PUBLISHED OPINION
Case No.: 95-0070
†Petition to
review filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,†
v.
WISCONSIN CENTRAL
TRANSPORTATION CORPORATION,
Defendant,
WISCONSIN CENTRAL LTD. and
FOX VALLEY & WESTERN LTD.,
Defendants-Third Party
Plaintiffs-Appellants,
v.
JAMES E. DOYLE, ATTORNEY GENERAL
OF THE STATE OF WISCONSIN and
STATE OF WISCONSIN
DEPARTMENT OF JUSTICE,
Third Party Defendants.
Oral Argument: January 10, 1996
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: February 28, 1996
Opinion Filed: February 28, 1996
Source of APPEAL Appeal
from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Fond du Lac
(If "Special", JUDGE: STEVEN W. WEINKE
so indicate)
JUDGES: Anderson,
P.J., Brown and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the defendants-third party plaintiffs-appellants, there were briefs
by Jon P. Axelrod and Joseph A. Ranney of DeWitt, Ross &
Stevens, S.C. of Madison and David B. Potter and Jacob M.
Holdreith of Oppenheimer, Wolff & Donnelly of St. Paul,
Minnesota. There were oral arguments by
Jon P. Axelrod.
Respondent
ATTORNEYSOn
behalf of the plaintiff-respondent, there were briefs by James E. Doyle,
attorney general, Thomas L. Dosch, assistant attorney general, and Susan
K. Ullman, assistant attorney general.
There were oral arguments by Thomas L. Dosch.
Amicus
CuriaeOn
behalf of the Soo Line Railroad Company, there was an amicus curiae brief by Patrick
J. Nugent of Canadian Pacific Legal Services of Minneapolis,
Minnesota.
|
COURT OF APPEALS DECISION DATED AND RELEASED February 28, 1996 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0070
STATE
OF WISCONSIN IN COURT OF
APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
WISCONSIN CENTRAL
TRANSPORTATION
CORPORATION,
Defendant,
WISCONSIN CENTRAL LTD. and
FOX VALLEY & WESTERN LTD.,
Defendants-Third Party
Plaintiffs-Appellants,
v.
JAMES E. DOYLE, ATTORNEY GENERAL
OF THE STATE OF WISCONSIN and
STATE OF WISCONSIN
DEPARTMENT OF JUSTICE,
Third Party Defendants.
APPEAL from an order of
the circuit court for Fond du Lac County:
STEVEN W. WEINKE, Judge. Reversed.
Before Anderson, P.J.,
Brown and Snyder, JJ.
SNYDER, J. Wisconsin
Central Ltd. and Fox Valley & Western Ltd. (Wisconsin Central)[1]
appeal from an order denying their motion for summary judgment. The single issue presented for review is
whether § 192.255, Stats. (the
“conductor law”) is preempted by the Federal Railroad Safety Act (FRSA). Because we conclude that the conductor law
is substantially subsumed by federal regulations promulgated under the FRSA, it
is preempted.[2] We therefore reverse the trial court ruling
and grant summary judgment for Wisconsin Central.
In 1988, the United
Transportation Union, a labor organization representing some employees of other
railroads, filed a complaint with the Wisconsin Department of Transportation
(DOT) accusing Wisconsin Central of violating the conductor law. Based on this complaint, the DOT commenced
an investigation. Wisconsin Central
responded with an action in federal court, challenging the constitutionality of
the conductor law.[3] The federal lawsuit was dismissed after the
parties reached a settlement agreement.[4]
After the initial stay
of the administrative proceeding had expired, Wisconsin Central returned to
federal court, seeking a further injunction.
That suit was dismissed when the federal court concluded that the State
of Wisconsin had an important governmental interest in the enforcement of the
conductor law.
Wisconsin Central again
requested the Office of the Commissioner of Transportation (OCT) to stay any
administrative proceedings pending the issuance of additional federal
regulations. That stay was denied. The OCT report, which was issued following a
public hearing and the filing of briefs, concluded that “it [was] likely that
[Wisconsin Central] has violated and continues to violate § 192.255, Wis.
Stats., in the manner in which it assigns conductors.”
The state attorney
general then brought an action seeking an injunction requiring Wisconsin
Central to comply with the conductor law.
Wisconsin Central filed a motion for summary judgment, arguing that the
conductor law has been preempted by the FRSA.
The trial court concluded that because the state law addresses only conductor
standards, and federal regulations govern the training and certification of engineers,
there was no preemption. Following
denial of the summary judgment motion, Wisconsin Central requested immediate
review of the resulting order. Pursuant
to Rule 809.50, Stats., review was granted and this
appeal followed.
Our review of a trial
court's grant or denial of summary judgment is de novo, and we apply the same
methodology as the trial court. See
Universal Die & Stampings v. Justus, 174 Wis.2d 556, 560, 497
N.W.2d 797, 799 (Ct. App. 1993).
Summary judgment must be granted if there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Section 802.08(2), Stats.
