Petition for Writ of Certiorari — Village of Mundelein, Illinois v. Wisconsin Central Railroad (No. 07-1355)

Supreme Court US.

OD 071355 APR 24 2008

No. ———_ OFFICE @F THE CLERK

In The

Supreme Court of the Anited States

THE VILLAGE OF MUNDELEIN, ILLINOIS,

Petitioner,

Vv.

WISCONSIN CENTRAL RAILROAD,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Illinois

PETITION FOR WRIT OF CERTIORARI

CHARLES F’. MARINO LANt L.. WILLIAMS

ATTORNEY FOR THE VILLAGE OF Counsel of Record

MUNDELEIN, ILLINOIS LocaL GOVERNMENT LAWYER'S

100 W. Monroe STREET ROUNDTABLE

Surre902 N67W32480 JORGENSON CouRT

Cuicaco, IL 60603 Oconomowoc, WI 53066

(312) 236-4260 (262) 966-7436

LAWRENCE R. LALUZERNE

SMITH & LALUZERNE, LTp.

209 W. MapIson STREET, 2ND FLOOR

WAUKEGAN, ILLINOIS 60085-4345

(847) 775-7700

April 24, 2008

Attorneys for Petitioner

Becker Gallagher - Ciuxinnati, OH - Washington, D.C. - 800.890.5001

i

QUESTIONS PRESENTED

The Federal Railroad Safety Authorization Act

(““FRSAA”), 49 U.S.C. § 20106 (2007) preempts local

governments from enacting laws related to railroad

safety if the United States has issued regulations on

the same subject matter. The questions presented are:

1. Whether local regulations prohibiting trains from

blocking highway-grade crossings, through non-

movement, relate to “railroad safety.”

2. Whether federal regulations governing maximum

train speeds, air brake testing, and grade crossing

warning regulations “cover” the subject matter of local

regulations which require trains to move through a

grade crossing.

3. Whether the FRSAA’s savings clause preserves

the ability of local governments to require train

operators to move trains through highway grade

crossings within a specified time limit after stopping if

it is within their reasonable control to do so.

i

RULE 29.6 STATEMENT

Petitioner, the Village of Mundelein, Illinois, is a

local government entity not subject to Rule 29.6. The

Village of Mundelein was the plaintiff-appellant below

and is a municipal corporation incorporated under the

laws of the State of Illinois. It has no parent

corporation.

Respondent is the Wisconsin Central Railroad,

whose parent company is Canadian National Railroad.

Wisconsin Central Railroad was the defendant-

appellee below.

ili

TABLE OF CONTENTS

QUESTIONS PRESENTED

RULE 29.6 STATEMENT

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY

PROVISIONS

STATEMENT OF THE CASE

A. Statement of the Facts Prior to and During

Wisconsin Central’s Obstruction of Hawley

Street

B. Statement of the Lower Court Proceedings. 8

REASONS FOR GRANTING WRIT

I. THE ILLINOIS SUPREME COURT'S

DECISION CONFLICTS THIS COURT'S

PREEMPTION TEACHINGS

A. The Illinois Supreme Court Erred In

Holding Mundelein’s Ordinance Related to

“Railroad Safety”

