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Date: 05-13-2020
Case Style:
STATE OF OHIO v.
CSX TRANSPORTATION, INC
Case Number: 14-19-07
14-19-08
14-19-09
Judge: Stephen R. Shaw
Court: IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
Plaintiff's Attorney: Rick Rodger
Defendant's Attorney:
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} Plaintiff-appellant, the State of Ohio (the “State”) appeals the February
26, 2019 judgment entries of dismissal issued by the Marysville Municipal Court,
which granted the motions to dismiss filed by CSX Transportation, Inc. (“CSX”)
regarding five separate complaints alleging CSX violated R.C. 5589.21, also known
as “Ohio’s blocked crossing statute.” On appeal, the State challenges the trial
court’s determination that the Ohio statute is preempted by federal law, specifically
the Interstate Commerce Commission Termination Act of 1995 (“ICCTA”), 49
U.S.C. § 10101, et seq.
{¶2} Section 5589.21 of the Revised Code prohibits a railroad company from
obstructing public roads for longer than five minutes, to the hindrance or
inconvenience of travelers or a person passing along or upon such street, road, or
highway, with two limited exceptions: when the obstruction is caused (1) by a
continuously moving through train; or (2) by circumstances wholly beyond the
control of the railroad company. R.C. 5589.21(A),(C). The statute further specifies
that the prohibition “does apply to other obstructions, including without limitation
those caused by stopped trains and trains engaged in switching, loading, or
unloading operations.” Id.
{¶3} During a six month period from May 12, 2018 to November 8, 2018,
the Union County Sherriff’s Office filed five citations against CSX, charging it with
Case Nos. 14-19-07, 08, 09, 10, 11
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violations of R.C. 5589.21(A), a misdemeanor of the first degree. See R.C.
5589.99(D)(stating the penalty for each violation is a $1,000 fine). The citations
each indicated that CSX had stopped its train, blocking a public railroad crossing
for over an hour with no mechanical issue causing the train to be stationary. The
citations further indicated that CSX’s conduct hindered traffic and caused
inconvenience to motorists. CSX entered a not guilty plea to the charges.1
{¶4} CSX filed a motion to dismiss in each case arguing that the prohibition
contained in R.C. 5589.21(A), specifically the prohibition of CSX’s conduct of
allowing its trains to remain stationary while obstructing a public railroad crossing
for longer than five minutes which results in impeding automobile traffic while it
services its customer, “is indefensible” because R.C. 5589.21 is preempted by the
Interstate Commerce Commission Termination Act of 1995 (“ICCTA”), 49 U.S.C.
§ 10101, et seq., and the Federal Railroad Safety Authorization Act (“FRSA”), 49
U.S.C., § 20101, et seq. (Doc. No. 33 at 2).
{¶5} CSX attached to its motions the affidavits of Blair Johnson, the
Assistant Superintendent of the Midwest Region of CSX, who oversees operating
personnel responsible for moving trains in and out of the Honda plant located near
1
Even though these cases were filed as five separate cases at the trial court level, they were consolidated for
consideration by the trial court and for purposes of appeal. For ease of discussion, we will use the docketing
pagination in case number 18 CRB 00400, appellate number 14-19-07, when making reference to the record.
Case Nos. 14-19-07, 08, 09, 10, 11
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Marysville, Ohio.2
Johnson acknowledged that CSX’s trains consistently obstruct
public railroad crossings while loading and unloading goods and supplies and/or
entering and exiting the automotive plant. Johnson averred that CSX was engaged
in such activities when it received three of the citations at issue in this case. Johnson
further claimed that while servicing the Honda plant in this manner “it is not possible
for CSX to comply with the Ohio blocked crossing statute with respect to train
speed, length and/or scheduling, the regulations of which are governed exclusively
by federal law.” (Doc. No. 33).
{¶6} Johnson also stated that the train involved in the citation generating case
number 18CRB440 was required to pull onto a side track so that another train
traveling in the opposite direction could pass on the single train line, and as a result
the CSX train blocked the crossing for longer than five minutes. Johnson further
explained that in case number 18CRB606 the CSX train involved was required to
stop and block the crossing because another train traveling ahead of it on the same
track had come to a stop due to mechanical safety issues. Thus, CSX maintained
that two of the incidents underlying the citations were wholly beyond its control.
2
Due to the fact that these cases were resolved by granting a motion to dismiss at the trial court level prior
to any formal evidence being presented in this misdemeanor matter, our references to the affidavits and
exhibits or diagrams attached to the parties’ motion to dismiss and response are simply to illustrate the
arguments that are characteristic of this sort of litigation without making any evaluations as to the evidentiary
weight of these exhibits.
