The City of Cayce v. Norfolk Southern Ry. Co.

• Citation: 706 S.E.2d 6,391 S.C. 395
• Decision Date: 07 February 2011
• Docket Number: No. 26925.,26925.
• Court: South Carolina Supreme Court
• Parties: The CITY OF CAYCE, Appellant,v.NORFOLK SOUTHERN RAILWAY COMPANY, Respondent.

391 S.C. 395

706 S.E.2d 6

The CITY OF CAYCE, Appellant,

v.NORFOLK SOUTHERN RAILWAY COMPANY, Respondent.

No. 26925.

Supreme Court of South Carolina.

Heard Nov. 17, 2010.Decided Feb. 7, 2011.

Danny C. Crowe, Shannon F. Bobertz, and R. Hawthorne Barrett, all of Turner, Padget, Graham & Laney, of Columbia, for Appellant.Ronald K. Wray and James M. Dedman, IV, both of Gallivan, White & Boyd, of Greenville, for Respondent.Gray T. Culbreath, of Collins & Lacy, of Columbia, for Amicus Curiae Association of American Railroads.Chief Justice TOAL.

The City of Cayce (“City”) cited Norfolk Southern Railway Company (“Norfolk”) for violating a public nuisance ordinance, Cayce, S.C. Code § 28–251. The citation was based on the condition of one of Norfolk's bridges that was covered with rust and graffiti. A municipal judge found Norfolk guilty of violating the ordinance. The circuit court reversed based on its determination the ordinance was preempted by federal law. The City appeals. We affirm.

Facts/Procedural Background

Norfolk is a corporation and common carrier of freight by rail. It operates trains in twenty-two states and has over 20,000 miles of track. As part of these operations, Norfolk ships goods in interstate commerce through South Carolina and maintains tracks, yards, bridges, trestles, and other facilities within the state.

Norfolk owns or has a leasehold interest in a railroad bridge crossing over U.S. Highway 321 in Cayce, South Carolina that is at the center of this dispute (“Bridge”).¹ The Bridge was constructed in 1955 and has been part of Norfolk's rail operations since that time.

In a series of communications from 2005 to 2007, the City asked Norfolk to paint the Bridge due to the rust and graffiti covering the structure. The City noted the Bridge is located on “a main thoroughfare” in the City and “is an eyesore and a nuisance” that “creates a negative impression about the City and [Norfolk] for the thousands of people who drive through and reside in the area.” The City asserted the Bridge's condition detracts from the value of property in the surrounding area. Norfolk declined, stating it did not have funds available for the refurbishment.

On May 1, 2007, the City amended its municipal ordinance, Cayce, S.C. Code § 28–251, to provide a public nuisance shall include certain structures above street grade that are “rusted.” Section 28–251 provides in relevant part as follows:

Public nuisances affecting public order shall include, but not be limited to, the following:

(1) All structures bearing graffiti;

....

(7) All privately-owned structures elevated above street grade and extending over or across public streets or highways, such as overpasses, bridges, trestles or elevated passageways, whose exterior finish is destroyed, decayed, dilapidated, deteriorated or rusted.

The 2007 amendment added only subsection (7), as subsection (1) regarding structures bearing graffiti existed in the prior version of the ordinance. ²

Thereafter in 2007, the City cited Norfolk for violating section 28–251 based on the graffiti and rust covering the Bridge. After a bench trial, the municipal judge found Norfolk guilty of violating the ordinance and fined Norfolk $500.00.

Norfolk appealed to the circuit court, which reversed the municipal judge's ruling in an order filed July 30, 2009. The circuit court concluded the municipal ordinance is preempted by both the Interstate Commerce Commission Termination Act (“ICCTA”), 49 U.S.C.A. §§ 10101–16106 (2007 & Supp.2010) and the Federal Railroad Safety Act (“FRSA”), 49 U.S.C.A. §§ 20101–20167 (2007 & Supp.2010). Based on its ruling regarding federal preemption, the circuit court noted it was unnecessary to reach the additional grounds raised by Norfolk in support of reversal. The City appeals from this order.

