate travel was Congress’

sole intent, then there would be no conceivable explanation

for why Congress added the broad language of paragraphs

(1) and (2) to preempt taxation of passengers and the

transportation of passengers traveling 1n interstate commerce.

The Appellate Court’s second reason, i.e., its reliance

on the breadth of the Surface Transportation Board’s

authority under ICCTA to regulate motor carriers as also

serving as the measure of the breadth of Congress’

' preemptive authority is an argument that has been previously

rejected by two federal courts when other municipalities

employed that argument trying to limit the breadth of

different preemptive sections contained in Chapter 145 of

ICCTA. The United States District Court rejected the same

“jurisdiction graft” argument when the City of New Orleans

attempted to similarly limit the breadth of another Chapter

145 preemption. In Greyhound Lines v. City of New Orleans,

29 F. Supp. 2d 339 (E.D. La. 1998), the City of New Orleans

tried to escape a preemption by arguing that it was

inconsistent with a jurisdictional exception appearing in

Chapter 135 of the Act, the chapter defining the Surface

Transportation Board’s regulatory jurisdiction. The district

court rejected that construction. It emphasized that, as in

this case, Congress did not condition the preemption by

stating that it was subject to jurisdiction under Chapter 135

[the jurisdiction Chapter]. Jd. at 345. The district court held

that the breadth of the preemption under consideration was

not restricted by any of the provisions contained in the

jurisdiction chapter of ICCTA. The district court relied on

BFP vy. Resolution Trust Corp., 511 U.S. 531, 537, 114 S.

Ct. 1757 (1994), holding that “it is generally presumed that

Congress acts intentionally and purposely when it includes

particular language in one section but omits it in another.”

Id. at 345. See also Harris City Wrecker Owners v. City of

Houston, 943 F. Supp. 711 (S.D. Tex. 1996) (holding that

the regulatory exclusion contained in the jurisdictional

chapter of the ICCTA [Chapter 135] plays no role in

construing the breadth of the preemption Congress expressed

in the preemption chapter of ICCTA [Chapter 145]).

- An examination of the ICCTA’s purpose, and an analysis

of section 14505(2) in the context of the ICCTA as a whole.

further reveals that section 14505(2) expressly preempts the

airport departure tax. Congress enacted the ICCTA to abolish

the 108-year-old Interstate Commerce Commission and to

substantially deregulate the rail and motor carrier industries.

Chapter 145 of the ICCTA is devoted to “Federal-State

Relations” and the language of certain provisions closely

mirrors the language Congress employed to state express

preemptions affecting the airline industry. As the Appellate

Court below recognized, section 14501(a), which admittedly

is not at issue in this appeal, forbids any state or local

_ regulation relating to the scheduling of interstate or intrastate

transportation and the rates incurred thereunder. 7ri-State

Coach Lines, Inc., 315 Il. App. 3d at 196, 732 N.E.2d at

1150 (App. 25a). See also Greyhound Lines, Inc. v. City of

New Orleans, 29 F. Supp. 2d 339 (E.D. La. 1998) (section

14501(a), as amended, expressly preempts municipal

regulations requiring motor carrier drivers to obtain

municipal permits). Section 14501(a)’s language

(i.e., “No State or political subdivision ... shall enact or

enforce any law, rule, regulation, standard, or other provision

having the force and effect of law relating to . . .”) closely

parallels that contained in section 1305(a)(1) of the Airline

Deregulation Act of 1978, 49 U.S.C. App. § 1301, et seq.,

which this Court found preemptive of any state or local law

that had a connection with or reference to rates, routes, or

services of an air carrier. Morales v. Trans World Airlines,

Inc., 504 U.S. 374, 112 S. Ct. 2031 (1992).

Other provisions of Chapter 145 have also been held

preemptive of state laws and regulations. The Appellate Court

below held that section 14502(b)(3), 49 U.S.C. § 14502(b)(3)

(Supp. II 1997) expressly preempts any state or local ad valorem

property tax on motor carrier transportation property at a rate

higher than on other commercial and industrial property in the

same jurisdictional area. Tri-State Coach Lines, Inc., 315 Ill.

App. 3d at 196, 732 N.E.2d at 1150 (App. 25a-26a). So too

section 14501(c) has been held to generally preempt “‘state and

local regulations of the intrastate towing industry,” Ace Auto

Body & Towing, Ltd. v. City of New York, 171 F.3d 765

(2d Cir. 1999), although statutory exemptions are applicable.

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

538 (11th Cir. 1998); Harris County Wrecker Owners for Equal

Opportunity v. City of Houston, 943 F. Supp. 711 (S.D. Tex.

1996). The Appellate Court’s improperly restrictive

interpretation of section 14505(2)’s preemptive scope cannot

be reconciled with these precedents, and these subsections

corroborate the broadly preemptive purposes of Chapter 145.

Moreover, Congress’ efforts at deregulation will be undermined

by the Appellate Court’s strict, and improper, circumscription

of language broadly preempting state and local taxes on

transportation activities identified in section 14505.

Il. THE APPELLATE COURT’S RULING THAT THE

PETITIONERS’ GROUND TRANSPORTATION

ACTIVITIES DO NOT CONSTITUTE THE

TRANSPORTATION OF PASSENGERS “TRAV-

ELING IN INTERSTATE COMMERCE” CON-

FLICTS WITH CONSISTENT PRECEDENTS OF

STATE AND FEDERAL COURTS.

The Appellate Court also improperly concluded that the

term interstate commerce does not include the commercial

transportation of persons from Illinois to other States, or

transportation within a single state, when the ground

transportation is prearranged as the continuation of an

interstate trip.’ These rulings contravene long-established

precedents of federal and state courts. The transportation of

people or property across a single state line has always

constituted “interstate commerce” by statutory and judicial

definition.

The Appellate Court’s view that the term “interstate

commerce” triggers judicial construction is inconsistent with

3. The Appellate Court also ruled that Section 14505(2)

prohibiting the state taxation of the “transportation of passengers

traveling in interstate commerce by motor carrier” is inapplicable

to the Petitioners’ business because the subject tax is imposed on

the departure of commercial vehicles from airports, not upon the

transportation of commercial vehicles. Tri-State Coach Lines, 315

Ill. App. 3d at 195, 732 N.E.2d at 1150 (App. 25a). That ruling is

also incorrect. The airport departure tax is “... an occupation tax

on all persons ... engaged in the business of providing ground

transportation for hire to passengers in the metropolitan area at the

rate of ...” 70 ILCS 210/13(f); MPEA Airport Departure Tax

Ordinance, § 1-3. The MPEA could not possibly tax anyone for

departing the airports because the MPEA neither owns nor controls

the airports.

the decisions of this Court and other federal and state courts.

Over the years, the judiciary has consistently been called

upon to decide if a particular style, mode, or manner of

transportation falls within the definition of interstate

commerce. Significantly, this Court has resolved that

question on the basis of common law principles, not by

construing each underlying statute to discern what Congress

might have been contemplating when it used the words

“interstate commerce.” (See, e.g., United States v.

Yellow Cab, 332 U.S. 218, 231, 67 S. Ct. 1560 (1947)

(in determining whether local taxicab transportation of

passengers who previously traveled by train constituted

interstate commerce for Sherman Act purposes, this Court

said: “... interstate commerce is an intensely practical

consideration drawn from the normal and accepted

course of business”). See also United States v. Capital

Transit Company, 325 U.S. 357, 363, 65 S. Ct. 1176 (1945)

(in determining whether the Interstate Commerce

Commission had jurisdiction under the Motor Carrier Act to

regulate fares for transportation of passengers between

Washington, D.C. and neighboring states, this Court said

that interstate journeys are to be measured by the “commonly

accepted sense of the transportation concept.”). The

Appellate Court’s conclusion that the Plaintiffs are not

transporting passengers in interstate commerce is a departure

from these decisions and their progeny.

Whenever the ground transportation segment of a

passenger’s trip has been prearranged, the courts have

consistently held that the ground transportation is a

continuation of the interstate trip. See Executive Town and

Country Services v. City of Atlanta, 789 F.2d 1523 (11th

Cir. 1986) (in-state limousine service constitutes interstate

commerce because 90% of company’s business consisted of

prearranged trips to or from Atlanta Hartsfield International

Airport); Charger Limousine v. Dade County Board of Tax

Commissioners, 678 F.2d 586, 589 (Sth Cir. 1982)

(“prcarrangement places the operation within the stream of

interstate commerce, even though they take place wholly

within a single state.”); Southerland v. St. Croix Taxicab

Association, 315 F.2d 364 (3d Cir. 1963) (when local

transportation has been arranged in advance, it is an integral

part of an interstate journey); Airlines Transportation vy.

Tobin, 198 F.2d 249 (4th Cir. 1952) (where the arrangement

for the motor carrier segment of the passenger’s trip is made

by the airline carrier, it is the common understanding that

an air traveler begins the interstate movement when he enters

the limousine to be carried to the airport); Airline Car Rental

v. Shreveport Airport Authority, 667 F. Supp. 293 (W.D. La.

1996) (plaintiff's allegation that 80% of its local business

was derived from prearranged reservations stated an

interstate commerce claim); Yellow Cab Company of Boca

Raton Inc. v. Broward County, 282 So. 2d 1 (Fla. Dist. Ct.

App. 1973) (activities of cab company in connection with

picking up interstate “package” or “prepaid” passengers

constituted interstate commerce); Port of Portland v. Bilic,

757 P.2d 423, 426, 427 (Or. Ct. App. 1988) (determinative

factor in deciding whether particular mode of transportation

between interstate airport or train station and the local

destination is part of interstate commerce is character of

arrangements between transporter and passenger).

Iii. THE APPELLATE COURT’S DECISION HAS

SIGNIFICANT NATIONWIDE PRACTICAL

IMPLICATIONS.

Motor carriers are providing the same kind of interstate

transportation at issue in this case from airports in New York

City, Washington, D.C., St. Louis, Las Vegas, Kansas City,

and other cities. Undoubtedly, these other local authorities

may rely on this Illinois decision to disregard the plain

language of section 14505 in order to impose the preempted

taxes on those motor carriers. The Illinois decision has

implications that extend beyond the taxation of motor carriers

transporting passengers in interstate commerce. If Illinois’

aberrant doctrine of judicial construction is allowed to

proliferate, then the door will be opened for state and local

taxation of other industries where Congress has similarly

preempted local taxation. The Court should grant certiorari

to review this departure from the long established doctrine

designed to ensure that the States respect the plain language

of express federal preemptions.

CONCLUSION

WHEREFORE, for the foregoing reasons, Petitioners

respectfully request that the petition for writ of certiorari be

granted. *

Respectfully submitted,

MICHAEL A. POLLARD

Counsel of Record

BAKER & MCKENZIE

One Prudential Plaza

130 East Randolph Drive

Chicago, Illinois 60601

(312) 861-2786

JAMES GEIS

JAMES GEis LAW OFFICE

5647 South Drexel Avenue

Chicago, Illinois 60637

(773) 667-9303

ALLAN C. ZUCKERMAN

Law OFFICES OF

ALLAN C. ZUCKERMAN

203 North LaSalle Street

Chicago, Illinois 60601

(312) 236-5432

JAMES A. McGurk

140 South Dearborn Street

Chicago, Iilinois 60603

(312) 236-8900

SANTIAGO A. DURANGO

1012 Thornberry Court

Ottawa, Illinois 61350

(815) 434-5531

Attorneys for Petitioners

» ol te. Mh he s re —— pil a Fe a eee le ee ee TT) ee oa

APPENDIX

APPENDIX A — OPINION OF THE APPELLATE

COURT OF ILLINOIS, FIRST DISTRICT, THIRD

DIVISION DATED JUNE 30, 2000

June 30, 2000

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT, THIRD DIVISION

No. 1-98-3322

TRI-STATE COACH LINES, INC., et al.,

Plaintiffs-Appellants,

Cross-Appellees,

Vv.