lv

B. The [Illinois Supreme Court Failed to

Analyze the Term “Cover” According to this

Court’s Holdings

. The [linois Supreme Court Failed to

Properly Analyze Whether Mundelein’s

Ordinance Is Incompatible with the FRSAA

or Unreasonably Burdens _ Interstate

Commerce

Il. THE ILLINOIS SUPREME COURT'S

DECISION CONFLICTS WITH THE

DECISIONS OF THE FEDERAL COURTS OF

APPEAL AND OTHER STATE COURTS ... 19

Il THE ISSUE OF THE PREEMPTION OF

STATE AND LOCAL HIGHWAY-GRADE

CROSSING PROHIBITIONS IS OF VITAL

FEDERAL IMPORTANCE

CONCLUSION

APPENDIX

Appendix A: Jan. 25, 2008 Supreme Court of

Illinois Opinion

Appendix B: Sept. 6, 2006 Appellate Court of

Illinois Opinion

Appendix C: Excerpts from April 22, 2005

Proceedings

Appendix D: Statutes

Vv

TABLE OF AUTHORITIES

Cases

106 Southern Pacific Transportation Co. v. Public

Utilities Comm. of California,

647 F. Supp. 1220 (N.D. Cal. 1986), affd,

820 F.2d 1111 (9th Cir. 1987)

Burlington N. R.R. v. State of Montana,

880 F.2d 1104 (9th Cir. 1989)

Cipollone v. Liggett Group, Inc.,

505 U.S. 504 (1992)

City of Seattle v. Burlington Northern R.R. Co.,

41 P.2d 1169 (2002)

Commonwealth v. New York Central Railroad Co.,

216 N.E.2d 870 (Mass. 1966)

CSX Transportation, Inc. v. Easterwood,

507 U.S. 658 (1992)

CSX Transportation, Inc., v. City of Plymouth,

283 F.2d 812 (6th Cir. 2002)

Exxon Corp. v. Governor of Maryland,

437 U.S. 117 (1978)

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

373 U.S. 132 (1963)

Freightliner Corp. v. Myrick,

514 U.S. 280 (1995)

vi

Hillsborough County vu. Automated Medical

Laboratories, Inc.,

471 U.S. 707 (1985)

Hines v. Davidowiiz,

312 U.S. 52 (1941)

In re Miamisburg Train Derailment Litigation,

626 N.E.2d 85 (Ohio 1994), cert. denied by Union

Tank Car Co. v. Various Plaintiffs in Class,

513 U.S. 809 (1994)

Krentz v. Consolidated R. Corp.,

910 A.2d 20 (Pa. 2006)

Maryland v. Louisiana,

451 U.S. 725 (1981)

Missouri Pacific R. Co. v. Railroad Comm’n of Texas,

833 F.2d 570 (5th Cir. 1987)

Norfolk Southern Railway Co. v. Shanklin,

529 US. 344 (2000)

Rice v. Santa Fe Elevator Corp..,

331 U.S. 218 (1947)

Rushing v. Kansas City S. Ry. Co.,

185 F.3d 496 (5th Cir. 1999)

Seagram & Sons, Inc. v. Hostetter,

384 U.S. 35 (1966)

Shaw v. Delta Air Lines, Inc.,

463 U.S. 85 (1983)

Skidmore v. Swift & Co.,

323 U.S. 134 (1944)

Southern Pacific Co. v. Arizona,

325 U.S. 761 (1945)

Southern Pacific Transp. Co. v. Public Utility Com’n of

State of Or.,

9 F.3d 807 (9th Cir. 1993)

State v. Wheeling & Lake Erie Ry. Co.,

743 N.E.2d 513 (2000)

State v. Wisconsin Cent. Transp. Corp.,

546 N.W.2d 206 (Wis. App. 1996)

Thiele v. Norfolk & Western Ry. Co.,

68 F.3d 179 (7th Cir. 1995)

United Siates v. Mead Corporaticn,

533 U.S. 218 (2001)

United Transportation Union v. Foster,

205 F.3d 851 (5th Cir. 2000)

Constitutional Provisions

U.S. Const. art VI, cl. 2

Statutes

28 U.S.C. § 1257(a)

28 U.S.C. § 2403(b)

ee a ee ee Sn eae en eee 4

49 U.S.C. § 20106 (2007) passim

Vili

625 Ill. Comp. Stat. 5/18c-7402(1)(b)( West 2004) 4, 8

Ariz. Rev. Stat. Ann. § 40-852

Del. Code Ann. Title 17, § 701

District of Columbia, 18 DCMR § 2211.7

Fla.. Stat. Ann. § 351.034

Idaho Code § 49-1425

Ill. Rev. Stat. Chapter 95 1/2

Ind. Code Ann. § 8-6-7.5-1

Iowa Code § 327G.32

Kan. Stat. Ann. § 66-273

Ky. Rev. Stat. Ann. § 277.200

La. Rev. Stat. Ann. § 48:391

Mass. Ann. Laws ch. 160, § 151

Mich. Comp. Laws Ann.§ 462.391

Minn. Stat. § 219.383 (3)

Miss. Code Ann. § 77-9-235

Mont. Code Ann. § 69-14-626

N.D. Cent. Code, § 49-11-19

N.H. Rev. Stat Ann. § 373:15

N.J. Rev. Stat. § 39:4-94

N.Y. [R.R.] Law § 53-c

Ohio Rev. Code Ann. § 5589.21

R.I. Gen. Laws § 39-8-4

S.C. Code Ann. § 57-7-240

S.D. Codified Laws Ann. § 49-16A-119

Tex. [Transp] Code Ann. § 471.007

Utah Code Ann. § 41-6a-1204

Va. Code Ann. § 56-412.1

Village of Mundelein, Illinois, Ord. 89-4-12 § 1(A)

Vt. Stat. Ann. tit. 5, §3587

W. Va. Code § 31-2A-2

Wis. Stat. § 192.292

Other Authorities

Compilation of State Laws and Regulations on Matters

Affecting Highway-Rail Crossings, Federal Railroad

Administration (“FRA”) (March 1999)

Federal Railroad and Highway Administrations, U.S.

Dep’t of Transportation, Railroad-Highway Safety

Part II: Recommendations for Solving the Problem 2

(1972) , 4

FRA Issue Brief, Blocked Crossings

Highway-Rail Grade Crossing Model Law, National

Committee on Uniforms Traffic Laws and

Ordinances

Impact of Blocked Highway/Rail Grade Crossings on

Emergency Response Services, Federal Railroad

Administration, (August 2006)

Rules

Sup. Ct. R. 14.1(e)

Sup. Ct. R. 10

Regulations

49 C.F.R. 213.9(a) (2007)

49 C.F.R. 232.211 (2007)

49 C.F.R. 234.105 (2007)

49 C.F.R. 234.106 (2007)

49 C.F.R. 234.107 (2007)

Legislative Materials

H.R.Rep. No. 1194, 91st Cong., 2d Sess. ...... 116

1

PETITION FOR A WRIT OF CERTIORARI

The Petitioner respectfully petitions for a writ of

certiorari to review the judgment and opinion of the

Illinois Supreme Court decided on January 25, 2008.

OPINIONS BELOW

The opinion of the Illinois Supreme Court is

reported at 227 I1]1.2d 281, 882 N.E.2d 544, (Petition

Appendix (“App.”) 1la-24a). The Illinois Appellate Court

for the Second District opinion is reported at 367

Ill. App.3d 417, 855 N.E.2d 230, (App. at 25a-50a). The

trial court’s decision is not reported but is contained in

a transcript of the trial proceedings, the relevant

portion of which is reproduced in the Appendix to this

Petition. (App. at 5la-57a).

JURISDICTION

The judgment of the Circuit Court for the 19"

Judicial Circuit, Lake County, Illinois, was entered on

April 22, 2005. The Appellate Court of Illinois, Second

District, entered judgment on September 6, 2006. The

Supreme Court of Illinois entered a final judgment on

January 25, 2008. This Court has jurisdiction under 28

U.S.C. § 1257(a).

Pursuant to Sup. Ct. Rule 14.1(e), the Petitioner

states that 28 U.S.C. § 2403(b) may apply and a copy

of this Petition has been served on the Attorney

General for the Staie of Illinois.

2

q | CONSTITUTIONAL AND

a STATUTORY PROVISIONS

The Supremacy Clause of the United States

Constitution provides in relevant part: [T]he laws of

the United States “shall be the supreme Law of the

Land; ... any Thing in the Constitution or Laws of any

state to the Contrary notwithstanding.” U.S. CONST.

art VI, cl. 2.

The relevant portion of the Federal Railroad Safety

Authorization Act of 1994, 49 U.S.C. § 20101, et

seq.,(“FRSAA”), provides:

Laws, regulations, and orders related to

railroad safety ... shall be nationally uniform

to the extent practicable. A State rnay adopt or

continue in force a law, regulation or order

; related to railroad safety . . . until the Secretary

4 of Transportation ... prescribes a regulation or

| issues an order covering the subject matter of

-the State requirement. A State may adopt or

continue in force an additional or more

stringent law, regulation, or order related to

railroad safety when the law, regulation, or

order

(1) is necessary to eliminate or reduce an

essentially local safety or security hazard;

(2) is not incompatible with a law,

regulation, or order of the United States

Government; and

(3) does not unreasonably burden interstate

commerce.