Standard of Review

In criminal appeals from a municipal court, the circuit court does not conduct a de novo review; rather, it reviews the case for preserved errors raised to it by an appropriate exception. City of Rock Hill v. Suchenski, 374 S.C. 12, 646 S.E.2d 879 (2007); Rogers v. State, 358 S.C. 266, 594 S.E.2d 278 (Ct.App.2004); City of Landrum v. Sarratt, 352 S.C. 139, 572 S.E.2d 476 (Ct.App.2002); see also S.C.Code Ann. § 14–25–105 (Supp.2009) ( “There shall be no trial de novo on any appeal from a municipal court.”). “Therefore, our scope of review is limited to correcting the circuit court's order for errors of law.” Suchenski, 374 S.C. at 15, 646 S.E.2d at 880; see also City of Aiken v. Koontz, 368 S.C. 542, 629 S.E.2d 686 (Ct.App.2006) (observing that in reviewing criminal cases, the appellate court's review is limited to reversal for errors of law).

Analysis

On appeal, the City argues the circuit court erred in reversing the municipal court conviction because federal law does not preempt enforcement of the City's ordinance.

The City contends that, under the plain language of the City's ordinance, structures covered by rust and graffiti fall within the definition of a public nuisance. Further, there are no factual disputes involved in this appeal as both parties agree that the Bridge had extensive rust and graffiti on it when the City issued the citation. The City argues the circuit court therefore committed an error of law in concluding the ordinance is rendered inapplicable to Norfolk based on federal preemption. We disagree.

I. Supremacy Clause

The Supremacy Clause in Article VI of the United States Constitution establishes the principle of federal preemption:

This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all Treaties made ... under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

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

Since the decision in M'Culloch v. Maryland, 17 U.S. 316, 4 Wheat. 316, 4 L.Ed. 579 (1819), it has been settled that state law that conflicts with federal law is “without effect.” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992); see also Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981) (“It is basic to this constitutional command that all conflicting state provisions be without effect.”).

The Supreme Court of the United States has held there are two cornerstones to federal preemption jurisprudence. Wyeth v. Levine, 555 U.S. 555, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009). First, the purpose of Congress is the ultimate touchstone in every preemption case. Id. at 1194. Second, in all preemption cases, particularly in those in which Congress has legislated in a field that the states have traditionally occupied, the courts start with the assumption that the historical police powers of the states were not to be superseded by the federal act unless that was the clear and manifest purpose of Congress. Id. at 1194–95.

The intent of Congress may be explicitly stated in the statute's language or implicitly contained in its structure and purpose. Altria Group, Inc. v. Good, 555 U.S. 70, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008); Cipollone, 505 U.S. at 516, 112 S.Ct. 2608. In the absence of an express congressional command, state law is preempted if the law actually conflicts with federal law, or if federal law so thoroughly occupies the legislative field as to make reasonable the inference that Congress has left no room for the states to supplement it. Altria Group, 129 S.Ct. at 543; Cipollone, 505 U.S. at 516, 112 S.Ct. 2608.

Thus, “[u]nder the principle of federal law supremacy, there are three ways that federal law can preempt state law: (1) where Congress makes its intent to preempt state law explicit in statutory language; (2) where state law regulates conduct in a field that Congress intends for the federal government to occupy exclusively; or (3) where there is an actual conflict between state and federal law.” Anderson v. BNSF Ry. Co., 375 Ark. 466, 291 S.W.3d 586, 589 (2009); see also Priester v. Cromer, 388 S.C. 425, 428, 697 S.E.2d 567, 569 (2010) (“A federal law may either expressly preempt a state law through specific language clearly stating its intent or it may impliedly preempt a state law through field preemption or conflict preemption.”).

II. ICCTA Preemption

In the current matter, the circuit court ruled the City's ordinance is preempted by the ICCTA.

“As the title of the legislation implies, ICCTA [the ICC Termination Act] abolished the Interstate Commerce Commission, while simultaneously creating the Surface Transportation Board (STB) to replace it and to perform many of the same regulatory functions.” Anderson, 291 S.W.3d at 589.

Section 10501(a)(1) of the ICCTA generally sets forth the STB's “jurisdiction over transportation by rail carrier.” 49 U.S.C.A. § 10501(a)(1) (2007). Subsection (b) provides that the jurisdiction of the STB is exclusive, and it contains an explicit preemption clause:

(b) The jurisdiction of the Board over—

(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and

(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State,

is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.

Id. § 10501(b) (emphasis added).

When a federal statute contains an express provision regarding preemption, the preemption inquiry must focus on the plain wording of that provision, which generally contains the most reliable...