METROPOLITAN PIER AND EXPOSITION AUTHORITY,

a body politic and municipal corporation,

Defendant- Appellee,

Cross-Appellant.

Appeal from the Circuit Court of Cook County.

Honorable John A. Ward, Judge Presiding.

JUSTICE BURKE delivered the opinion of the court:

Plaintiffs Tri-State Coach Lines, Inc., and certified

members of Class B(1) and Class B(2) (Class B), appeal from

an order of the circuit court granting summary judgment

against them and in favor of defendant Metropolitan Pier

and Exposition Authority (MPEA) in a class action lawsuit

Appendix A

filed by plaintiffs, ultimately certified by the court as Class

A and Class B members, who sought, inter alia, a declaration

determining whether MPEA’s imposition of an airport

departure tax on plaintiffs’ ground transportation services

violated section 14505(2) of the Interstate Commerce

Commission Termination Act of 1995 (49 U.S.C. §14505(2)

(Supp. II 1997)), which forbids state and local taxation on

certain interstate travel. MPEA cross-appeals from the same

order granting summary judgment against it and in favor of

Class A. For the reasons set forth below, we affirm in part

and reverse in part.

In 1992, the Illinois General Assembly, in enacting

Public Act 87-733 (Pub. Act 87-733, eff. July 1, 1992),

amended the Metropolitan Pier and Exposition Authority Act

(MPEA Act) (70 ILCS 210/1 et seg. (West 1994)) to

authorize a $1 billion expansion of Chicago’s McCormick

Place. To finance the expansion, the General Assembly

directed MPEA, a political subdivision of local government,

a body politic, and a municipal corporation responsible for,

inter alia, the construction of facilities at McCormick Place,

to issue bonds. See 70 ILCS 210/13.2 (West 1994). To repay

the bonds, the General Assembly authorized MPEA to

impose certain new local taxes, including “an occupation

tax on all persons, other than a governmental agency,

engaged in the business of providing ground transportation

for hire to passengers in the metropolitan area.” 70 ILCS

210/13(f) (West 1994). The General Assembly then directed

MPEA to levy this occupation tax at a specified rate upon

each “ taxi or livery vehicle [or bus or van] departure with

passengers for hire from [Chicago’s] commercial service

airports.” 70 ILCS 210/13(f) (West 1994).

Appendix A

In accordance with the MPEA Act, MPEA enacted the

MPEA Airport Departure Tax Ordinance (Ordinance), which

became effective January 1, 1993. The Ordinance requires

the levying of an airport departure tax, otherwise known as

the MPEA Airport Departure Tax, upon the following

specific categories of providers of ground transportation:

“(i) Category 1. For each taxi or livery

vehicle departure from a commercial service

airport with passengers for hire: $2 per departure.

(11) Category 2. * * * [FJor each departure

from a commercial service airport with passengers

for hire: $9 per bus or van with a capacity of 1-12

passengers; $18 per bus or van with a capacity of

13-24 passengers; and $27 per bus or van with a

capacity of over 24 passengers.

(iii) Category 3. For each departure from a

commercial service airport with passengers for

hire in a bus or van operated by a person regulated

by the Interstate Commerce Commission or the

Illinois Commerce Commission, and operating

scheduled service from the airport, and charging

fares on a per passenger basis: $1 per passenger.”

Ordinance §1-3.

Shortly after its imposition, the airport departure tax

became the subject of two separate constitutional challenges.

In Allegro Services, Ltd. v. Metropolitan Pier and Exposition

Authority, 172 Ill. 2d 243, 665 N.E.2d 1246 (1996), a case

filed by some of the same plaintiffs who have filed this action,

Appendix A

our supreme court held that the airport departure tax, as

applied to suburban and out-of-state ground transportation

operators providing passenger service from Chicago’s

airports to destinations beyond the city limits, does not

violate the equal protection clause of the United States

Constitution (U.S. Const., amend. XIV), the interstate

commerce clause of the United States Constitution (U.S.

Const., art. I, §8), or the uniformity clause of the Illinois

Constitution (Ill. Const. 1970, art. IX, §2). Allegro, 172 Ill.

2d at 260, 269. In Terry v. Metropolitan Pier and Exposition

Authority, 271 Ill. App. 3d 446, 648 N.E.2d 1047 (1995),

this court rejected similar constitutional claims made by

vehicle operators who were being taxed under the Ordinance

pursuant to their ground transportation of passengers into

Chicago’s city limits. Terry, 271 Ill. App. 3d at 452-56.

On February 7, 1996, plaintiffs in the present case, all

ground transportation operators engaged in the business of

transporting passengers for-hire by bus, taxi, or livery from

Chicago’s O’Hare International Airport (O’Hare) and

Midway Airport (Midway) to destinations in Illinois,

northern Indiana, and southern Wisconsin, filed a class action

lawsuit on behalf of themselves and others similarly situated,

challenging the levying of the airport departure tax upon

them, not on any constitutional basis, but on a new statutory

provision contained in the Interstate Commerce Commission

Termination Act of 1995 (ICCTA), Pub. L. No. 104-88, 109

Stat. 803 (codified at 49 U.S.C. § 13101 et seg. (Supp. II

1997)), which became effective January 1, 1996. Section

14505(2) of the ICCTA, upon which plaintiffs rely, provides

that “[a] State or political subdivision thereof may not collect

or levy a tax, fee, head charge, or other charge on * * * the

Appendix A

transportation of a passenger traveling in interstate commerce

by motor carrier.” 49 U.S.C. §14505(2) (Supp. II 1997).

In their class action complaint, as amended, and

numerous subsequent pleadings, plaintiffs alleged that the

clear language of section 14505(2) protects from local

taxation the commercial ground transportation activities of

plaintiffs’ proposed class members. Plaintiffs’ proposed

Class A consisted of commercial operators providing for-

hire ground transportation to passengers departing from

O’Hare and Midway and destined for locations beyond

Illinois’ border. Plaintiffs’ proposed Class B consisted of

those commercial operators providing for-hire ground

transportation to passengers departing from O’Hare and

Midway and destined for locations within Illinois’ border

who prearranged their ground transportation as one

component of an interstate journey by air. Plaintiffs

maintained that both proposed Class A and Class B are

transporting passengers traveling in interstate commerce and,

thus, the airport departure tax, as applied against each class,

violates section 14505(2)’s prohibition against state and local

taxation of “the transportation of a passenger traveling in

interstate commerce by motor carrier.” Stated another way,

plaintiffs alleged that section 14505(2) of the ICCTA, as

applied against them, preempts and prohibits imposition of

the airport departure tax. Accordingly, plaintiffs sought, inter

alia, a court order declaring the airport departure tax, as

applied against them, invalid and an injunction restraining

MPEA from collecting the airport departure tax.

In its response to plaintiffs’ class action complaint and

request for injunctive relief, MPEA argued, inter alia, that

Appendix A

the legislative history of section 14505 indicates that

Congress had intended to preempt only state and local

taxation of tickets purchased by passengers traveling interstate

on buses. Therefore, MPEA argued, section 14505(2)

applied, if at all, to only a small fraction of plaintiffs’ ground

transportation activities taxed under the Ordinance. MPEA,

consequently, filed a motion for judgment on the pleadings

with respect to the allegations brought on behalf of proposed

Class B.

The trial court granted MPEA’s motion, finding that

plaintiffs had not stated a cause of action with respect to

Class B but had with respect to Class A. The court determined

that section 14505(2) prohibits levying the airport departure

tax on departures from O’Hare and Midway to destinations

located beyond Illinois’ border but does not prohibit levying

the airport departure tax on departures from O’Hare and

Midway to destinations located within Illinois. Upon the

parties’ agreement, the court subsequently vacated its order

awarding judgment on the pleadings 1n favor of MPE.\ as to

Class B so that the issue could be resolved by summary

judgment.

The trial court ordered the case to proceed as a class

action, and it certified Class A and Class B, dividing Class

B into. Classes B(1) and B(2). Class A consists of those

ground transportation operators who provide for-hire

passenger transportation from O’Hare and Midway to

destinations located in northern Indiana and southern

Wisconsin. Class B consists of those operators who provide

service to destinations located within Illinois “where the

Appendix A

passengers have prearranged! their ground transportation as

_ part of their interstate and/or foreign travel by air” (Class

B(1)) or are “traveling on a through ticket pursuant to a motor

carrier and airline master purchase of service agreement”

(Class B(2)). Plaintiffs and MPEA then filed cross-motions

for summary judgment, and the trial court granted summary

judgment in favor of plaintiffs and against MPEA as to Class

A (those operators providing service to destinations outside

Illinois) and against the plaintiffs and in favor of MPEA as

to Class B (operators providing prearranged service to

destinations within Illinois). This appeal and cross-appeal

followed.

Given the procedural posture of this case, we initially

address the question of whether the trial court should have

dismissed plaintiffs’ action for lack of jurisdiction based on

plaintiffs’ failure to exhaust their administrative remedies.

According to our supreme court:

- “It is well established that, in cases which seek to

avoid the statutory procedures relating to the

assessment and collection of taxes, relief by way

of declaratory judgment should not be afforded

in a tax case that did not merit relief in chancery

by way of injunction. [Citations.] Although the

existence of another remedy does not ordinarily

preclude bringing an action for declaratory

1. Plaintiffs define “prearrangement” as “the arrangement of

the single-state ground segment of the trip by the passenger, the air

carrier, or by a third party, such as the travel agency or charter

service, prior to the commencement of the cross-border air segment

of the passenger’s journey.”

Appendix A

judgment, in revenue cases it is the rule, applying

general equitable principles, that relief by way of

declaratory judgment is not available if the statute

provides an adequate remedy at law.” People

ex rel. Fahner v. American Telephone &

Telegraph Co., 86 Ill. 2d 479, 484-85, 427 N.E.2d

1226 (1981).

Judicial scrutiny by way of equity is improper where

administrative review is available under the Administrative

Review Law (735 ILCS 5/3-101 et seq. (West 1996)).

See Illinois Bell Telephone Co. v. Allphin, 60 Ill. 2d 350,

353-57, 326 N.E.2d 737 (1975) (overturning Owens-Illinois

Glass Co. v. McKibbin, 385 Ill. 245, 52 N.E.2d 177 (1943));

accord County of Knox ex rel. Masterson v. Highlands

L.L.C., 188 Ill. 2d 546, 551-52, 723 N.E.2d 256 (1999). As

explained in Allphin, the rationale underlying the doctrine

of exhaustion of administrative remedies (exhaustion

doctrine), which includes administrative review in the circuit

court, is that “(1) it allows full development of the facts

before the agency; (2) it allows the agency an opportunity to

utilize its expertise; and (3) the aggrieved party may succeed

before the agency, rendering judicial review unnecessary.”

Allphin, 60 Ill. 2d at 358. The Administrative Review Law

applies to, and governs,

“every action to review judicially a final decision

of any administrative agency where the Act

creating or conferring power on such agency, by

express reference, adopts the provisions of * * *

this [Law] or its predecessor, the Administrative

Review Act. * * * In all such cases, any other

Appendix A

statutory, equitable or common law mode of

review of decisions of administrative agencies

heretofore available shall not hereafter be

employed.” 735 ILCS 5/3-102 (West 1996).

See e.g., Midland Hotel Corp. v. Director of Employment

Security, 282 Ill. App.3d 312, 317-19, 668 N.E.2d 82 (1996)

(exhaustion doctrine applied because the agency had

exclusive jurisdiction in the case and administrative review

was the sole remedy for challenging the agency’s orders).