49 U.S.C. § 20106 (2007).

3

The Village of Mundelein ordinance at issue

provides:

Except insofar as the application thereof is

clearly impractical or inappropriate, in view of

the context or purposes thereof, all of the

definitions, requirements, regulations,

prohibitions, provisions and sections of the

Illinois Motor Vehicle Code, as amended,

(Ulinois Revised Statutes, Chapter 95-1/2,

Section 1-101 and 20-402, inclusive) are by

reference adopted as ordinance definitions,

requirements, regulations, prohibitions,

provisions and sections of the village vehicle

code. Any and all violations of Illinois Revised

Statutes, Chapter 95-1/2, Sections 1-101 to 20-

402, inclusive, as amended, shall be considered

violations of this chapter and each such

violation shall subject the violator thereof to the

penalty provisions of this chapter; and the

section numbers of the Illinois Motor Vehicle

Code are adopted as section numbers of this

code and may be cited as such.

Village of Mundelein, Illinois, Ord. 89-4-12 § 1(A)

(1989).

The relevant portion of the Illinois Vehicle Code

provides:

(b) Obstruction of Highway at Grade Crossing

Prohibited. It is unlawful for a rail carrier to

permit any train, railroad car or engine to

obstruct public travel at a railroad-highway

grade crossing for a period in excess of 10

4

minutes, except where such train or railroad car

is continuously moving or cannot be moved by

reason of circumstances over which the rail

carrier has no reasonable control.

625 Ill. Comp. Stat. 5/18c-7402(1)(b)(West 2004)

(recodifying Ill. Rev. Stat. Chapter 95 1/2).

The relevant portions of the Code of Federal

Regulations, 49 C.F.R. 213.9(a) (2007) and 49 C.F.R.

232.211 (2007), and 49 C.F.R. 234.105, 234.106, &

234.107 (2007) are set out at App. 58a-63a.

STATEMENT OF THE CASE

This case presents important, recurring issues

regarding the extent to which Congress preempted

State and local governments’ authority to regulate

railroad conduct under the FRSAA. Specifically, this

case presents the question of whether Congress

- intended to preempt local government authority to

prohibit railroad operators from obstructing highway

grade crossings for more than a specified amount of

time when the operator has reasonable control over the

obstruction. A highway grade crossing is an

intersection of a railway and a public road at the same

level. See, Federal Railroad and Highway

Administrations, U.S. Dep't of Transportation,

RAILROAD-HIGHWAY SAFETY PART II:

RECOMMENDATIONS FOR SOLVING THE PROBLEM 2

(1972) (defining “public grade crossing”).

Originally enacted in 1970 as the Federal Railroad

Safety Act (“FRSA”), 45 U.S.C. § 421 et seq., the

FRSAA aimed to reduce railroad-related accidents and

D

deaths and to improve rail safety generally. See, CSX

Transportation, Inc. v. Easterwood, 507 U.S. 658, 661-

62 (1992). The FRSAA empowers the Secretary of

Transportation, through the Federal Railroad

Administration, to promulgate regulations to improve

railroad safety. Id. :

While the FRSAA contains an express preemption

clause with respect to “railroad safety,” two express

savings clauses cabin the reach of the express

preemption provision. The first of these clauses

preserves state and local government authority to

regulate on matters of railroad safety until the

Secretary issues regulations which substantially

subsume the same subject matter of state law. The

second clause allows state and local governments to

regulate even on those matters, provided the local

regulation is not incompatible with the federal

regulation, addresses a local safety hazard, and does

not unduly burden interstate commerce. See, 49 U.S.C.

§ 20106.

A. Statement of the Facts Prior to and During

Wisconsin Central’s Obstruction of Hawley

Street 3

On January 17, 2005, Wisconsin Central Railroad’s

train #A442 was scheduled to travel through the

Village of Mundelein, Illinois, with Bernard Kareka

acting as conductor of the train. Mr. Kareka and an

engineer took over operation of train #A442 in Lake

Villa, Illinois, after the train had been left there by the

previous crew, en route from Fond du Lac, Wisconsin

to Schiller Park, Illinois. App. at 2a.

6

The previous crew stopped train #A442 several

hours before Mr. Kareka and the train’s engineer

arrived, leaving a note indicating the train had “bad

air.” App. at 2a-3a. A bad air notation is commonly

understood to indicate the train had experienced a

problem with the air brakes. After conducting required

federal testing, Mr. Kareka and his engineer set off

toward the Village of Mundelein and points beyond.

Shortly after the train was underwar a “hot box

detector” alarm sounded, indicating the rear of the

train was dragging equipment. App. at 3a-4a.

In response, the engineer began to slow down the

train to a stop. Instead of responding normally to the

engineer’s braking, the train went into an emergency

brake application situation. The emergency brake

application was caused by a loss of air pressure,

resulting in the sudden stopping of the train. App. at

4a.

Because the air pressure in the brake system did

not return to its minimum required levels, Mr. Kareka

conducted a visual inspection of the train. He noticed

that the train had become separated about seventy-six

cars back from the locomotives due to a broken draw

bar between the cars. Mr. Kareka also noticed that

there was an angle cock that was only partially open

about six cars ahead of the break in the cars. App. at

4a.

Angle cocks act as valves to allow air to travel

throughout the air brake system. When an angle cock

is partially opened, less air travels to the rear of the

train, causing the brakes to be applied sooner on the

portion of the train forward of the partially open angle

7

cock than on the rearward portion. This uneven

application of the brakes can cause the rear cars to run

into the cars in the front. Mr. Kareka removed the

train car with the broken draw bar, repaired an air

hose rupture, and rejoined the vemaining sections of

train. App. at 4a-5a.

Significantly, at that time, the brake system

displayed sufficient air pressure to allow the train to

proceed south to Maple Street in Mundelein, where the

rear car with the dragging rigging could be removed,

or “set out,” from the train. App. at 5a.

While the rear car was being set out the highway-

grade crossings at Hawley Street and Park Street,

both located in Mundelein, were blocked by train

#A442.