The issue presented is
whether state regulation of conductors is preempted by the FRSA. The relevant portion of the conductor law, §
192.255, Stats., is as follows:
Qualifications of conductors and flagmen.
(1) No
person shall act or be engaged to act as a conductor on a railroad freight or
passenger train in this state without having for at least three years prior
thereto served or worked in the capacity of a railroad brakeman.
This
section now stands as the only section in ch. 192, Stats., which states qualifications for any railroad
employee.[5]
The preemption issue
presents a question of statutory construction.
Construction of a statute is resolved without deference to the trial
court. Wisconsin Hosp. Ass'n v.
Natural Resources Bd., 156 Wis.2d 688, 705, 457 N.W.2d 879, 886 (Ct.
App. 1990). In determining whether the
conductor law is preempted, we first consider 49 U.S.C. § 20106, entitled
“National uniformity of regulation.”
That section states in relevant part:
Laws, regulations, and orders related to
railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force a
law, regulation, or order related to railroad safety until the Secretary 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 hazard;
(2)
is not incompatible with a law, regulation, or order of the United States
Government; and
(3) does not unreasonably burden interstate
commerce.
In CSX Transp.,
Inc. v. Easterwood, 507 U.S. ___, 113 S. Ct. 1732 (1993), the Supreme
Court addressed the issue of preemption under the FRSA. Evidence of a preemptive purpose is first
sought in the text and structure of the statute itself. Id. at 1737. If the statute contains an express
preemption clause, the task of statutory construction must first focus on the
plain wording of the clause, which contains the best evidence of Congress'
preemptive intent. Id.
In CSX Transp.,
the Court determined that the preemptive effect of the FRSA regulations was
governed by “[45 U.S.C.] § 434, which contains express saving and
pre-emption clauses.”[6] Id. at 1736. The Court then focused its analysis on the
two terms “related to” and “covering” as dispositive of Congress' preemptive
intent.
The Court cited to Morales
v. Trans World Airlines, Inc., 504 U.S. 374, 383‑84 (1992), in
construing “related to.” The Court
there determined that the ordinary meaning of the phrase is broad. Id. at 383. The Court stated that the phrase “relating
to” expressed a broad preemptive purpose, had an “expansive sweep” and was
“conspicuous for its breadth.” Id.
at 383‑84.
The CSX Transp.
Court went on to consider the term “covering.”
The Court concluded that it is a more restrictive term. CSX Transp., 507 U.S. at ___,
113 S. Ct. at 1738. The use of
“relating to” in the saving clause and the more restrictive “covering” in the
preemption clause suggests that the Congressional purpose was to allow states
to enact regulations relating to railroad safety up to the point that
federal legislation enacted a provision which specifically covered the
same material. See generally id.
Use of these two terms
in this statute led the Court to conclude that preemption will be found only if
the federal regulations “substantially subsume the subject matter of the
relevant state law.” Id.
at 1738. The “substantially subsumes”
test requires a showing that FRSA regulations cover the same subject matter as
state law. They must do more than
“touch upon” or “relate to” the subject matter of the state law. See id.
In a case applying the CSX
Transp. test which found preemption, a federal district court in
Massachusetts held that an FRSA regulation which governed handholds on rail
tank cars, mandating the number, size and location of the handrails,
substantially subsumed the subject matter of the design and placement of the
handrail on the tank car for purposes of a negligence action. Ouellette v. Union Tank Car Co.,
902 F. Supp. 5, 10 (D. Mass. 1995). The
court reasoned that since the Secretary of Transportation had specifically
addressed the safe design and placement of handholds on tank cars, a common law
negligence action disputing their safe placement was preempted.
In the present case, the
analysis must address whether the subject matter of the conductor law is
substantially subsumed by federal regulations governing engineers. In making this determination, it is
necessary to compare the historical distinctions between conductors and
engineers with present day practices.
Historically, the
conductor has been the crew member who “is in charge of the train and gives
orders for its movement; he [or she] also is concerned with the condition and
operation of the equipment.” Chicago
& N.W. Ry. v. LaFollette, 43 Wis.2d 631, 649, 169 N.W.2d 441, 449
(1969). In contrast, the function of
the engineer has been to operate only the locomotive; the conductor has
had command of the overall governance of the train.
With technological
advances, rail operations have changed dramatically, and the necessity of
certain jobs and responsibilities has been eliminated. The historic requirement of a “five-man
crew” (engineer, fireman, conductor, head brakeman and rear brakeman) has been
reduced to only two crew members.[7] As a result of technological advances,
Wisconsin Central assigns the direction and governance of the train,
historically the job of the conductor, to its engineer.[8]
The trial court, in
recognition of this change, determined that the conductor law requirement of
three years of brakeman experience should “follow[ ] the assignment of the core
duties of the conductor wherever those duties go” and that “[t]he company has
chosen to assign the core duties of the conductor position to the
engineer.” Therefore, the court
concluded, the engineer is also a conductor and is subject to the required
experience as a brakeman.