Pursuant to our request during oral arguments, the parties

briefed the applicability of the exhaustion doctrine in this

appeal, and we are persuaded that the trial court had

jurisdiction to reach the merits. First, as plaintiffs’ correctly

argue, the MPEA Act (70 ILCS 210/13(f) (West 1996)), the

legislation conferring power to MPEA to impose the airport

departure tax, did not expressly adopt the Administrative

Review Law provisions.” Rather, the Ordinance enacted by

2. We note that the other subsections of section i3 of the MPEA

Act, i.e., sections 13(b), (c), (d), and (e), relating to MPEA’s taxing

power, do expressly adopt the Administrative Review Law. Section

13(b) of the MPEA Act incorporates section 11 of the Retailers’

Occupation Tax Act (35 ILCS 120/lla (West 1996)), which

expressly adopts the Administrative Review Law. Section 13(c) of

the MPEA Act incorporates the provisions contained in the Hotel

Operators’ Occupation Tax Act, which expressly adopts the

Administrative Review Law. See 35 ILCS 145/10 (West 1996).

Sections 13(d) and (e) of the MPEA Act incorporate sections 3 and

4, respectively, of the Automobile Renting Occupation and Use Tax

Act (35 ILCS 155/3, 4 (West 1996)), which expressly adopt the

Administrative Review Law by their incorporation of the provisions

contained in the Retailers’ Occupation Tax Act.

10a

Appendix A

MPEA pursuant to MPEA’s authority under the MPEA Act,

merely provides that plaintiffs await determinations by the

MPEA collector in accordance with the procedures provided

in the Ordinance (MPEA Airport Departure Ordinance,

Article V, Procedures).

Secondly, we find that exceptions to the general

- requirement of strict compliance with the exhaustion doctrine

exist in the instant case. See generally, Northwestern

University v. City of Evanston, 74 Ill. 2d 80, 86-88, 383

N.E.2d 964 (1978); Allphin, 60 Ill. 2d at 358. The one we

find applicable here is that a party need not exhaust his

administrative remedies before seeking judicial relief if his

complaint attacks the constitutionality of a statute, ordinance,

or administrative rule on its face. See Northwestern

University, 74 Ill. 2d at 86; see, e.g., County of Kane v.

Carlson, 116 Ill. 2d 186, 198-99, 507 N.E.2d 482 (1987)

(statute); Phillips v. Graham, 86 Ill. 2d 274, 289, 427 N.E.2d

550 (1981) (statute); City of Chicago v. Illinois Commerce

Comm'n, 79 Ill. 2d 213, 217-18, 402 N.E.2d 595 (1980)

(administrative rule); Van Harken v. City of Chicago, 305

Ill. App. 3d 972, 977, 713 N.E.2d 754 (1999) (ordinance).

Plaintiffs in the present case allege in their complaint

that MPEA’s imposition of the airport departure tax upon

them violates section 14505 of the ICCTA. MPEA, in its

verified answer, admits that it imposed the airport departure

tax upon plaintiffs and further states that plaintiffs’ other

allegations were conclusions of law requiring no response.

In their supplemental briefs filed after oral arguments,

plaintiffs and defendant challenge the Ordinance as “fatally

defective on its face because it conflicts with the federal

- i

lla

Appendix A

statute [49 U.S.C. §14505],” and they argue that plaintiffs’

allegation that section 14505 preempts the airport departure

tax under any set of facts makes it a facial challenge to the

constitutionality of the departure tax under the supremacy

clause (U.S. Const., art. VI).

We agree with plaintiffs and defendant. As our supreme

court has stated, “[t]he preemption doctrine is rooted in the

supremacy clause of the United States Constitution.” Orman

v. Charles Schwab & Co., Inc., 179 Ill. 2d 282, 285, 688

N.E.2d 620 (1997). “Under the Supremacy Clause (U.S.

Const. Art. VI), Federal law pre-empts State law when the

latter ‘stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Congress.’ ”

Ginn v. Consolidation Coal Co., 107 Ill. App. 3d 564, 565,

437 N.E.2d 793 (1982), quoting Hines v. Davidowitz, 312

U.S. 52, 67, 85 L. Ed. 581, 61 S. Ct. 399 (1941). Plaintiffs,

in the case at bar, unlike the plaintiffs in Silver Fox Limousine

v. City of Chicago, 306 Ill. App. 3d 103, 713 N.E.2d 583 (1999),

who challenged the application of the City of Chicago’s

ground transportation tax and, therefore, had to exhaust their

administrative remedies before seeking judicial review,

plaintiffs here raised a constitutional preemption claim and

were, in essence, challenging the Ordinance as being facially

invalid, rather than invalid as applied to them. Consequently,

plaintiffs were not required to exhaust their administrative

remedies. See generally Phillips, 86 Ill. 2d at 289 (noting

that if a party’s claim is that a statute on its face was applied

in a discriminatory or arbitrary manner rather than being

unconstitutional, the party filing the complaint must first seek

relief through the applicable administrative remedies);

compare Sanders v. City of Springfield, 130 Ill. App. 3d 490,

———

12a

Appendix A

493, 474 N.E.2d 438 (1985) (reaching the merits of the

plaintiff's preemption claim) and Ginn, 107 Ill. App. 3d at

567-68 (same), with Midland Hotel, 282 Ill. App. 3d at 319-

21 (affirming dismissal of a complaint because the complaint

did not challenge the facial validity of the statute but, rather,

challenged the agency’s interpretation and application of the

statute’s provisions) and Head-On Collision Line, Inc. v.

Kirk, 36 Ill. App. 3d 263, 267-69, 343 N.E.2d 534 (1976)

(same).

Another exception to the exhaustion doctrine that we

find applicable to the present case is “where no issues of

fact are presented or agency experience involved.” Office of

the Cook County State's Attorney v. Illinois Local Labor

Relations Board, 166 Ill. 2d 296, 306-07, 652 N.E.2d 301

(1995) (stating that where an issue can be resolved by

statutory and case law interpretation, it falls within a court’s

expertise and not an administrative agency’s); see, e.g.,

County of Knox, 188 Ill. 2d at 552 (agency’s particular

expertise was not implicated in the necessary statutory

interpretation); Soo Line R.R. Co. v. Hynes, 269 Ill. App. 3d

81, 93, 646 N.E.2d 1218 (1994) (same). We believe that

plaintiffs’ complaint presents a pure issue of law which

necessitates our statutory interpretation and does not require

fact finding by the administrative agency or an application

of its particular expertise. Accordingly, because plaintiffs’

claim falls within established exceptions to the exhaustion

doctrine, we find that the plaintiffs were not required to

exhaust their administrative remedies prior to proceeding in

our state courts. We therefore address the merits of the

arguments made on appeal.

13a

Appendix A

Plaintiffs contend that the trial court erred in granting

summary judgment in favor of MPEA and against Class B,

the class of operators who transport airline passengers from

O’Hare and Midway to destinations within illinois, in light

of the express preemption stated in section 14505(2) of the

ICCTA, which prohibits state or local taxation of “the

transportation of a passenger traveling in interstate commerce

by motor carrier.” Plaintiffs argue that each time an airline

passenger takes a taxi, livery, or bus ride from O’Hare or

Midway that was “prearranged” in connection with an

immediately preceding interstate flight, that passenger is

“traveling in interstate commerce,” even if the taxi, bus or

livery ride is headed for a destination within the state of

Illinois. Therefore, according to plaintiffs, section 14505(2)

proscribes the levying of the airport departure tax upon Class

B because the constituent prearranged ground segment of

the passengers’ journeys remains interstate in character even

though it occurs solely within the boundaries of I!Ilinois.

In response, MPEA argues that the trial court properly

upheld the airport departure tax with respect to Class B

because any interstate travel undertaken by the passengers

whom Class B transports is not by “motor carrier” designated

in section 14505(2) of the ICCTA, but by airplane. Class

B’s motor carrier ground transportation trips of passengers

from O’Hare and Midway to destinations within Illinois,

MPEA asserts, are exclusively intrastate. Therefore, section

14505(2), which applies only to taxation of “motor carrier”

transportation between two states, is inapplicable to the

intrastate ground transportation services provided by Class

B. MPEA further argues that there is no language in the

ICCTA or any legislative history to support plaintiffs’

14a

Appendix A

contention that prearranged rides constitute an exception to

the statute’s plain limitation of state taxes on transportation

that crosses a state line.

Summary judgment is appropriate where “the pleadings,

depositions, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West

1996); Allegro, 172 Ill. 2d at 256. Where the parties have

filed cross-motions for summary judgment, they agree that

no genuine issue as to any material fact exists and that only

a question of law is involved, and they invite the reviewing

court to decide the issues based on the record. See Andrews

v. Cramer, 256 Ill. App. 3d 766, 769, 629 N.E.2d 133 (1993).

The standard of appellate review in such a case, as here, is

de novo. See Andrews, 256 Ill. App. 3d at 769.

A brief explanation regarding the history of the ICCTA

is warranted here. Congress passed the ICCTA to “abolish

the Interstate Commerce Commission, to amend subtitle IV

of title 49, United States Code, to reform economic regulation

of transportation, and for other purposes.” Pub. L. No. 104-

88, Preamble. Consistent with its goal of simplifying federal

regulation over interstate transportation, Congress delegated

many of its regulatory responsibilities to other agencies.

Within Part B of the ICCTA, Congress delegated to the

Department of Transportation (DOT) regulatory authority

over interstate motor carrier transportation. 49 U.S.C.

§§13301, 13501 (Supp. II 1997). In Chapter 135, Congress

prescribed the limits of federal authority to regulate motor

Carrier transportation over, inter alia, motor carrier

l5a

Appendix A

transportation that does not cross a state line (§13501),

taxicab service (§13506(a)(2)), and the transportation of

passengers that is “incidental to transportation by aircraft”

(§13506(a)(8)(A)). Chapter 145 contains provisions

delineating between those transportation activities over

which the federal government has chosen to assert its

authority and those that remain subject to the states’

sovereign regulatory powers. Section 14505, upon which

plaintiffs rely, states in its entirety:

“A State or political subdivision thereof may not

collect or levy a tax, fee, head charge, or other

charge on —

(1) a passenger traveling in interstate

commerce by motor carrier;

(2) the transportation of a passenger

traveling in interstate commerce by

motor carrier;

(3) the sale of passenger transportation

in interstate commerce by motor

Carrier; or

(4) the gross receipts derived from such

transportation.” 49 U.S.C. §14505

(Supp. II 1997).

The issue confronting this court is the proper

construction of section 14505(2) in the context of the ICCTA.

The framework for construing a legislative provision, such

l6a

Appendix A

as section 14505, is well-established. The primary rule of

statutory construction is to ascertain and give effect to the

legislature’s intent, and that inquiry must begin with the

statute’s language. See Van’s Material Co., Inc. v.

Department of Revenue, 131 Ill. 2d 196, 202, 545 N.E.2d

695 (1989). Where statutory language is ambiguous, a court

may consider other extrinsic aids for construction, including

the legislative history and statute’s background, e.g., the

legislative committee reports. See Kunkel v. Walton, 179 Il.

2d 519, 534, 689 N.E.2d 1047 (1997); Van's Material, 131

Iil. 2d at 202. A final cardinal rule of construction, of

particular significance in the present case, 1s that each section

of an act subject to two conflicting interpretations should be

accorded the interpretation more harmonious with the act’s

general purpose. In this regard, our supreme court has stated:

“The policies underlying a statute are often

regarded as a valuable source of legislative intent.

