Tillison v. Gregoire
| Decision Date | 19 September 2005 |
| Docket Number | No. 04-35539.,04-35539. |
| Citation | 424 F.3d 1093 |
| Parties | John TILLISON, dba West Coast Towing Services, Plaintiff-Appellant, v. Christine GREGOIRE, in her official capacity as Governor of the State of Washington; Rob McKenna, in his official capacity as Attorney General for the State of Washington, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Todd J. Hilts, San Diego, CA, for the plaintiff-appellant.
Diane L. McDaniel, Assistant Attorney General, Olympia, WA, for the defendants-appellees.
Appeal from the United States District Court for the Western District of Washington; Franklin D. Burgess, District Judge, Presiding.** D.C. No. CV-03-05514-FDB.
Before: PREGERSON, GRABER, and GOULD, Circuit Judges.
Appellant-Plaintiff John Tillison d/b/a West Coast Towing Services ("Tillison") challenges Revised Code of Washington section 46.55.080(2), which restricts patrol and non-consensual towing by: (1) requiring a towing company to obtain written authorization from a private property owner before towing a vehicle from the private property, or from a public official before towing a vehicle from public property, without the vehicle owner's permission; (2) requiring the private property owner or the public official be present for the tow; and (3) prohibiting the towing company from serving as an agent for the private property owner or the public official. Tillison claims that Revised Code of Washington section 46.55.080(2) is preempted by the Federal Aviation Administration Authorization Act of 1994 ("FAAAA"), Pub.L. No. 103-305, § 601(c), 108 Stat. 1569, 1606, 49 U.S.C. §§ 14501-14505, which governs the prices, routes, or services of motor carriers transporting property (including tow truck operators).1 Tillison was recently unsuccessful in a similar challenge of a similar California law regulating patrol and non-consensual towing. See Tillison v. City of San Diego, 406 F.3d 1126 (9th Cir.2005).
Tillison timely appealed the district court's order granting Washington State's summary judgment motion and dismissing his cause of action. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Tillison is a "registered tow truck operator" licensed by the Washington State Department of Licensing. See Wash. Rev.Code § 46.55.010 (1999) amended by 2005 Wash. Legis. Serv. 88 (West) ("`Registered tow truck operator' or `operator' means any person who engages in the impounding, transporting, or storage of unauthorized vehicles or the disposal of abandoned vehicles."). If a vehicle in the State of Washington is parked in violation of certain time restrictions, the vehicle
may be impounded by a registered tow truck operator at the direction of a law enforcement officer or other public official with jurisdiction if the vehicle is on public property, or at the direction of the property owner or an agent if it is on private property. A law enforcement officer may also direct the impoundment of a vehicle pursuant to a writ or court order.
Wash. Rev.Code § 46.55.080(1). Tillison conducts patrol and non-consensual towing of vehicles illegally parked in violation of Revised Code of Washington section 46.55.080(1). Patrol and non-consensual towing includes removing and impounding illegally parked vehicles on private property under a general authorization from the private property owner or impounding illegally parked vehicles on public property under authorization from a public official. In essence, a tow truck operator, like Tillison, acts as the agent for the private property owner or a public official and has permission to remove vehicles illegally parked on the private or public property, without first obtaining a signed authorization from the private property owner or the public official at the time and place of the tow. This practice violates Revised Code of Washington section 46.55.080(2) which requires that before an illegally parked vehicle is towed,
[t]he person requesting a private impound or a law enforcement officer or public official requesting a public impound shall provide a signed authorization for the impound at the time and place of the impound to the registered tow truck operator before the operator may proceed with the impound. A registered tow truck operator, employee, or his or her agent may not serve as an agent of a property owner for the purposes of signing an impound authorization or, independent of the property owner, identify a vehicle for impound.2
Wash. Rev.Code § 46.55.080(2).