This merging of the
historically separate functions is also reflected by the federal
regulations. The section of regulations
governing engineers, 49 C.F.R. § 240.1(a), states:
The
purpose of this part is to ensure that only qualified persons operate a locomotive
or train. [Emphasis added.]
Furthermore,
according to 49 C.F.R. § 240.107(c)(1):
Train service engineers may
operate locomotives singly or in multiples and may move them with or without
cars coupled to them .... [Emphasis
added.]
Research
did not uncover any reference in the applicable sections of the federal
regulations specifically pertaining to conductors or their qualifications.
The Supreme Court has
refused to resolve preemption issues by merely comparing the objectives of the
federal and state regulations. Missouri
Pac. Ry. v. Railroad Comm'n, 833 F.2d 570, 574 (5th Cir. 1987), citing
to Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132
(1963). “Federal superintendence of the
field would be thwarted by such a mincing construction of whether FRA
regulations ‘cover the subject matter.’”
Missouri Pac. Ry., 833 F.2d at 574. The test of “covering the subject matter”
must have a practical as well as a policy dimension under the FRSA. Id. Furthermore, for purposes of 49 U.S.C. § 20106, a state
regulation covers the same subject matter as an FRSA regulation if it addresses
the same safety concerns as the federal regulation. See Burlington N. R.R. v. State of Montana, 880
F.2d 1104, 1105 (9th Cir. 1989).
The FRSA has promulgated
extensive rules stating the requirements that must be met for all
engineers. Because of modern railway
practices, the state statute, purportedly applying to conductors, actually
applies to engineers. This is conceded
by the State when it cites approvingly the report of the OCT: “[T]he engineer now carries extraordinary
responsibilities and is, in effect, a combination engineer and conductor.” Because the traditional conductor functions
have been subsumed into the duties of the engineer, the conductor law addresses
the same safety concerns as the federal regulations for engineers.
In sum, the State argues
that while the federal government prescribes minimum safety requirements for
locomotive engineers, it has not done so concerning conductors. The State posits that because the two
positions have differing job descriptions, the federal regulations do not subsume
the field as to conductors. We conclude,
however, that the federal term “train operators” incorporates the traditional
conductor job description and, therefore, the federal law subsumes the
field. The conductor law is thereby
preempted by the federal regulation of engineers.
The application of 49
U.S.C. § 20106 does allow states to “adopt or continue in force an additional
or more stringent law, regulation, or order related to railroad safety when the
law, regulation, or order ... is necessary to eliminate or reduce an
essentially local safety hazard.” Id. Because we have concluded that the conductor
law is applicable to engineers, it represents an additional or more stringent
law than the federal regulations.
However, the State concedes that it “does not contend that sec. 192.255,
Stats., relates to any such localized hazard.”
Preemption cannot be denied on this basis.
We conclude that the
subject matter of § 192.255, Stats.,
as it relates to conductors is substantially subsumed by the federal regulation
of locomotive engineers. We therefore
reverse the trial court and grant summary judgment to Wisconsin Central.
By the Court.—Order
reversed.
[1] Wisconsin Central Transportation Corporation is the holding company for the two named railroads. The railroads will be referred to collectively as “Wisconsin Central.”
[2] Section 192.255, Stats., also includes qualifications for flagmen. The issue of preemption with regard to flagmen was not raised. This opinion addresses preemption of that part of the statute pertaining to conductors only.
[4] This agreement stated that the Office of the Commissioner of Transportation would extend the existing stay in the administrative proceeding for six months. The motivation for the agreement was a belief that additional federal regulations then under consideration would be “sufficiently broad that all of [Wisconsin Central's] on-train personnel, including those previously referenced as conductors, will qualify for certification under the anticipated federal regulations.” In exchange, Wisconsin Central agreed to dismiss the federal lawsuit without prejudice.
[5] In response to Chicago & N.W. Ry. v. LaFollette, 43 Wis.2d 631, 658, 169 N.W.2d 441, 454 (1969) (calling upon the legislature to review the full crew requirements), the legislature repealed §§ 192.25 and 192.26, Stats., 1969. See Laws of 1971, ch. 306, §§ 1, 2. In 1983, two remaining sections, § 192.23, Stats., 1981‑82 (qualifications for railroad telegraphers) and § 192.24, Stats., 1981-82 (hours of duty for railroad employees), were also repealed. See 1983 Wis. Act 501, § 3.
[7] While it is not clear from the record how prevalent the two-person crew is among other railroads, there is no suggestion that Wisconsin Central's crew assignment practices are inadequate in any way.
[8] The report of the OCT recognized this fact
when it stated:
[I]t is the conclusion of the Office that the ... personnel designated as engineers on the Wisconsin Central Ltd. are not only engineers but are also conductors for the purpose of § 192.255, Wis. Stats. ... [T]he engineer now carries extraordinary responsibilities and is, in effect, a combination engineer and conductor.