[Citations.] Examination of the reason and

' necessity for the law, the evils which the

legislature sought to remedy and the purposes

intended to be accomplished is [sic] particularly

important in cases such as this, where the statutory

language is not clear. [Citations.] This court will

presume that the legislature had a definite purpose

in enacting the statute and drafted the statute so

that each part would be in harmony with that

purpose. [Citations.] From this presumption

proceeds the rule that the general purpose of the

whole act shall control and that all the parts shall

be interpreted consistently with this purpose.

If the language of a statute is susceptible to two

ae Don tc one emer Mae et a: ae"

17a

Appendix A

constructions, one of which will Carry out its

purpose and another which will defeat it, the

statute will receive the former construction.”

Harvel v. City of Johnston City, 146 Ill. 2d 277,

283-84, 586 N.E.2d 1217 (1992).

When resolving an issue of Statutory construction, a

reviewing court conducts a de novo review. See Paris vy.

Feder, 179 Ill. 2d 173, 177-78, 688 N.E.2d 137 (1997).

Applying these principles, we find that section 14505(2)

is ambiguous because it is susceptible to two equally

reasonable and conflicting interpretations. Plaintiffs

reasonably interpret the phrase “interstate commerce”

embodied in section 14505(2) to mean “continuity of transit,”

and they argue, therefore, that traveling interstate by airplane

makes subsequent intrastate travel by motor carrier, when

prearranged, “interstate” travel. Moreover, according to

plaintiffs, when passengers travel in interstate commerce,

as those whom the Class B plaintiffs service, and have

prearranged their ground transportation segment of the trips

through ticketing, contract, or reservation, section 14505(2)

preempts from local taxation the ground segment of the

passengers’ journeys, whether in-state or subsequently

beyond a state’s border. MPEA, on the other hand, reasonably

interprets the language embodied in section 14505(2) to mean

the prohibition of state and local taxation on the

transportation of passengers traveling in interstate commerce,

or from one state to another, only by way of “motor carrier.”

MPEA argues that, “before the prohibition under section

14505(2) can conceivably apply, there must at the very least

be trips across a state line by motor Carrier, something that

18a

Appendix A

clearly is not present where passengers are transported from

Chicago’s O’Hare or Midway Airports to destinations within

Illinois.” Both interpretations are reasonable. Thus, the

statutory language is ambiguous and we next consider the

legislative history and background of the statute for

clarification of the legislature’s intent in enacting section

14505(2).

According to the House and Conference Reports, the

purpose underlying the enactment of section 14505 was to

prohibit “a State or political subdivision of a State from

levying a tax on bus tickets for interstate travel.” H.R. Rep.

No. 104-311, at 120 (1995); H.R. Conf. Rep. No. 104-422,

at 220 (1995). An accompanying Senate Report explicitly

declares the reason underlying section 14505’s enactment

and states: “This provision is intended to override a recent

court decision [Oklahoma Tax Comm'n v. Jefferson Lines,

Inc., 514U.S8. 175, 131 L. Ed. 2d 261, 115 S. Ct. 1331 (1995)]

permitting such a tax.” S. Rep. No. 104-176, at 48 (1995);

see also H.R. Conf. Rep. No. 104-422, at 220 (“This reverses

a recent Supreme Court decision [Jefferson Lines] permitting

states [to levy a tax on bus tickets for interstate travel] and

conforms taxation of bus tickets to that of airline tickets”).

The Supreme Court in Jefferson Lines departed from

established precedent in ruling that Oklahoma could, without

violating the commerce clause, levy a sales tax on the full

price of a ticket for bus travel from Oklahoma to another

state. Jefferson Lines, 514 U.S. at 200. The precedent from

which the Jefferson Lines court departed was the Supreme

Court’s 1948 decision in Central Greyhound Lines, Inc. v.

Mealey, 334 U.S. 653, 92 L. Ed. 1633, 68 S. Ct. 1260 (1948),

~~ 2 -2

19a

Appendix A

in which the court struck down as unconstitutional an

unapportioned state tax imposed by New York on the gross

receipts of a company that had sold tickets in New York for

interstate bus travel. The Mealey court found the state statute

fatally flawed because it failed to apportion taxable receipts

in the same proportions that miles traveled through the

various states bore to the total, thus causing “interstate

transportation [to] bear more than ‘a fair share of the cost of

the local government whose protection it enjoys.’ ” Mealey,

334 U.S. at 663, quoting Freeman v. Hewit, 329 U.S. 249,

253, 91 L. Ed. 265, 67 S. Ct. 274 (1946).

The state tax held unconstitutional in Mealey was, for

all relevant purposes, identical to that at issue in Jefferson

Lines. Both cases involved taxes imposed upon interstate

bus transportation. Oklahoma imposed its tax on the total

value of trips of which a large portion may have taken place

in other states, and New York, likewise, imposed its tax on

the total value of trips of which a large portion took place in

other states. Neither state made any effort to apportion the

tax to reflect the comparative cost or value of the in-state

and out-of-state portions of the trips to avoid taxing that

portion of the interstate activity performed in other states.

Nevertheless, the court in Jefferson Lines refused to follow

Mealey, and it upheld the New York state tax, finding that it

neither imposed an undue burden on interstate commerce

nor presented a danger of multiple taxation. Jefferson Lines,

514 U.S. at 191. Consequently, by departing from the

reasoning stated in Mealey, the Jefferson Lines court paved

the way for states to impose sales taxes not only on the full

price of interstate travel tickets but on other transportation

services. See Tracy A. Kaye, Show Me the Money:

20a

Appendix A

Congressional Limitations on State Tax Sovereignty,

35 Harv. J. on Legis. 149, 166 (1998); Thomas H.

McConnell, Congress Gives Intercity Busing a Free Pass:

A Comment on Jefferson Lines v. Oklahoma Tax Commission,

23 Transp. L. J. 503, 518 (1996).

It was within this jurisprudential background and climate

that Congress enacted section 14505 of the ICCTA. This

background, coupled with the clear legislative declaration

disclosed within the committee and conference reports,

reveals a congressional purpose designed to prevent states

and their political subdivisions from collecting or levying

taxes on bus fares for interstate travel. Accordingly, we find

that Congress’ exclusive focus in enacting section 14505 was

to ensure that the tickets for interstate city-to-city bus trips,

trips often passing through multiple states and having

minimal contact with the state of their origin, were not taxed

by the originating state in a manner disproportionate to the

benefits received in that state. Stated another way, the

“particular evil” that section 14505 was intended to remedy

was a State’s imposition of a sales tax upon the whole price

of an interstate bus ticket where the contact of the interstate

bus trip with the taxing state was minor.

It follows then that section 14505 does not apply either

to intrastate travel or to the type of travel represented by

Class B in the present case, a class represented by ground

transportation operators who transport passengers,

subsequent to those passengers’ interstate air travels, from

either O’Hare or Midway to destinations within Illinois on a

prearranged basis. Accordingly, we hold that the trial court

did not err in granting summary judgment against Class B

and in favor of MPEA.

2la

Appendix A

We next address the contention raised in MPEA’s cross-

appeal, which is that the trial court erred in granting summary

judgment in favor of Class A based on its determination that

section 14505(2) preempted the airport departure tax imposed

} upon ground transportation operators who transport

‘ passengers leaving O’Hare and Midway to surrounding

i localities in Indiana and Wisconsin. MPEA argues that the

language and structure of section 14505, as well as related

portions of the ICCTA, demonstrate no congressional intent

to preclude states and localities from taxing commercial

motor carrier departures from airports to homes, hotels, and

businesses in communities served by those airports, even if

those communities are located in another state. Rather,

according to MPEA, legislative history confirms that

Congress intended only to preclude disproportionate state

taxes on the sale of interstate bus tickets.

es >” weet we SF en

2 ed IN Cade BLISS

hi Beth ae

Plaintiffs argue that section 14505(2) prohibits MPEA

from imposing the airport departure tax on those ground

i transportation operators, as represented by Class A, who

depart O’Hare and Midway with passengers traveling on

ground transportation trips headed for destinations outside

Illinois. Plaintiffs maintain that the trial court properly granted

summary judgment in favor of Class A because section

14505(2) precludes local taxation of the transportation of

passengers who cross state lines by motor carrier.

SPOR, A OMNIS oS

As discussed above, the legislative history of section

14505 of the ICCTA is clear that Congress intended merely

to preclude states from disproportionately taxing multistate

bus trips, a specific and limited danger not presented by the

airport departure tax here when imposed upon those operators

+: i i

22a

Appendix A

represented by Class B, who provide intrastate ground

transportation travel. However, the issue presented by MPEA

is whether Congress intended section 14505 to preempt state

and local taxes upon the type of travel provided by the

Class A members, who transport passengers from O’Hare

or Midway in buses, taxis, and liveries to destinations outside

Illinois.

The preemption doctrine arises from the supremacy

clause of the United States Constitution, and it allows federal

law to preempt state law. U.S. Const., art. VI. A court’s

ultimate task, should a preemption issue arise, “is to

determine whether State regulation is consistent with the

structure and the purpose of the statute taken as a whole.”

Davis v. States Drywall & Painting, 268 Ill. App. 3d 704,

709, 645 N.E.2d 304 (1994). In making this determination,

the court must examine the purposes of both the state and

federal acts. See Davis, 268 Ill. App. 3d at 709. No

preemption exists if the goais of the federal and state or local

governments are different. See Western Air Lines, Inc. v.

Board of Equalization, 480 U.S. 123, 130, 94 L. Ed. 2d 112,

107 S. Ct. 1038 (1987) (no preemption existed where the

“purpose and effect” of a state’s airline property tax did not

conflict with the policy embodied in the Federal Aviation

Act); see also LaSalle National Bank v. County of Cook,

34 Ill. App. 3d 264, 275, 340 N.E.2d 79 (1975) (finding that

the goals of the Federal and local governments were different).

A presumption exists in every preemption case that

Congress did not intend to supplant state law. Scholtens v.

3. MPEA does not argue that the inclusion of taxis and liveries

with buses in Class A was improper.

23a

Appendix A

Schneider, 173 Ill. 2d 375, 379, 671 N.E.2d 657 (1996);

Davis, 268 Ill. App. 3d at 712. This “presumption against

federal preemption” applies with special force where “a

matter of primary state responsibility,” like local taxation,

is at stake. Air Line Pilots Ass'n International v. UAL Corp.,

874 F.2d 439, 447 (7th Cir. 1989). Thus, no federal

preemption exists concerning a state or local tax unless

Congress made its intent to preempt “unmistakably clear in

the language of the statute.” Gregory v. Ashcroft, 501 U.S.

452, 460-61, 115 L. Ed. 2d 410, 111 S. Ct. 2395 (1991);

accord Department of Revenue v. ACF Industries, Inc., 510

U.S. 332, 345, 127 L. Ed. 2d 165, 114 S. Ct. 843 (1994);

Michigan v. United States, 40 F.3d 817, 824 (6th Cir. 1994).

This “requirement of a clear statement assures that the

legislature has in fact faced, and intended to bring into issue,

the critical matters involved in the judicial decision [and is]

an acknowledgement that the States retain substantial

sovereign powers under our constitutional scheme, powers

with which Congress does not readily interfere.” Gregory,

501 U.S. at 461, quoting Will v. Michigan Department of

State Police, 491 U.S. 58, 65, 105 L. Ed. 2d 45, 109 S. Ct.

2304 (1989).

Applying these principles, and placing section 14505(2)

in both its statutory and textual context and comparing it

against related provisions contained in the ICCTA, we find

that Congress, in enacting section 14505, did not intend to

preempt the levying of the airport departure tax here even

upon the transportation services provided by Class A. F irst,

the policy underlying section 14505 does not conflict with

the purpose and effect of the airport departure tax.