While the rear car of train #A442 was being

removeil, a northbound suburban Chicago commuter

(Metra) train arrived at the Mundelein train station.

However, the Metra passengers could not get from the

platform of the train station to the parking lot because

the southbound Wisconsin Central #A442 train

blocked the access to the parking lot from the platform.

App. at 5a.

Mr. Kareka separated the Wisconsin Central train

so the commuter passengers could get across the

platform. After the commuter passengers had cleared

the tracks Mr. Kareka rejoined the train and

conducted federally required air brake testing. At that

time, Mr. Kareka was unable to get sufficient air

pressure in the brakes to allow the train as constituted

to proceed to its final destination. App. at 5a.

8

While other train personnel tried to resolve the air

pressure problem, a southbound Metra train stopped

at the Mundelein commuter train station. Again, Mr.

Kareka separated the train to allow the commuter

passengers to cross the tracks to get to the parking lot.

Because the problem with the air brake pressure could

not be resolved, the dispatcher for Wisconsin Central

Railroad ordered the front end of the train with

sufficient air brake pressure to proceed south to

Schiller Park, Illinois. App. at 6a.

At that point, train #A442 had obstructed Hawley

Street for 157 minutes. App. at 6a.

In response to the two hour and thirty-seven

minute obstruction of Hawley Street, the Village of

Mundelein issued a $14,000 citation to Wisconsin

Central Railroad for violating Village of Mundelein’s

ordinance adopting 625 Ill. Comp. Stat. 5/18c-

7402(1)(b)( (prohibiting the obstruction of a highway-

grade crossing in excess of ten minutes). App. at 56a.

B. Statement of the Lower Court Proceedings

On April 22, 2005, Judge Raymond D. Collins

conducted a bench trial with respect to whether

Wisconsin Central Railroad violated the Village’s

ordinance. The parties stipulated that the Hawley

Street grade crossing was blocked for 157 minutes.

Wisconsin Central Railroad solicited testimony

designed to support its affirmative defense that the

obstruction blockage was due to circumstances which

were beyond its reasonable control. Wisconsin Central

Railroad also argued that the Federal Railroad Safety

9

Act (“FRSA”) preempted the Mundelein’s grade

crossing obstruction ordinance.

Judge Collins found the reasons for the grade

crossing obstruction were within the reasonable

control of Wisconsin Central Railroad. Judge Collins

noted the conductor’s decision to split train #A442 to

prevent inconveniencing the Metra passengers in

reaching their automobiles. The trial court further

found that Mundelein’s ordinance was not preempted

by the FRSA on the facts of the case. Therefore, the

trial court found the Wisconsin Central Railroad guilty

of obstructing the grade crossing at Hawley Street for

157 minutes and imposed a fine of $14,000 plus court

costs. App. at 51la-56a.

Wisconsin Central Railroad appealed, asserting

that the FRSA preempted the ordinance and that the

trial court’s decision imposed additional duties on it

that were preempted by FRSA. The Illinois Appellate

Court agreed that federal law preempted the Village’s

ordinance and reversed. The Illinois Appellate Court

ruled that the ordinance related to railroad safety,

that the Federal Railroad Administration had issued

regulations covering the subject matter of the Village

ordinance, and that the ordinance did not meet the

requirements of the FRSA’s savings clause.

The Village of Mundelein then petitioned the

Illinois Supreme Court to hear the case. That court

granted the petition and upheld the Illinois Appellate

Court decisicn, addressing only the federal preemption

issue. App. at 8a, 24a. The Illinois Supreme Court also

found that the Village’s ordinance related to railroad

safety because the state statute incorporated by the

10

Village’s ordinance is titied Safety Requirements of

Railroad Operations. The court determined that the

plain language of the Village ordinance applied to

railroad operations. On this basis, the court concluded

the ordinance was related to “railroad safety.” App. at

lla.

The court also determined the Secretary has issued

regulations “covering” the subject matter of the

Village’s ordinance. First, the court held that the

subject matter of the Village ordinance governed train

movement. App. at 14a.

The court identified several of the Secretary’s

regulations and determined that a combination of

three regulations resulted in the Secretary’s having

issued regulations governing the “movement of trains.”

These various regulations on train speed, air

brake testing, and grade crossing safety work

together to regulate and control the movement

of trains at grade crossings. They control

whether a train may be moved and the speed of

a moving train. Taken together, the overall

structure of these regulations substantially

subsumes the subject matter of the movement of

trains at grade crossings. We, therefore, find

that the regulations manifest a clear intent to

preempt the Village’s ordinance on that subject

matter.

App. at 17a.

The regulations used by the court to reach its

conclusion that the Secretary has regulated “train

11

movement” are the regulation governing maximum

speed limits on certain classes track, (49 C.F.R. 213.9a

(2007)) the regulation governing air brake testing for

trains in circumstances similar to those taking place in

Mundelein(49 C.F.R. 232.211 (2007)), and several

regulations governing grade crossing safety (49 C.F.R.

234.105, 234.106, & 234.107 (2007)). The court did not

address the underlying facts or trial court’s holdings.

App. at 24a.

REASONS FOR GRANTING WRIT

Historically, the balance of authority in our dual

federal-state system has been an issue of importance

to this Court. Preemption should not be inferred from

every Congressional enactment that overlaps state

regulation. Instead, this Court assumes “that the

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

superseded by [a federal statute] unless that was the

clear and manifest purpose of Congress.” Rice v. Santa

Fe Elevator Corp., 331 U.S. 218, 230, (1947). This

Court’s cases have established that state law is

preempted under the Supremacy Clause, U.S. CONST.

art. VI, cl. 2, in three circumstances. First, Congress

can define explicitly the extent to which its enactments

preempt state law. See, e.g., Shaw v. Delta Air Lines,

Inc., 463 U.S. 85, 95-98 (1983), Easterwood, 507 U.S.

658. The FRSA contains an express preemption clause.

The second form of preemption recognized by this

Court arises when a state regulates a field Congress

intended the federal government to occupy exclusively.