On September 22, 2003, Tillison sought declaratory relief under 28 U.S.C. § 2201 in United States District Court for the Western District of Washington. In his complaint, Tillison initially challenged Revised Code of Washington sections 46.55.080(2), 46.55.120(1)(e) and (2)(a). Tillison claimed these three provisions were preempted by section 14501(c)(1) of FAAAA, which provides that "a State [or] political subdivision of a State ... may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier ... with respect to the transportation of property." 49 U.S.C. § 14501(c)(1). According to Tillison, section 14501(c)(1) of FAAAA preempted Washington State's regulation of tow truck operators' prices, routes, or services.
While Tillison's suit against the State was underway, the district court stayed the action, pending resolution of Independent Towers of Washington v. Washington, 350 F.3d 925 (9th Cir.2003) ("ITOW"), by our court. ITOW was a class action brought on behalf of all towing companies in Washington against the State.
In the meantime, the State received numerous complaints concerning Tillison's towing of vehicles. Because of these complaints, state and municipal law enforcement officers conducted an investigation of Tillison's towing practices. The results of the investigations were submitted to the Washington State Department of Licensing.
After our mandate issued in ITOW, the district court in the instant case vacated its stay on February 26, 2004.3 On the same day, the Department of Licensing served Tillison with a "Statement of Charges" and a "Temporary Order to Cease and Desist." The Department of Licensing ordered Tillison to stop violating Revised Code of Washington sections 46.55.035(1)(c) and 46.55.080(2). See Wash. Rev.Code § 46.55.035(1)(c) (); Wash. Rev.Code § 46.55.080(2) ().
Tillison moved the district court for a temporary restraining order and/or preliminary injunction to enjoin the State from further investigating his business and from enforcing Revised Code of Washington sections 46.55.080(2), 46.55.120(1)(e) and (2)(a). On March 5, 2004, the district court denied Tillison's motion for a temporary restraining order. Nearly a month later, the court denied Tillison's motion for a preliminary injunction. Tillison did not appeal.
Shortly thereafter, the State moved for summary judgment against Tillison. According to the State, Revised Code of Washington sections 46.55.080(2), 46.55.120(1)(e) and (2)(a) were not preempted by FAAAA because the provisions: (1) were enacted and enforced pursuant to the safety regulatory authority of Washington State, (2) were not related to "route" or "service," or (3) were related to the price of non-consensual towing. The district court agreed and granted summary judgment in favor of the State. The court entered final judgment against Tillison on June 11, 2004.
In the current appeal, Tillison only challenges Revised Code of Washington section 46.55.080(2) and has conceded that sections 46.55.120(1)(e) and (2)(a) are not preempted by FAAAA. Tillison now appeals the district court's order granting summary judgment in favor of the State, and argues that the district court erred in ruling that section 46.55.080(2) was not preempted by FAAAA.
We review a district court's decision regarding federal preemption de novo. See Californians for Safe & Competitive Dump Truck Transp. v. Mendonca, 152 F.3d 1184, 1186 (9th Cir.1998); Alexander v. Glickman, 139 F.3d 733, 735 (9th Cir.1998). We also review the district court's interpretation and construction of FAAAA de novo. See AGG Enters. v. Washington County, 281 F.3d 1324, 1327 (9th Cir.2002).
Preemption analysis begins with the "presumption that Congress does not intend to supplant state law." N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995). Although Congress clearly intended FAAAA to preempt some state regulations of motor carriers who transport property, the scope of the pre-emption must be tempered by the "presumption against the pre-emption of state police power regulations." Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (internal quotation marks omitted).
Under FAAAA, a state or local law is preempted if: (1) the law is related to a price, route, or service of any motor carrier with respect to the transportation of property, and (2) the law does not fall under one of FAAAA's regulatory exceptions. See 49 U.S.C. § 14501(c).
A recent change in the law explicitly provides that States are permitted to regulate non-consensual towing of vehicles illegally parked on private property. Specifically, on August 10, 2005, two months after this case was submitted on the briefs, the Safe,...
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