As discussed above, Congress enacted section 14505 to

24a

Appendix A

ensure that one state might not disproportionately tax the

purchase of bus tickets for travel through multiple states. In

contrast, the Illinois General Assembly authorized the

collection of the airport departure tax to help finance a recent

expansion of McCormick Place. The effect created by the

Ordinance imposing the airport departure tax is the collecting

of a fee upon the departure of motor carrier trips by bus,

taxi, or livery from O’ Hare or Midway to homes or businesses

in Illinois, southern Wisconsin, or northern Indiana. As

MPEA points out, these trips are not analogous nor

comparable to the type of city-to-city interstate bus trips of

the type considered by the Supreme Court in Mealey and

Jefferson Lines and focused upon by Congress when enacting

section 14505 — trips where buses rather than aircraft were

the means by which passengers engaged in long-distance,

state-to-state travel.

Moreover, in enacting section 14505 to countermand the

Supreme Court’s decision in Jefferson Lines, Congress

removed the danger that the state in which a cross-country

bus trip originated and where the tickets were purchased

could disproportionately burden interstate commerce by

imposing a sales tax on the entire ticket price, despite the

fact that the interstate bus trip had only relatively minor or

brief contact with the taxing state. No danger of

disproportionate taxation exists in the collection of the airport

departure tax in the present case because the taxed

commercial motor carriers, as represented by Class B, have

their primary contact with and derive the bulk of their benefits

from Illinois. See Allegro, 172 Ill. 2d at 266-67 (stating that

if “every state imposed a tax triggered by departures from

airports located within the state, each departure would only

Bele RL AT Rta OT Old Med Sh ie

25a

Appendix A

result in tax liability to a single state”): Goldberg v. Johnson,

117 Ill. 2d 493, 502, 512 N.E.2d 1262 (1987) (stating that

where “no other taxing body can levy the tax being

challenged, it is clear that there is no risk of multiple

taxation”).

Construction of the language of both the federal and state

acts involved in the present case leads to a similar conclusion.

The language of section 14505(2), prohibiting state taxation

of “the transportation of passengers traveling in interstate

commerce by motor carrier” is inapplicable to the airport

departure tax, which is imposed not on the transportation

of passengers in interstate commerce but upon the departures

of commercial vehicles from O’Hare and Midway. In other

words, the “taxable” event to which the airport departure

tax attaches is not the interstate transportation of passengers

but, rather, the ground transportation departures from the

airports.

This construction is compelled when one considers the

absence of any “unmistakably clear” expression of

congressional intent to preempt the imposition of a state or

local tax on commercial motor carrier departures from an

airport. And that telling omission is highlighted by the fact

that Congress did employ such “unmistakably clear”

preemptive language in other sections of the ICCTA.

See, e.g., 49 U.S.C. §14501(a) (Supp. II 1997) (clearly and

unmistakably forbidding any state or local regulation relating

to the scheduling of interstate or intrastate transportation and

the rates incurred thereunder); 49 U.S.C. §14502(b)(3) (Supp.

If 1997) (clearly and unmistakably forbidding any state or

local ad valorem property tax on motor carrier transportation

26a

Appendix A

property at a rate higher than on other commercial and

industrial property in the same jurisdictional area). Moreover,

this construction is further compelled when one considers

that in related provisions contained in the ICCTA, Congress

expressly exempted from federal regulation “taxicab service”

(49 U.S.C. §13506(a)(2) (Supp. II 1997)) and motor carrier

transportation “incidental to transportation by aircraft”

(49 U.S.C. §13506(a)(8)(A) (Supp. II 1997)).

Furthermore, we note that section 13506(a)(2) of the

ICCTA exempts from federal regulation “a motor vehicle

providing taxicab service and having a capacity of not more

than 6 passengers and not operated on a regular route or

between specified places.” 49 U.S.C. §13506(a)(2) (Supp.

Il 1997). This exemption is a carryover from the former

Interstate Commerce Commission Act (49 U.S.C. §10102)

(repealed), which included an identical provision. See 49

U.S.C. §10526(a)(8)(A) (1995) (repealed). Construing that

provision, the Supreme Court concluded that Congress had

“left the field” of taxicab regulation “largely to the states”

because of the recognition that “(t]he operation of taxicabs

is a local business.” Buck v. California, 343 U.S. 99, 100,

102, 96 L. Ed. 775, 72 S. Ct. 502 (1952). Accordingly, the

Buck court upheld a California ordinance requiring taxi

drivers to pay an annual $1 for a driver’s permit, even though

those taxi drivers were transporting passengers across the

international border into Mexico because the “[o]peration

of taxicabs across state lines or international boundaries is

so closely related to the local situation.” Buck, 343 U.S. at

102. Congress provided no indication that it intended passage

of section 14505 to overturn Buck. Accordingly, based on

the reasoning in Buck, we hold that the “taxicab service”

27a

Appendix A

exemption contained in section 13506(a)(2) of the ICCTA

similarly leaves the field open for the levying of the airport

departure tax on taxicab and livery departures conducted by

the Class A members from O’Hare and Midway to

destinations in northern Indiana and southern Wisconsin.

We additionally note that section 13506(a)(8)(A) of the

ICCTA exempts from federal regulation the “transportation

of passengers by motor vehicle incidental to transportation

by aircraft.” 49 U.S.C. §13506(a)(8)(A) (Supp. II 1997). In

construing the identical exemption in the predecessor statute

(see 49 U.S.C. §10526(a)(8)(A) (repealed)), the federal court

in National Bus Traffic Ass'n v. U.S., 249 F. Supp. 869 (N.D.

Ill. 1965), held that motor carrier trips from airports located in

Washington, D.C., and Baltimore, Maryland, to cities in

surrounding states were “incidental to transportation by aircraft”

and thus outside the scope of federal regulatory authority under

the predecessor statute. National Bus, 249 F. Supp. at 873. The

National Bus court viewed the word “incidental” to mean “a

minor adjunct to the prime matter, of lesser significance,

but related and necessary to the complete effectuation of the

matter in chief.” National Bus, 249 F. Supp. at 873. In

upholding application of the exemption to trips from the

airports to destinations across the state lines, the National

Bus court reasoned: “Surely the final phase of the journey

on land from the airport where the plane descends to the city

where the air trip ends is incidental to the transportation by

air.” National Bus, 249 F. Supp. at 873. The same reasoning

applies in the present case. By their very nature, trips

provided by Class A from O’Hare and Midway to

destinations specified by the passengers beyond the Illinois

border are “a minor adjunct,” “of lesser significance,” and

: i

28a

Appendix A

“the final phase of the passengers’ air trips.” Thus, such

ground transportation trips are “ incidental to transportation

by aircraft” and are, therefore, beyond the scope of section

14505.

Moreover, as MPEA notes in its appellate brief, Chicago

is a major commercial center located in the far northeast

corner of Illinois. Its metropolitan area extends into

neighboring Wisconsin and Indiana, and O’Hare and Midway

serve as the major airports for residents in those areas. The

motor carrier trips in question from these airports, whether

to Chicago in I]linois, Kenosha in Wisconsin, or Hammond

in Indiana, simply enable those residents to reach their final

destinations. Congress, by reenacting the “incidental to

transportation by aircraft” exemption, plainly intended to

remove all such trips from the reach of the ICCTA. This

reasoning is buttressed by, with substantial deference given

to, regulations issued by the Department of Transportation

that expressly exempt all motor carrier departures from

O’Hare to northwest Indiana from federal regulatory

jurisdiction. See 49 C.F.R. §1047.45(d)(3) (1995).*

4. 49 C.F.R. §1047.45 states that the statutory incidental to air

exemption applies to

“the transportation of passengers who have had or will

have an immediately prior or immediately subsequent

movement by air.”

The scope of this exemption extends to trips within an

“area encompassed by a 25-mile radius of the boundary

of the airport at which the passengers arrive or depart

(Cont’d)

29a

Appendix A

In summary, section 14505(2) does not preempt the

Ordinance requiring the levying of the airport departure tax

upon either Class A or Class B because the text, structure,

and history of section 14505, as well as related provisions

in the ICCTA, indicate no congressional intent to preempt

taxes on motor carrier departures from airports to homes,

hotels, and businesses in communities served by those

airports, even if those communities are located in another

state. We therefore hold that the trial court erred in finding

that the levying of the airport departure tax against Class A

violates section 14505(2).

For the reasons stated, we affirm the circuit court’s order

granting summary judgment in favor of MPEA with respect

to Class B and we reverse the circuit court’s order granting

summary judgment in favor of plaintiffs with respect to

Class A.

Affirmed in part; reversed in part.

CAHILL, P.J., and WOLFSON, J., concur.

(Cont’d)

and by the boundaries of the commercial zones * * * of

any municipalities any part of whose commercial zones

: falls within the 25-mile radius of the pertinent airport.”

Further, for O’Hare, this area extends to an area reaching to

“points in Indiana on and north of U.S. Highway 30

and on and west of Indiana Highway 49.”

30a

APPENDIX B — ORDER OF THE CIRCUIT

COURT OF COOK COUNTY, ILLINOIS, COUNTY

DEPARTMENT, LAW (TAX) DIVISION

DATED AUGUST 12, 1998

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, LAW (TAX) DIVISION

No. 96 L 50112

Hon. John A. Ward

TRI-STATE COACH LINES, INC., et al.,

Plaintiffs,

VS.

METROPOLITAN PIER AND EXPOSITION AUTHORITY,

a body politic and municipal corporation,

Defendant.

ORDER

This matter comes before this Court on the cross motions

of the parties for summary judgment and related issues. The

Court has considered all pleadings and the arguments of the

parties and makes the following findings and enters the

following orders:

FINDINGS OF FACT

There are no genuine issues of material fact that would

prevent this court from ruling on the parties cross-motions

3la

Appendix B

for summary judgment. (735 ILCS 5/2-1005). In fact, all

material facts are uncontested.

1. All class representatives are ground transportation

operators engaged in the business of transporting passengers

for-hire. They transport passengers by motor vehicle from

O’Hare and Midway airports and they have been assessed

and have paid the Airport Departure Tax that is the subject

of this litigation.

2. The class representatives for Class A Plaintiffs

transport passengers from the airports to destinations outside

Illinois thereby crossing one or more state lines en route.

3. The class representatives for Class B Plaintiffs

transport passengers from the airports to destinations within

Illinois. The class representatives for Class B(1) Plaintiffs

service passengers who have prearranged their ground

transportation themselves, or through third party enterprises,

as part of their interstate travel plans. The Class B(2)

Plaintiffs differ from the Class B(1) Plaintiffs in that their

prearrangement is accomplished by their purchase of a single

through ticket combining the interstate air carrier service with

the ground transportation service from the airport, pursuant

to a motor carrier and airline joint master purchase of service

agreement.

4. The Court has certified Classes A and B(1) and B(2)

and has also ruled that so called “opt-out” notice of this

proceeding need not be given to all class members since

issues of law predominate, there is no apparent conflict of

interest among class members, and the classes are represented

by competent and experienced counsel.

32a

Appendix B

5. The Defendant (““MPEA’”’) is a political subdivision

of local government, a body politic, and a municipal

corporation.

6. The Powers of the MPEA are set forth in the

Metropolitan Pier and Exposition Authority Act (70 ILCS

210/1 et. seq.) (“Act”).

7. The Act (Section 13(f), 70 ILCS 210/13(f)) empowers

the MPEA to impose by ordinance, an Airport Departure

Tax on taxis, livery vehicles, buses and vans carrying

passengers for hire from commercial service airports in the

Chicago metropolitan area, rega.dless of destination.

Pursuant to that statute, the MPEA enacted an ordinance to

collect the Airport Departure Tax from all commercial

vehicles departing the airport with passengers for hire,

regardless of destination.

8. The MPEA began collecting the Airport Departure

Tax on January 1, 1993 and, through its collection agent,

the City of Chicago Department of Revenue, continues to

make assessments and collections to date.