Congress's intent is inferred from a “scheme of federal

regulation ...so pervasive as to make reasonable the

inference that Congress left no room for the States to

12

supplement it,” or where an Act of Congress “touch[es]

a field in which the federal interest is so dominant that

the federal system will be assumed to preclude

enforcement of state laws on the same subject.” Rice,

331 U.S. at 230. The FRSAA presents no issue of

inferred, or implied, field preemption. The FRSAA’s

text makes clear that Congress expected state and

local governments to regulate in those areas of railroad

safety where the federal government had not yet

regulated. Further, even in those areas, the text of the

FRSAA’s second savings clause shows that Congress

anticipated state and local governments would

reguiate certain areas despite the existence of federal

regulations on the same subject matter.

The third type of preemption recognized by this

Court is conflict preemption, which is another form of

inferred or implied preemption. Conflict preemption

arises in two situations: Where it is impossible for a

private party to comply with both state and federal

requirements, see, e.g., Florida Lime & Avocado

Growers, Inc. v. Paul, 373 U.S. 132, 142-143 (1963), or

where state law “stands as an obstacle to the

accomplishment and execution of the full purposes and

objectives of Congress.” Hines v. Davidowitz, 312 U.S.

52, 67 (1941). See also Maryland v. Louisiana, 451

U.S. 725, 747 (1981). While, Cipollone v. Liggett

Group, Inc., 505 U.S. 504 (1992), suggests that the

existence of an express preemption clause forecloses

implied preemption analysis, Freightliner Corp. v.

Myrick, 514 U.S. 280, 287 (1995), held this was not a

hard and fast rule. It is unclear whether implied

conflict preemption applies under the FRSAA. In

Easterwood, this Court rejected a challenge seeking to

preempt state law tort claims based on an alleged

13

implied conflict with federal regulations issued under

the FRSAA. Easterwood, 507 U.S. 658, 673, n. 12,

(1993) (“We reject petitioner’s claim of implied ‘conflict’

preemption ... on the basis of the preceding analysis”).

This case presents the question of how the

presumption against federal preemption and the

preemption principles outlined above apply to state

health and safety regulation in the context of the

express preemption provisions of the FRSAA. The

presumption against preemption is especially strong

with respect to state or local regulation of matters of

health and safety. See, Hillsborough County v.

Automated Medical Laboratories, Inc., 471 U.S. 707,

715 (1985). Further, “FRSA preemption is even more

disfavored than preemption generally.” Rushing uv.

Kansas City S. Ry. Co., 185 F.3d 496, 515 (5th Cir.

1999) (internal citations omitted).

The Illinois Supreme Court’s decision conflicts with

this basic principle of FRSAA preemption. The decision

is also in conflict with federal courts of appeal and

other state courts with respect to the proper analysis

to be engaged in when faced with a claim of FRSAA

preemption. Because the question of the preemptive

scope of the FRSAA with respect to regulating railroad

carrier’s blockage of public thoroughfares is of critical

importance throughout the Nation, the Petitioners

urge this Court to grant the Petition.

14

I. THE ILLINOIS SUPREME COURT'S

DECISION CONFLICTS THIS COURT'S

PREEMPTION TEACHINGS

The FRSAA preempts any State law, rule,

regulation, order, or standard relating to railroad

safety unless certain requirements are met. As this

Court recognized in Easterwood, preemption under the

FRSA is not easily achieved because Congress

memorialized the general presumption against federal

preemption in the very text of the two express savings

clauses of the FRSA. These savings clauses surround

the express preemption provision. Easterwood, 507

U.S. at 665, 668 (1993). The Illinois Supreme Court

committed a series of errors resulting in its failure to

give Mundelein’s ordinance the deference this Court

requires, bringing its decision squarely in conflict with

this Court’s federalism principles.

A. The [Illinois Supreme Court Erred In

Holding Mundelein’s Ordinance Related to

“Railroad Safety”

To prevail on the claim of preemption, a railroad

first must establish that the state law at issue

addresses “railroad safety,” as that term is understood

in the FRSAA. This Court has not addressed the

definition of “railroad safety.” Congress employed, but

did not define, the term “railroad safety,” in the

FRSAA. In Easterwood, the Court examined whether

a common law negligence tort for unsafe operation of

a train was preempted by any of several federal

regulations issued by the Secretary. This Court

determined that the “legal duties imposed on railroads

by the common law fall within” the broad phrase “law,

15

rule, regulation, order, or standard relating to railroad

safety.” Easterwood, 507 U.S. at 664. The Easterwood

Court stated that to find preemption required finding

evidence of Congress’s preemptive purpose in the text

and structure of the statute at issue. Easterwood, 507

U.S. at 664, citing Shaw, 463 U.S. at 95. The

Easterwood Court impliedly recognized that the

FRSAA only applies to state and local government

laws designed to improve railroad safety. Easterwood,

507 U.S. at 665-75.

Without engaging in an in-depth analysis of the

meaning of “railroad safety” as contained in the

FRSAA, the Illinois Supreme Court opined that

Mundelein’s ordinance related to “railroad safety”

because it affects railroad operations and included the

term “safety” in the title. If the Illinois Supreme Court

had followed this Court’s admonishment to find

evidence of Congress’s preemptive purpose in the text

and structure of the statute, it would have reviewed

the FRSA with consideration for what “railroad safety”

means in the context of the statute. Such a review

should have lead to the conclusion that a State or local

law requiring the movement of a train through a

highway-grade crossing, and out of the public

thoroughfare, is not an issue of “railroad safety”

expressly preempted by the FRSAA. Preventing the

obstruction of a grade crossing when it is within the

reasonable control of the railroad operator is not

implicated by Congress’s desire to reduce railroad

caused accidents, injuries, and deaths.

The FRSAA was designed to lessen direct loss of

life or limbs or property damage caused by rail

operations, not indirect injuries made worse by a rail

16

operator’s blocking of a highway grade crossing. The

Illinois Supreme Court erred when it found

Mundelein’s ordinance regulated “railroad safety” as

that term is employed by the FRSAA.

B. The Illinois Supreme Court Failed to

Analyze the Term “Cover” According to

this Court’s Holdings

Even if Mundelein’s ordinance relates to “railroad

safety,” the FRSAA clearly contemplates that state

legislation will not be preemp: >d in two circumstances.

