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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1408%3A1. Public record. Not legal advice.