9. Section 14505 of the ICC Termination Act of 1995

(cite), Pub. L. No. 104-88, enacted December 29, 1995,

effective January 1, 1996, provides in its entirety as follows:

A State or political subdivision thereof may

not collect or levy a tax fee, head charge, or other

charges on —

(1) a passenger traveling in interstate

commerce by motor carrier;

hseeeeereeeernenmeeenenememeenenseiieaiiieiiaiemiiel

bE A + ee

33a

Appendix B

(2) the transportation of a passenger

traveling in interstate commerce by

motor carrier;

(3) the sale of passenger transportation

in interstate commerce by motor

carrier; or

(4) the gross receipts derived from such

transportation.

10. The Court finds that the language of §14505(2) of

the ICC Termination Act is clear and unambiguous.

CONCLUSIONS OF LAW

1. Any state statute or local ordinance that imposes a

tax on the transportation of a passenger traveling in interstate

commerce by motor carrier is preempted and rendered

unlawful by §14505 on and after its effective date, J anuary

1, 1996.

2. Only those ground transportation operators who

transport passengers to destinations outside Illinois transport

passengers who travel in interstate commerce by motor

carrier under Section 14505(2) of the ICC Termination Act

of 1995. The Court bases its decision on its discussion of

the issues and controlling precedent set forth in its Order of

May 2, 1997, a copy of which is attached as Exhibit A.

WHEREFORE, for the above and foregoing reasons as

well as those expressed in this Court’s order of May 2, 1997,

34a

Appendix B

IT IS HEREBY ORDERED THAT:

1. Summary Judgment is granted in favor of the Class

A Plaintiffs.

2. Summary Judgment is granted in favor of the

Defendant MPEA on Class B(1) and Class B(2).

3. The MPEA shall cease collections of the Airport

Departure Tax from Class A plaintiffs and is further ordered

to submit a proposed plan to this Court within sixty (60)

days concerning the refund of amounts paid to the MPEA

by members of Class A on and after January 1, 1996, and

any interest that may be owed on such amounts, subject to

approval by this Court in accordance with its subsequent

order.

4. Paragraph three (3) of this order is stayed for thirty

(30) days pending exercise of the parties right to appeal.

5. The Court expressly finds that this order does not

resolve all the claims made by the parties and there is no

just reason for delaying the appeal of this order pursuant to

the provisions of Illinois Supreme Court Rule 304(a).

Enter:

s/ John A. Ward

Hon. John A. Ward, Circuit Judge

; 35a

APPENDIX C — AGREED ORDER OF THE CIRCUIT

COURT OF COOK COUNTY, ILLINOIS COUNTY

DEPARTMENT, LAW (TAX) DIVISION

DATED NOVEMBER 17, 1997

Firm No. 52987

| IN THE CIRCUIT COURT OF COOK COUNTY,

ILLINOIS COUNTY DEPARTMENT,

LAW (TAX) DIVISION

No. 96 L 50112

Hon. John A. Ward

TRI-STATE COACH LINES, INC., et ai.,

Plaintiffs,

VS.

METROPOLITAN PIER AND EXPOSITION

AUTHORITY, a body politic and municipal corporation,

Defendant.

AGREED ORDER

This matter coming to be heard on Plaintiffs’ Amended

Motion For Determination That Cause May Be Maintained

As A Class Action And For Certification Of Classes Pursuant

To Section 2-802 Of The Code Of Civil Procedure, due notice

having been provided to all parties entitled, the parties being

in agreement, and the court being fully advised in the

premises, It Is HEREBY ORDERED As FoLLows:

36a

Appendix C

1. This cause may proceed as a class action;

2. The court certifies the following as the member

classes in this cause:

Class A: All ground transportation operators

subject to the Airport Departure Tax who are

engaged in the business of providing ground

transportation for-hire, to the extent that they are

taxed on the act of departing O’Hare or Midway

Airports with passengers for-hire for destinations

outside Illinois, including, but not limited to,

Plaintiffs Tri-State Coach Lines, Inc., Sam Van

Galder, Inc., and Advantage Limousine, Inc.

Class B(1): All ground transportation operators

subject to the Airport Departure Tax who are

engaged in the business of providing ground

transportation for-hire, to the extent that they are

taxed on the act of departing O’Hare or Midway

Airports with passengers for-hire for destinations

within Illinois, where the passengers have

prearranged their ground transportation as part of

interstate and/or foreign travel by air but do not

qualify under Class B(2), including, but not

limited to, Plaintiffs Tri-State Coach Lines, Inc.,

and Sam Van Galder, Inc.

Class B(2): All ground transportation operators

subject to the Airport Departure Tax who are

engaged in the business of providing ground

transportation for-hire, to the extent that they are

st i cmama ri accent

37a

Appendix C

taxed on the act of departing O’Hare or Midway

Airports with passengers for-hire for destinations

within Illinois, where the passengers are traveling

on a through ticket pursuant to a motor carrier

and airline master purchase of service agreement

embracing both interstate and/or foreign travel by

air and the motor carrier transportation, including,

but not limited to. Plaintiffs Tri-State Coach

Lines, Inc., and Sam Van Galder, Inc.; and

3. The cause is set for status on Tuesday, December 16,

1997, at 2:00 PM, in room 1407 of the Richard J. Daley

Center.

ENTER: NOV 17 1997

s/ John A. Ward

JUDGE JOHN A. WARD

38a .

APPENDIX D — ORDER OF THE CIRCUIT COURT

OF COOK COUNTY, COUNTY DEPARTMENT, LAW

DIVISION, TAX AND MISCELLANEOUS REMEDIES

SECTION DATED MAY 2, 1997

IN THE CIRCUIT COURT OF COOK COUNTY,

COUNTY DEPARTMENT, LAW DIVISION

TAX AND MISCELLANEOUS REMEDIES SECTION

96 L 50112

TRI-STATE COACH LINES, INC., et al.,

Plaintiffs,

vs.

METROPOLITAN PIER AND EXPOSITION

AUTHORITY,

Defendant.

ORDER

This matter is before the court on the motion for

judgment on the pleadings of the defendant Metropolitan Pier

and Exposition Authority (““MPEA”). For the following

reasons, the motion for judgment is allowed in part and

denied in part.

Background

This court previously denied the plaintiffs’ amended

motion for a preliminary injunction and, in the order denying

39a

Appendix D

that motion, set forth the following background to this

litigation:

In 1992, the Metropolitan Pier and Exposition

Authority Act, 70 ILCS 210/1, et seg., was

amended to authorize the expansion of

McCormick Place. As part of the scheme to fund

the expansion, the legislature directed the MPEA

to impose several new taxes, including taxes on

hotels and restaurants in or near downtown

Chicago-as well as the Departure Tax at issue

here. To this end, Section 13(f) was enacted and

provides, in part, that “[b]y ordinance the

Authority shall * * * impose an occupation tax

on all persons, other than a governmental agency,

engaged in the business of providing ground _

transportation for hire to passengers in the

metropolitan area * * *.” 70 ILCS 210/13(f) (West

1994). Pursuant to this grant, MPEA enacted by

ordinance the Departure Tax in 1993.

In its short life, the Departure Tax has drawn

two prior court challenges. In Allegro v.

Metropolitan Pier, No. 78806 (March 28, 1996),

which was brought by some of the same plaintiffs

as in this case, the Illinois Supreme Court found

that the tax did not violate either the Commerce

Clause of the United States Constitution or the

Uniformity Clause of our state Constitution. In

Terry v. Metropolitan Pier, 271 Il.App.3d 446

(Ist Dist., 1995), the Appellate Court rejected

similar claims brought by different plaintiffs.

40a

Appendix D

Legal Framework For Motion On The Pleadings

“A motion for judgment on the pleadings is a type of

motion ‘with respect to pleadings’ as provided for by section

2-615 of the Code of Civil Procedure, subsection (e) of which

states that ‘fa]ny party may seasonably move for judgment

on the pleadings.’ ” Daymon v. Hardin County General Hosp.,

210 Lil. App. 3d 927, 932 (Sth Dist. 1991); Pioneer Bank &

Trust Co. v. Austin Bank of Chicago, 279 Ill. App. 3d 9, 13

(1* Dist. 1996). “A motion for judgment on the pleadings

attacks, as a matter of law, the sufficiency of plaintiff's

complaint to state a cause of action.” Foley v. Santa Fe

Pacific Corp., 267 Ill.App.3d 555, 560 (1* Dist 1994). Thus,

‘*... the purpose of a motion for judgment on the pleadings

is to test the sufficiency of the pleadings by determining

whether the plaintiff is entitled to the relief sought by its

complaint ....” Millers’ Mutual Insurance v. Graham Oil

Co., 282 Ill.App.3d 129, 134 (2d Dist. 1996) (citing Granville

National Bank v. Alleman, 237 Il.App.3d 890, 894 (1992)).

“The failure of a complaint to state a cause of action is a

fundamental defect which may be raised at any time by any

means and cannot be waived.” Foley, 267 Ill.App.3d at 560.

“It is a well-settled rule that, when a complaint totally fails

to state a cause of action, its insufficiency can be questioned

at any time for ‘there is a substantial and material difference

between alleging a good cause of action in a defective manner

and in stating no cause of action.’ ” /d.

“It is well established that, where the court can determine

the relative rights of the parties in the subject matter solely

from the pleadings, a motion for judgment on the pleadings

;

4la

Appendix D

is a proper procedure.” Bank & Trust of Arlington Heights

v. Arnold N. May Builders, Inc., 90 Ill.App.3d 454, 456

(2d Dist. 1980). However, “[j]udgment on the pleadings is

proper only if questions of law, and not of fact, exist after

the pleadings have been filed.” Millers’ Mutual, 282

Ill.App.3d at 134; Bulatovic v. Dobritchanin, 252 Ill.App.3d

122, 127 (1* Dist. 1993). “[I]f the pleadings put in issue one

or more material facts, evidence must be taken to resolve

such issues, and a judgment may not be entered on the

pleadings.” Bank & Trust of Arlington Heights, 90 Ill. App.3d

at 456. “[T]he court is to ascertain whether there is an issue

of material fact presented by the pleadings, and if there is no

such issue, the question is which party is entitled to

judgment.” Pioneer Bank & Trust Co. v. Austin Bank of

Chicago, 279 Ill. App. 3d 9, 13 (1* Dist. 1996); Daymon,

210 Ill. App. 3d at 932.

“The only matter to be considered in ruling on such a

motion is the allegations of the pleadings.” Pioneer Bank &

Trust, 279 Ill. App. 3d at 13. “A motion for judgment on the

pleadings admits the truth of all well pleaded facts in the

complaint and challenges only the legal sufficiency of the

pleading[s].” Romano v. Village of Glenview, 277 Ill.App.3d

406, 409 (1* Dist. 1995); Bulatovic, 252 Ill.App.3d at 127.

“The question thus presented is whether those pleadings,

construed most strongly against the movant, nevertheless

show that there is no factual issue which, if determined

against the movant, would prevent entry of judgment on

behalf of the movant.” Pioneer Bank & Trust, 279 Ill. App.

3d at 13; Daymon, 210 Ill. App. 3d at 932.

“The grant of a motion under section 2-615 is appropriate

only where plaintiff's complaint is legally insufficient such

42a

Appendix D

that plaintiff can prove no set of facts that would entitle it to

relief.” Abbott Interfast Corp. v. Harkabus, 250 Ill. App. 3d

13, 16 (2d Dist. 1993). In making its determination, “[the

court] must examine all the pleadings on file, taking as true

the well-pleaded facts, and reasonable inferences to be drawn

therefrom, set forth in the pleadings of the opposing party.”