The first of these occurs where the federal government

has not adopted a regulation “covering the subject

matter” of the state law. This provision reflects

Congress’s acknowledgment of a continuing role for the

state regulation of railroad operations and railroad

safety. The mere adoption of the FRSAA did not

“instantaneously cover every safety hazard.” Missouri

Pacific R. Co. v. Railroad Comm’n of Texas, 833 F.2d

570, 573, n.3 (5th Cir. 1987) (citing See H.R.Rep. No.

1194, 91st Cong., 2d Sess., reprinted in 1970

U.S.CODE CONG. & AD.NEWS 4104, 4109).

For the Secretary’s regulations to have a

preemptive effect, railroad carriers must establish

more than that the federal regulations ‘touch upon’ or

‘relate to’ the subject matter of a State or local law.

The federal regulations must ‘cover’ the subject matter

of the state law. Easterwood, 507 U.S. at 664, see, also,

Norfolk Southern Railway Co. v. Shanklin, 529 U.S.

344, 352 (2000) (“for preemption to lie under the

FRSA, both state and federal law must ‘cover’ the

same subject matter”). “Cover” is a more restrictive

term which indicates that preemption will occur only

17

if the federal regulations “substantially subsume” the

subject matter of the relevant state law. The FRSAA

displays considerable solicitude for state law because

the express preemption provision is both prefaced and

succeeded by express savings clauses. Easterwood, 507

U.S. at 664-65.

While the Illinois Supreme Court noted these

teachings from Easterwood, it nonetheless found that

regulations requiring air brake testing after certain

events, regulating maximum speeds on certain classes

of track, and governing trains with respect to grade

crossing warning systems created a_ broad,

comprehensive scheme regulating “train movement.”

The Illinois Supreme Court broadened the Secretary’s

regulations, interpreting them to cover train

movement generally, rather than interpreting the

regulations narrowly. This analysis of the federal

regulations is contrary to this Court’s holding that

“seneral mandates” do not “cover the subject matter”

of state laws. Easterwood, 507 U.S. at 668-69.

Under applicable Supreme Court precedent, the

fact that federal regulations address specific aspects of

train operations does not require preemption of local

grade crossing obstruction regulations. The Illinois

Supreme Court’s decision and analysis failed to give

Mundelein’s ordinance the considerable solicitude it is

due, leading to a decision that is contrary to this

Court’s teachings on this issue.

18

C. The Tllinois Supreme Court Failed to

Properly Analyze Whether Mundelein’s

Ordinance Is Incompatible with the

FRSAA or Unreasonably Burdens

Interstate Commerce

Mundelein’s ordinance is neither incompatible with

the FRSAA nor does it unreasonably burden interstate

commerce. The Illinois Supreme Court hypothesized

that to clear a grade-crossing within 10 minutes of

stopping, a train operator might have to speed up

beyond federal maximum speed limits. Therefore

Mundelein’s ordinance was incompatible with the

federal regulations governing maximum speed. The

court also hypothesized that to comply with federal air

brake regulations, a train might have to block a grade

crossing for more than 10 minutes. The court refused

to conduct an individualized determination of whether

in this case, the ordinance would result in any of the

conflict imagined by the court.

However, this Court has long held that “the

existence of a hypothetical or potential conflict is

insufficient to warrant the preemption of the state

statute.” Rice v. Norman Williams Co., 458 U.S. 654,

659 (1982), see also, Exxon Corp. v. Governor of

Maryland, 437 U.S. 117 (1978) (“{aJlthough it is

possible to envision circumstances under which price

discriminations proscribed by the Robinson-Patman

Act might be compelled by [the state statute], the

existence of such potential conflicts is entirely too

speculative in the present posture of this case” to

warrant preemption,” citing Seagram & Sons, Inc. v.

Hostetter, 384 U.S. 35, 44, (1966). By hypothesizing

situations in which Mundelein’s ordinance might

19

require a railroad to take action in violation of a

federal regulation, the Illinois Supreme Court sought

out a speculative conflict that violates this Court’s

preemption teachings.

The court also hypothesized that a train operator

could be required to adjust train length to clear the

grade crossing within 10 minutes after stopping and

that the ordinance therefore unreasonably burdened

interstate commerce. The court relied on Southern

Pacific Co. v. Arizona, 325 U.S. 761 (1945) for this

proposition. In Arizona, this Court invalidated a state

law that affirmatively required a change in train

length. That situation is simply not presented by the

facts of this case. Again, hypothetical situations should

not be used to justify the preemption of state public

health and safety laws.

Il. THE ILLINOIS SUPREME COURT’S

DECISICN CONFLICTS WITH THE

DECISIONS OF THE FEDERAL COURTS OF

APPEAL AND OTHER STATE COURTS

The resolution of conflicts among the federal courts

of appeals and the state courts of last resort on an

issue of federal law is one of the primary justifications

for this Court to grant certiorari. See, Sup. Ct. R. 10.

There is a split among the lower courts with respect to

the standard to employ under the FRSA, and this

Court’s intervention is needed to resolve this

important and recurring question.

There are few decisions examining blocked grade

crossing laws. The Illinois Supreme Court’s decision is

consistent with one federal court of appeals and two

20

state supreme courts in finding similar grade-crossing

obstruction statutes preempted by federal regulations.

See, CSX Transportation, Inc., v. City of Plymouth, 283

F.2d 812 (6™ Cir. 2002); Krentz v. Consolidated R.

Corp., 910 A.2d 20 (Pa. 2006), City of Seattle v.

Burlington Northern R.R. Co., 41 P.2d 1169 (2002).

The Illinois Supreme Court’s opinion is in conflict with

one state court of appeals decision, upholding a

blocked crossing statute because no federal regulations

addressed the specific subject matter of blocked

crossings. State v. Wheeling & Lake Erie Ry. Co., 743

N.E.2d 513 (2000).

However, when one considers the reasoning relied

upon by the Ilhnois Supreme Court and the other

courts that have invalidated blocked crossing statutes,

a deeper split becomes evident. The analysis of the

Illinois Supreme Court is in conflict with the analysis

employed by the Fifth and Ninth Circuit Courts of

Appeal. As mentioned above, the Illinois Supreme

Court broadly interpreted federal regulations as

governing “train movement.” Both the Fifth and the

Ninth Circuits have held that the FRSA preemption

analysis requires narrowly construing federal

regulations and engaging in specific analysis of federal

regulations, not broadening the regulations to

encompass general principles.