Millers’ Mutual, 282 Ill.App.3d at 134 (citing Tim Thompson,

Inc. v. Village of Hinsdale, 247 Ill.App.3d 863, 890 (1993));

see also, Foley, 267 Ill.App.3d at 560; Burdinie v. Village

of Glendale Heights, 139 Ill.2d 501, 505 (1990).

Nevertheless, “. . . a court must disregard all surplusage and

conclusory allegations.” Bank & Trust of Arlington Heights,

90 Ill. App.3d at 456-57.

Discussion

The parties agree that there are no factual issues relating

to whether the complaint states a cause of action, only legal

issues. As to those legal issues, the respective positions of

the parties have been staked out previously in the context of

the plaintiffs’ amended motion for preliminary injunction.

Both parties have broken down the legal issues along the

lines of plaintiffs’ two proposed classes of those who provide

transportation services from the Airports and are assessed

under the Departure Tax, proposed Class A and proposed

Class B. Proposed Class A consists of those who provide

transportation services from the Airports to destinations in

Wisconsin and Indiana. Proposed Class B consists of those

who provide transportation services from the Airports to

destinations within Illinois for passengers who have

prearranged these services.

43a

Appendix D

It is the position of the MEPA that the complaint fails to

state a cause of action since imposition of the Departure Tax

on the proposed classes does not violate §14505(2) of the

ICC Termination Act of 1995, 49 U.S.C. §13-1 et seq., upon

which the amended complaint relies. §14505, which became

effective January 1, 1996, provides as follows:

A State or political subdivision thereof may not

collect or levy a tax, fee, head charge, or other

charge on —

(1) a passenger traveling in interstate

commerce by motor carrier;

(2) the transportation of a passenger

traveling in interstate commerce by

motor carrier;

(3) the sale of passenger transportation

in interstate commerce by motor Carrier;

(4) the gross receipts derived from such

transportation.

As to proposed Class A, the MPEA argues that the court

must construe §14505(2) so that the scope of this provision

is limited to the same parameters as is the scope of the

jurisdiction of the Secretary and Board of the Surface

Transportation Board, the successor agency to the ICC.

Chapter 135 of the ICC Termination Act is entitled,

“Jurisdiction” and this chapter contains several exclusions

44a

Appendix D

from the regulatory jurisdiction of the Secretary and Board

which the MPEA urges should be engrafted onto the reach

of §14505(2). §14505(2) is not contained within Chapter 135,

but rather is part of Chapter 145, entitled “Federal-State

Relations.” As to proposed Class B, the MPEA argues that

the language of §14505(2) clearly and explicitly prohibits

local taxation on transportation services only to the extent

that such services involve passengers “traveling in interstate

commerce by motor carrier.” Because those in proposed

Class B provide services wholly within Illinois, the MPEA

contends that the complaint fails to allege a violation of

§14505(2) by imposition of the Departure Tax on those in

this class.

The plaintiffs argue that the complaint states a cause of

action as to both classes. As to proposed Class A, the

plaintiffs argue that the language of §14505(2) is

unambiguous and prohibits local taxation on “the

transportation of a passenger traveling in interstate commerce

by motor carrier.” Since the travel provided by those in

proposed Class A is between the Airports to destinations

outside Illinois, the plaintiffs maintain that the complaint

states a cause of action. As to proposed Class B, the plaintiffs

maintain that the court must interpret the term “interstate

commerce” as used in §14505(2) so as to include the

passengers who prearranged their ground transportation

services from the Airports. According to plaintiffs, such

passengers are traveling in interstate commerce because of

the fact that the great majority of them began the air

transportation leg of their trips outside of Illinois.

In the court’s view, both parties are correct when each

argues at various points that the language of §14505(2) is

45a

Appendix D

clear and unambiguous and both parties are wrong when at

other points each argues the court must construe this section

by reference to other chapters of the ICC Termination Act

or case law interpreting the scope of “interstate commerce.”

The court finds, for present purposes, that the language of

§14505(2) is clear and unambiguous and does not require

that this court “look beyond the plain language of the federal

statute to determine whether a state statute that imposes such

a tax is pre-empted.” Aloha Airlines v. Hawaii ( 1983), 464

US 7, 12 (Footnote omitted.)

Examining the text of §14505(2), two things of particular

significance here are immediately apparent. The first is that

this section fails to explicitly incorporate the exclusions to

federal jurisdiction contained in Chapter 135. That other

sections of Chapter 145 such as §14501(a), §14503, and

§14504(b) do incorporate these exclusions heightens the

significance of the absence of incorporation in §14505(2).

Without the exclusions of Chapter 135 being read into

§14505(2), the court concludes that the complaint alleges a

cause of action under §14505(2) in regard to proposed Class

A, since the transportation provided by that class by motor

carrier crosses state lines. The motion for judgment on the

pleadings is denied as to proposed Class A.

The second factor of particular significance is that

§14505(2) only prohibits the local taxation of those services

involving “traveling in interstate commerce by motor

carrier.” In other words, in order to state a cause of action

based on a violation of §14505(2), a party must allege that

passengers are transported between states by motor carrier.

In regard to proposed Class B, the court concludes that the

46a

Appendix D

complaint fails to state a cause of action for violation of

§14505(2) since the transportation services provided by those

in this proposed class occur wholly within Illinois. Therefore,

the court concludes that the Departure Tax imposed on these

services does not violate §14505(2) and the complaint must

be dismissed to the extent it alleges a cause of action based

on such intrastate transportation by motor carrier.

In ruling on the motion for judgment on the pleadings,

the court is mindful that there has not been a hearing on the

plaintiffs’ motion requesting that this action be maintained

as a Class action nor on the motion for class certification.

While it may be generally the better practice to rule on such

motions before considering potentially dispositive motions

such as a motion for judgment on the pleadings, such a

practice is not required. In Schlessinger v. Olsen, 86 I1l.2d

314, 320 (1981), the Supreme Court held that “. . . where a

motion to dismiss is made by a defendant, thereby placing

in issue the sufficiency of a complaint, a trial court need not

delay deciding the motion until the certification question has

been resolved.” The Court found that such a procedure may

be justified because “... the time and expense consumed

through discovery, litigating the requirements for

certification, and notification of class members, may all be

avoided by a prompt consideration of a motion to dismiss

the complaint.” Schlessinger, 86 I1l.2d, at 320. In this case,

determination of the motion to dismiss prior to the motions

to proceed as a class action and for class certification is

justified by the economies realized by dismissal of the

complaint relative to proposed Class B.

47a

Appendix D

CONCLUSION

For the reasons set forth above, the defendant’s motion

for judgment on the pleadings is granted as to proposed Class

B and is denied as to proposed Class A.

s/ John A. Ward

John A. Ward

Date: May 2, 1997

48a

APPENDIX E — ORDER OF THE CIRCUIT COURT

OF COOK COUNTY, COUNTY DEPARTMENT, LAW

DIVISION, TAX AND MISCELLANEOUS REMEDIES

SECTION DENYING AMENDED MOTION FOR

PRELIMINARY INJUNCTION DATED MAY 22, 1996

IN THE CIRCUIT COURT OF COOK COUNTY

COUNTY DEPARTMENT, LAW DIVISION

TAX AND MISCELLANEOUS REMEDIES SECTION

96 L 50112

TRI-STATE COACH LINES, INC., et al.,

Plaintiffs,

VS.

METROPOLITAN PIER AND EXPOSITION

AUTHORITY,

Defendant.

ORDER DENYING AMENDED MOTION

FOR PRELIMINARY INJUNCTION

This matter is before the court on the plaintiffs’ amended

motion for a preliminary injunction. In this motion, the

plaintiffs seek to restrain the defendant Metropolitan Pier

and Exposition Authority (“MPEA”) from collecting the

Airport Departure Tax based on Section 14505 of the

Interstate Commerce Commission Termination Act of 1995.

For the reasons set forth below, the motion for a preliminary

injunction is denied.

49a

Appendix E

Background

In 1992, the Metropolitan Pier and Exposition Authority

Act, 70 ILCS 210/1, et seg., was amended to authorize the

expansion of McCormick Place. As part of the scheme to

fund the expansion, the legislature directed the MPEA to

impose several new taxes, including taxes on hotels and

restaurants in or near downtown Chicago as well as the

Departure Tax at issue here. To this end, Section 13(f) was

enacted and provides, in part, that “[b]y ordinance the

Authority shall * * * impose an occupation tax on all persons,

other than a governmental agency, engaged in the business

of providing ground transportation for hire to passengers in

the metropolitan area * * *.” 70 ILCS 210/13(f) (West 1994).

Pursuant to this grant, MPEA enacted by ordinance the

Departure Tax in 1993.

In its short life, the Departure Tax has drawn two prior

court challenges. In Allegro v. Metropolitan Pier, No. 78806

(March 28, 1996), which was brought by some of the same

plaintiffs as in this case, the Illinois Supreme Court found

that the tax did not violate either the Commerce Clause of

the United States Constitution or the Uniformity Clause of

our state Constitution. In Terry v. Metropolitan Pier, 271

Ill.App.3d 446 (1st Dist., 1995), the Appellate Court rejected

similar claims brought by different plaintiffs.

Plaintiffs Claimed Basis for Injunctive Relief

Here, the plaintiffs’ challenge to the Departure Tax is

based not on a constitutional provision, but on a ground not

raised in either Allegro or Terry, namely Section 14505 of

50a

Appendix E

the Interstate Commerce Commission Termination Act of

1995, P.L. 104-88, 109 Stat. 803. That section, which became

effective January 1, 1996, provides as follows:

A State or political subdivision thereof may not

collect or levy a tax, fee, head charge, or other

charge on —

(1) a passenger traveling in interstate

commerce by motor carrier;

(2) the transportation of a passenger

traveling in interstate commerce by

motor carrier;

(3) the sale of passenger transportation

in interstate commerce by motor carrier;

(4) the gross receipts derived from such

transportation.

The plaintiffs allege that the clear language of Section

14505(2) protects from local taxation the activities of each

proposed class of plaintiffs. Plaintiffs’ proposed Class A

consists of those who provide for-hire ground transportation

for passengers from the Airports to destinations outside of

Illinois. Plaintiffs’ proposed Class B consists of those who

provide for-hire ground transportation from the Airports to

destinations within Illinois for passengers who have

prearranged their rides. As to both, the plaintiffs maintain

that these passengers are travelling in interstate commerce

Sla

Appendix E

by motor carrier and accordingly may not be taxed by the

MPEA.

Position of MPEA in Opposition to Motion

It is the principle position of the MPEA that Section

14505 was intended to apply, if at all, to a small fraction of

the ground transportation services subject to the Departure

Tax. The plaintiffs have more specifically framed their

contentions in opposition to the amended motion for a

preliminary injunction in the form of the four elements

necessary for injunctive relief. The MPEA argues that the

plaintiffs have failed to show the following: 1) a reasonable

likelihood of success on the merits; 2) the absence of an

adequate remedy at law and irreparable harm if the relief is

not granted; 3) the threatened injury will be immediate,

certain, and great if the injunction is denied, while the loss

or inconvenience to the defendant is comparatively small

and insignificant if granted; and 4) there will be no injurious

effect to the general public if the injunction is granted.

Discussion

In the court’s view, there is one predominant issue

presented and this issue runs through and touches upon each

of the four elements which must be proven in order for a

preliminary injunction to issue. That issue is, quite simply,

the proper construction to be accorded Section 14505. The

framework for construing a legislative provision such as

Section 14505 is well-formed and has been expressed in the

following fashion:

52a

Appendix E

In strictly construing the similar provisions of the

Use Tax Act and the ROTA, the primary rule is

to ascertain and give effect to the intention of the

legislature, and that inquiry must begin with the

language of the statute. (Canteen Corp. v.

Department of Revenue (1988), 123 Ill.2d 95, 104,

121 [ll.Dec. 267, 525 N.E.2d 73; Metropolitan

Life Insurance Co. v. Washburn (1986), 112 Ill.2d

486, 492, 98 Ill.Dec. 50, 493 N.E.2d 1071.) In

addition to considering the language of the statute,

a court may properly consider the purposes to be

attained by the law, the necessity for the law and

the evils sought to be remedied.. (Canteen Corp.,

123 Ill.2d at 104, 121 Ill.Dec. 267, 525 N.E.2d

73; Stewart v. Industrial Comm’n (1987), 115

I11.2d 337, 341, 105 Ill.Dec. 215, 504 N.E.2d 84.)

The legislative history or background of a statute

(e.g., legislative committee reports as well as

House and Senate floor debates) may be an

instructive resource in ascertaining the legislative

intent. (Chicago Tribune Co. v. Johnson (1985),

106 Ill.2d 63, 69, 87 Ill.Dec. 505, 477 N.E.2d

482.)

Van's Material Service v. Department of Revenue (1989),

131 Il.2d 196, 202-3.

Additionally, in ascertaining the legislative intent, it is

proper to consider the circumstances leading up to the

enactment of the statutory provision, as well as the language

used in the act. Follett’s Book & Supply Store, Inc. v. Isaacs

(1963), 27 I1l.2d 600, 604. A final cardinal rule of

53a

Appendix E

construction which has particular significance here is that

each section of an act subject to two conflicting interpretations

should be accorded the interpretation which is more

harmonious with the general purpose of the act:

The policies underlying a statute are often

regarded as a valuable source of legislative intent.

Examination of the reason and necessity for the

law, the evils which the legislature sought to

remedy and the purposes intended to be

acccmplished is particularly important in cases

such as this, where the statutory language is not

clear. This court will presume that the legislature

had a definite purpose in enacting the statute and

drafted the statute so that each part would be in

harmony with that purpose. From this presumption

proceeds the rule that the general purpose of the

whole act shall control and that all the parts shall

be interpreted consistently with this purpose. If

the language of a statute is susceptible to two

constructions, one of which will carry out its

purpose and another which will defeat it, the

statute will receive the former construction.

Harvel v. City of Johnston City (1992), 146 Ill. 2d 277,

283-84. (Citations omitted.)

The key to the proper construction to be afforded Section

14505 here centers on the term “travelling in interstate

commerce by motor carrier.” Section 14505(2), which the

plaintiffs rely upon in their motion, prohibits a tax, fee, head

charge or other charge on the transportation of a passenger

54a

Appendix E

“travelling in interstate commerce by motor carrier.” Both

parties contend that this term is clear and unambiguous, but

the problem for the court is that the parties suggest entirely

different and contrary meanings.

The plaintiffs propose a construction of this term which

would give broad application to Section 14505’s ban on local

taxation for ground services. This construction is premised

on the notion that “interstate commerce” was intended by

Congress to be given the same meaning as in the context of

a constitutional challenge under the Commerce Clause. If

“interstate commerce” is understood in this fashion, then

Section 14505 would apply not only to those who provide

transportation from the Airports to destinations outside

Illinois, but also to those who provide transportation from

the Airports to destinations within Illinois if such

transportation was prearranged. In other words, plaintiffs

suggest that Congress intended through Section 14505(2) to

prohibit any local tax on the transportation by motor carrier

of a passenger travelling between states, even if the actual

interstate travel is by air carrier and the only transportation

by motor carrier is intrastate travel which is prearranged.

The MPEA argues that this phrase was intended to

prohibit local tax on the transportation of a much narrower

group of travellers, that is, those who are brought from one

state to another by way of mctor carrier. Under this

construction, “by motor carrier” serves to modify and limit

the type of interstate travel which was the concern of

Congress. In support of this argument, the MPEA relies on

the legislative history to Section 14505 and other provisions

in the ICC Termination Act which reflect the intent of

55a

Appendix E

Congress to limit the scope of the act well below its

constitutional grant of authority to regulate commerce

between the states.

The court agrees with the MPEA that the proper

construction of the phrase “travelling in interstate commerce

by motor carrier.” requires that the transportation between

states be accomplished by motor carrier. The proper place

to begin construction of this phrase is prior to the decision

by the Supreme Court in Oklahoma Tax Comm'n. v. Jefferson

Lines, Inc., 115 S.Ct. 1331 (1995). Before Jefferson Lines,

it was understood that a state or local entity generally could

not impose a tax on the transportation of interstate passengers

by motor carrier based on the decision in 1948 of the Court

in Central Greyhound Lines, Inc. v. Mealey, 334 U.S. 653

(1948). In that decision, the Court struck down a New York

tax on the interstate transportation of passengers which was

assessed as 2% of the gross receipts which were defined as

the “receipts received ... by reason of any sale . . . made”

in that state. 334 U.S. at 664. The Court found that this

provision violated the Commerce Clause because by “its very

nature an unapportioned gross receipts tax makes interstate

transportation bear more than ‘a fair share of the cost of the

local government whose protection it enjoys.’ ” 334 U.S. at

663 (quoting Freeman v. Hewit, 329 U.S. 249, 253 (1946)).

Nearly 50 years after the decision in Central Greyhound,

the Court decided Jefferson Lines. Oklahoma had a sales tax

on goods and services which amounted to 4% on the “gross

receipts or gross proceeds of each sale” 115 S.Ct. 1347. The

respondent Jefferson Lines, Inc. collected and remitted the

tax for bus travel within Oklahoma, but did not do so for bus

travel from Oklahoma to other states. After Jefferson Lines

56a

Appendix E

filed for bankruptcy protection, Oklahoma claimed the

unpaid taxes relating to sales of tickets for interstate travel.

First the Bankruptcy Court, then the District Court and finally

the Court of Appeals found that the tax, as applied to

interstate travel, violated the Commerce Clause. “The Court

of Appeals understood its holding to be compelled by” the

decision in Central Greyhound. 115 S.Ct. at 1335. However,

the Supreme Court reversed, finding that the Commerce

Clause was not violated by the Oklahoma tax. This result

was widely seen as a departure from the holding in Central

Greyhound. In his dissent, Justice Breyer expressed this

change as follows: “Despite the Court’s lucid and thorough

discussion of the relevant law, I am unable to join in its

conclusion for one simple reason. Like the judges of the

Court of Appeals, I believe the tax at issue here and the tax

that the Court held unconstitutional in Central Greyhound

Lines, Inc. v. Mealey, 334 U.S. 653 (1948), are, for all

relevant purposes, identical.” 115 S.Ct. at 1346.

It was within this climate that Congress took up the

business of Section 14505, and the legislative history of this

section makes certain that Congress’ intent in enacting

Section 14505 was to “undo” the result in Jefferson Lines.

The Conference Report relative to Section 14505 states:

Sec. 14505. State tax. This section prohibits a

State or political subdivision of a State from

levying a tax on bus tickets for interstate travel.

This reverses a recent Supreme Court decision

permitting States to do so and conforms taxation

of bus tickets to that of airline tickets.

Conf.Rep. 104-422, at 220.

57a

Appendix E

There would be no art in statutory construction if there

was always legislative history directed so precisely at the

issue involved. Section 14505 was intended to remedy a

“particular evil,” namely, the decision in Jefferson Lines

allowing local taxation of purely interstate travel by motor

carrier. Congress, by legislative enactment, attempted to

restore the same balance between interstate commerce and

local taxation which had been fixed by constitutional

interpretation of the Commerce Clause prior to the decision

in Jefferson Lines.

Because this history reveals that the exclusive focus of

Congress in enacting this section was on motor carrier

transportation between the states, it follows that Congress

did not intend Section 14505 to apply to intrastate travel,

even if such travel was on a prearranged basis and followed

an interstate air flight. Therefore, the court finds that Section

14505 has no application to the type of travel represented

by proposed Class B, that is, from the Airports to destinations

within Illinois on a prearranged basis.

As to the type of travel represented by proposed Class

A, travel from the Airports to destinations outside Illinois

by motor carrier, analysis of the ICC Termination Act must

be carried a further step to determine if Congress intended

Section 14505 to apply.

Before Jefferson Lines, there was no statutory equivalent

to Section 14505 contained in the former ICC Act. Thus, a

local entity could impose a tax such as the Destination Tax

provided that the tax did not violate the Commerce Clause.

E.g., Allegro v. Metropolitan Pier, No. 78806 (Ill. S.Ct.,

58a

Appendix E

March 28, 1996). In fact, the former ICC Act contained a

provision which specifically exempted from that act

“transportation of passengers by motor vehicle incidental to

transportation by aircraft.” 49 U.S.C. Section 10526(a)(8)(A)

(1995). The ICC interpreted this provision to exempt from

its jurisdiction ground travel from an airport to a destination

within 25 miles of the airport or related “commercial Zone,”

even if the travel was between states. 49 C.F.R. Section

1047.45(d)(3) (1995). Even beyond this 25 mile area, certain

other interstate transportation was regarded as incidental to

air travel, including travel between O’Hare and Northern

Indiana.

Congress was surely aware of the existing scope of

federal regulation when, in enacting the ICC Termination

Act, it carried forward numerous provisions from the ICC

Act, including the exemption for “transportation of

passengers by motor vehicle incidental to transportation by

aircraft” contained in Section 13506(a)(8)(A). In the court’s

view, this verbatim enactment of a former provision of the

ICC Act reveals a Congressional intent to hold a consistent

course relative to local regulation of ground services

incidental to interstate air travel.

The court believes that Section 14505 must be construed

in a manner consistent with the intent of Congress not to

federally regulate ground transportation incidental to airline

travel. Stated in the converse, there is nothing to suggest

that Congress intended to prohibit by enactment of Section

14505 the local taxation of ground services incidental to air

travel which had been allowed under the ICC Act. As a

consequence, as to the type of travel represented by proposed

59a

Appendix E

Class A, the application of Section 14505 is limited to the

transportation of passengers from the Airports to destinations

outside Illinois which is not incidental to air travel.

From the affidavits submitted in support of the motion

for a preliminary injunction, the plaintiffs have not shown

that the travel from the Airports to destinations outside

Illinois was not “incidental to transportation by aircraft.”

The affiants of 4 of the 5 supporting affidavits merely state

that a given percentage of their business consists of

transporting passengers “from the Airports to points beyond

Illinois.” The fifth affiant, John McCoy, stated that his

employer, Advantage Limousine, Inc., transported

passengers “from O’ Hare or Midway airports . . . to locations

in Indiana.” Consequently, the plaintiff is not entitled to

preliminary injunctive relief as to proposed Class A.

CONCLUSION

For the reasons set forth above, the plaintiffs’ motion

for preliminary injunctive relief is denied.

s/ John A. Ward

John A. Ward

Date: May 22, 1996

ne ee

60a

APPENDIX F — LETTER OF THE SUPREME COURT |

OF ILLINOIS DENYING PETITION FOR LEAVE TO |

APPEAL DATED OCTOBER 4, 2000

SUPREME COURT OF ILLINOIS |

CLERK OF THE COURT |

SUPREME COURT BUILDING

SPRINGFIELD, ILLINOIS 62701

(217) 782-2035

October 4, 2000

Mr. James Geis

Attorney at Law

5647 S. Drexel Ave.

Chicago, IL 60637

No. 89989 — Tri-State Coach Lines, Inc., et al., petitioners,

v. Metropolitan Pier and Exposition Authority,

etc., respondent. Leave to appeal, Appellate

Court, First District.

The Supreme Court today DENIED the petition for leave

to appeal in the above entitled cause.

The mandate of this Court will issue to the Appellate

Court on October 26, 2000.

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.