In United Transportation Union v. Foster, 205 F.3d

851, 860 (5th Cir. 2000), the Fifth Circuit stated that

“when deciding whether the FRSA preempts state laws

de<*gned to improve railroad safety, we interpret the

relevant federal regulations narrowly to ensure that

the careful balance that Congress has struck between

state and federal regulatory authority is not

21

improperly disrupted in favor of the federal

government.” The question in Foster was whether a

‘Louisiana law requiring train operators use sound

devices at specified locations was preempted by federal

regulation governing sound equipment and whistle

capacity. The Fifth Circuit found that the federal

regulations did not “cover” the same subject as the

state law. Foster, 205 at 862. See also, Rushing v.

Kansas City S. Ry. Co., 185 F.3d 496 (5th Cir. 1999).

In applying FRSA preemption, the Fifth Circuit

“eschew[ed] broad categories such as ‘railroad safety,’

focusing instead on the specific subject matter

contained in the federal regulation.” Foster, 205 F.3d

at 860 (citing Easterwood, 507 U.S. at 665-75); see also,

Rushing, 185 F.3d at 515 (same). By giving the

regulations at issue in this case broad effect, the

Illinois Supreme Court’s reasoning is in conflict with

the holding of the Fifth Circuit eschewing broad

categories.

Similarly, in Southern Pacific Transp. Co. v. Public

Utility Com'n of State of Or., 9 F.3d 807, (9" Cir.

1993), the Ninth Circuit Court of Appeals noted that ©

this Court’s FRSA teachings do not look broadly at

categories such as “railroad safety,” but rather look at

the narrow categories such as “warning devices” when

determining preemption. Applying that level of

specificity in its analysis, the Ninth Circuit concluded

that regulations promulgated under the FRSA did not

preempt Oregon regulations restricting the use of

whistles in certain circumstances. The “subject matter”

of the federal regulations in that case was the sound-

producing capacity of train whistles. By construing the

subject matter of the federal regulations narrowly, the

22

court of appeals determined the capacity regulations

did not “substantially subsume” the use of the

whistles. As such, the federal regulations did not

“cover” Oregon’s regulations.

The Illinois Supreme Court’s holding also conflicts

with the holdings of the Supreme Court of Ohio, as

detailed by In re Miamisburg Train Derailment

Litigation, 626 N.E.2d 85, 93 (Ohio 1994), cert. denied

by Union Tank Car Co. v. Various Plaintiffs in Class,

513 U.S. 809 (1994), where the court held that this

Court’s “substantially subsumes” language means that

if a federal regulation does not “specifically address”

the subject matter of the challenged state law, it does

not “substantially subsume” and thus preempt it. The

issue in that case was whether the plaintiffs could

bring a negligence claim because train cars were not

retrofitted with remforeing pads between external

attachments and the shell of tiie car. Federal

regulations provided that train cars manufactured

after a certain date must be outfitted with reinforcing

pads, while earlier manufactured cars could continue

in service. According to the Ohio Supreme Court:

The mere general provision of Section 179.1(c),

Title 49, C.F.R., that tanks mounted on or

forming part of a tank car “built to

specifications predating those in this part may

continue in use” is not equivalent to an

affirmative specific statement that the owner or

operator of a tank car built prior to 1971 is

under no duty to retrofit with reinforcing pads;

and is also not equivalent to the further specific

statement that one who does not retrofit a pre-

1971 built tank car with reinforcing pads is

23

shielded from liability under state tort law. Due

to its lack of specificity, Section 179.1(c) does

not “cove[r] the subject matter” of appellants’

claims.

In re Miamisburg Train Derailment Litigation, 626

N.E.2d at 93.

The Ninth Circuit similarly has held that “[flor

purposes of § 434 of the FRSA, a state regulation

‘covers the same subject matter’ as an FRA regulation

if it addresses the same safety concerns as the FRA

regulation.” See, Burlington N. R.R. v. State of

Montana, 880 F.2d 1104, 1105 (9th Cir. 1989), see also,

106 Southern Pacific Transportation Co. v. Public

Utilities Comm. of California, 647 F. Supp. 1220, 1225

(N.D. Cal. 1986), aff'd, 820 F.2d 1111 (9th Cir. 1987)

(per curiam); State v. Wisconsin Cent. Transp. Corp.,

546 N.W.2d 206, 211 (Wis. App. 1996).

The Illinois Supreme Court failed to properly

consider a narrow interpretation of the federal

regulations at issue, choosing instead to broadly

review the scope of the regulations by finding the

regulations govern “train movement.” This shallow

treatment of the question conflicts with the holdings of

the Fifth and Ninth Circuit which require a narrow

and specific inquiry in the preemption context.

Further, the Illinois Supreme Court opinion that

the ordinance unreasonably burdens _ interstate

commerce is in direct conflict the Massachusetts

Supreme Court opinion in Commonwealth v. New York

Central Railroad Co., 216 N.E.2d 870, 873 (Mass.

1966), holding that a grade crossing ordinance did not

24

unreasonably burden interstate commerce. The court

noted that “[s]hould this statute be struck down, trains

might occupy crossings indefinitely leaving the

highways in a continuing state of chaos.”

The Illinois Supreme Court’s preemption analysis

is in conflict with other state supreme courts and with

federal courts of appeal. This Court’s intervention is

required to resolve the conflict.

Ii. THE ISSUE OF THE PREEMPTION OF

STATE AND LOCAL HIGHWAY-GRADE

CROSSING PROHIBITIONS IS OF VITAL

FEDERAL IMPORTANCE

Even aside from the clear conflict in the lower

courts, this Court should grant certiorari because of

the overarching importance of this preemption issue.

If the Illinois Supreme Court is correct, and railroads

cannot be forced to move their trains through grade

crossings when it is within their reasonable control to

do so, “the public would be unprotected indefinitely.”

Id. For example, if the Illinois Supreme Court’s

decision is correct and the federal regulations govern

“train movement,” thereby preempting all state and

local statutes requiring grade-crossing obstructions be

removed within a specified time period, train operators

can stop on grade crossings for any whim — to havea

smoke, talk on a cell phone, or simply admire the

scenery. When it adopted the FRSA in response to

growing concerns about threats to public safety,

Congress did not intend to reduce public protection by

creating regulatory voids, for “otherwise the public

would be unprotected by either state or federal law.”

25

Thiele v. Norfolk & Western Ry. Co., 68 F.3d 179, 184

(7th Cir. 1995).

Examining the sheer practical effect of blocked and

obstructed grade crossing shows how important the

federal preemptive scope of the FRSA and its

regulations are. Between 241,000 and 260,000 public

and private highway-rail grade crossings exist in the

United States today. See, Compilation of State Laws

and Regulations on Matters Affecting Highway-Rail

Crossings at iv, Federal Railroad Administration

(“FRA”) (March 1999), available at

www.fra.dot.gov /downloads/ Safety/cross_intro.pdf,

last visited April 15, 2008 and FRA Issue Brief,

Blocked Crossings, available at www.fra.dot.gou/us/

content / 907, last visited April 15, 2008. Many of these

crossings are in highly populated cities, towns, and

suburbs, increasing the impact of grade-crossing

obstructions. Throughout the country, citizens on the

way to work or other obligations, businesses

attempting to engage in commerce, and emergency

services personnel engaged in life-saving work are

affected by blocked grade crossings. Twenty-nine

states in addition to Illinois have statutes governing

the length of time a train may stop and block a grade

crossing.’

1 Ariz. Rev. Stat. Ann. § 40-852; Del. Code Ann. Title 17, § 701;

District of Columbia, 18 DCMR § 2211.7; Fla.. Stat. Ann.

§ 351.034; Idaho Code § 49-1425; Ind. Code Ann. § 8-6-7.5-1; Iowa

Code § 327G.32; Kan. Stat. Ann. § 66-273; Ky. Rev. Stat. Ann.

§ 277.200; La. Rev. Stat. Ann. § 48:391; Mass. Ann. Laws ch. 160,

§ 151; Mich. Comp. Laws Ann. § 462.391; Minn. Stat. § 219.383

(3); Miss. Code Ann. § 77-9-235; Mont. Code Ann. § 69-14-626;

N.H. Rev. Stat Ann. § 373:15; N.J. Rev. Stat. § 39:4-94; N.Y. [R.R.]

Law § 53-c; N.D. Cent. Code, § 49-11-19; Ohio Rev. Code Ann.

26

The impcrtance of addressing grade-crossing

obstructions is recognized by the FRA, the

administration charged with regulating railroad

safety. The FRA recognizes that blocked crossings

jeopardizes first responders ability react to

emergencies, leads to citizens violating grade crossing

prohibitions and adversely affects businesses and

citizens by inhibiting their movement. The FRA has

stated:

The Federal Railroad Administration (FRA) is

well aware of the safety hazards associated with

blocked crossings. Blocked crossings can impede

the movement of emergency response vehicles,

be an inducement to crossing violations and

trespassing, and adversely affect the quality of

life in our communities. With the growth of rail

traffic and continued railroad mergers

concentrating that traffic on fewer lines, the

problem will persist.

Blocked Crossings Issue Brief.

The FRA has further stated that while it aims to

provide a safe environment for the movement of trains,

its regulations do not regulate the amount of time a

railroad can block a crossing:

§ 5589.21; R.I. Gen. Laws § 39-8-4; S.C. Code Ann. § 57-7-240;

S.D. Codified Laws Ann. § 49-16A-119; Tex. [Transp] Code Ann.

§ 471.007; Utah Code Ann. § 41-6a-1204; Vt. Stat. Ann. 5-68-358;

Va. Code Ann. § 56-412.1; W. Va. Code § 31-2A-2; Wis. Stat.

§ 192.292.

27

FRA’s Role — FRA’s regulations provide an

environmeat for the safe movement of trains.

They cover track, equipment, operating

practices, signal systems, the transporting of

hazardous materials, and the maintenance of

automated warning devices (flashing lights

and/or gates) at highway-rail crossings. The

FRA, however, does not regulate the length of

time a railroad may block a crossing.

Id. Under Skidmore v. Swift & Co., 323 U.S. 134

(1944) and United States v. Mead Corporation, 533

U.S. 218 (2001), the FRA view of the scope of its

regulations is entitled to deference.

The FRA also recognizes that “the issue of a State’s

authority to legislate or regulate blocked crossings is

highly contentious and still being defined in the

courts.” Impact of Blocked Highway/Rail Grade

Crossings on Emergency Response Services at 16,

Federal Railroad Administration, (August 2006).

Further, the Uniform Vehicle Code (UVC), a

comprehensive guide designed to help States develop

standard motor vehicle and traffic laws, trains should

not block crossings for more than five minutes, except

under special circumstances (e.g., if a train is disabled;

or if no vehicular traffic is waiting to use the crossing;

or if it is necessary to comply with signals affecting the

safe movement of trains). Highway-Rail Grade

Crossing Model Law, National Committee on Uniforms

Traffic Laws and Ordinances, hitp:/ /www.ncutlo.

org/railgradeO5.html, last visited April 23, 2008. In

light of the undefined nature of state and local

governments’ authority to minimize grade crossing

obstructions, in light of the FRA’s contention that it

28

does not regulate the length of time a train may block

a highway grade crossing, and in light of the fact that

the UVC advocates prohibiting obstructions of more

than 5 minutes in length, this Court’s intervention is

need to bring certainty to this area of federal

regulation.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

LANI L. WILLIAMS

(Counsel of Record)

Local Government Lawyer’s Roundtable

N67W32480 Jorgenson Court

Oconomowoc, WI 53066

(262) 966-7436

LAWRENCE R. LALUZERNE

Smith & LaLuzerne, Ltd.

209 W. Madison Street, 2nd Floor

Waukegan, Illinois 60085-4345

(847) 775-7700

CHARLES F. MARINO

Attorney for the Village of

Mundelein, Illinois

100 W. Monroe Street

Suite 902

Chicago, IL 60603

(312) 236-4260

Counsel for Petitioner