Case Nos. 14-19-07, 08, 09, 10, 11
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{¶7} This notwithstanding, CSX argued that the ICCTA and FRSA both
contain express provisions regulating the operation of its trains which preempted
any attempt by the State to dictate the length of time that CSX’s trains could obstruct
a public railroad crossing under R.C. 5589.21. CSX further cited to several state
and federal case authorities supporting its position that the citations issued by the
State for violating R.C. 5589.21 should be dismissed on federal preemption grounds.
{¶8} The State filed a response opposing CSX’s motions to dismiss. The
State argued that the FRSA expressly allows for state regulation in the area of
railroad crossing safety as an exercise of its traditional police powers, and that the
ICCTA does not expressly preempt the conduct specifically prohibited by R.C.
5589.21 because the core concern of the ICCTA is to regulate railroad carrier
economics and finance rather than the railroad company’s use of public railroad
crossings. The State highlighted the language of R.C. 5589.20, in which the Ohio
Legislature specifically expressed its intent to protect the health, safety and welfare
of Ohio’s citizens by enacting R.C. 5589.21 et seq., and argued that there is no
unreasonable burden placed on CSX to comply with both R.C. 5589.21 and federal
regulations. In support of its position that the health and safety of its citizens are of
paramount concern under R.C. 5589.21(A), the State attached a diagram to its
response demonstrating that at least two fire stations were severed from immediate
access to their response areas when CSX obstructed the public railroad crossings.
Case Nos. 14-19-07, 08, 09, 10, 11
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{¶9} On February 26, 2019, the trial court issued an entry of dismissal in
each case finding that Ohio’s blocked crossing statute, R.C. 5589.21, is preempted
by the ICCTA. Specifically, the trial court found that the ICCTA contained a
provision expressly preempting R.C. 5589.21. In addition, the trial court praised
the State’s efforts to defend the sanctity of its exercise of traditional police powers
to protect the health and safety of its citizens, but nonetheless felt obliged to follow
the case authority cited by CSX in support of dismissal. Specifically, the trial court
stated:
The brief submitted by the State herein was a commendable effort
to uphold the intention of Ohio’s legislature to protect the public
by assuring the timely movement of emergency medical, law
enforcement, and firefighter vehicles, as well as the movement of
other travelers on our roadways. CSX pointedly failed to cite any
Federal regulation specifically addressing the critical importance
of the timely passage of emergency and law enforcement vehicles.
The absence of Federal regulation does not allow for state
regulation if the Federal preemption is explicit.
Congress unambiguously and explicitly chose to preempt what is
arguably common sense state regulation while making no direct
provision for the safety of the public. Perhaps Congress assumed
the Surface Transportation board would adopt a uniformly
applied regulation to address the same issues as Ohio’s blocked
crossing statute. However, the only remedy available to the people
of Ohio is to direct their concerns to Congress and Federal
officials.
(Doc. No. 30 at 4).
{¶10} It is from these judgment entries of dismissal that the State now
appeals, asserting the following assignment of error.
Case Nos. 14-19-07, 08, 09, 10, 11
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THE TRIAL COURT ERRED IN FINDING THAT OHIO
REVISED CODE SECTION 5589.21 IS PRE-EMPTED BY
FEDERAL LAW AND DISMISSING THE COMPLAINTS
FILED WITH THE COURT.
{¶11} In its sole assignment of error, the State argues the trial court erred in
determining that the ICCTA explicitly preempts R.C. 5589.21.
Standard of Review
{¶12} The issue in this case presents a question of law—specifically, whether
federal law preempts Ohio’s blocked crossing statute, R.C. 5589.21. We review a
question of law under a de novo standard of review without deference to the trial
court’s decision. State ex rel. Yost v. Volkswagen Aktiengesellschaft, 10 Dist.
Franklin No. 19AP-7, 2019-Ohio-5084, ¶ 12, citing Bailey v. Manor Care of
Mayfield Hts., 8th Dist. Cuyahoga No. 99798, 2013-Ohio-4927, ¶ 12.
Federal Preemption of State Law
{¶13} It has “long been settled” that a preemption analysis begins with the
presumption that federal statutes do not preempt state law. Bond v. United States,
572 U.S. 844, 858, 134 S.Ct. 2077 (2014). The presumption against preemption
comes from two concepts embedded in the United States Constitution: the
Supremacy Clause and federalism. See Arizona v. United States, 567 U.S. 387, 398,
132 S.Ct. 2492 (2012).
{¶14} Pursuant to the Supremacy Clause of the United States Constitution,
the United States Congress has the power to preempt state laws. In re Miamisburg
Case Nos. 14-19-07, 08, 09, 10, 11
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Train Derailment Litigation, 68 Ohio St.3d 255, 259 (1994). Specifically, the
Supremacy Clause provides that “the Laws of the United States * * * shall be the
supreme Law of the Land; and the Judges in every State shall be bound thereby,
anything in the Constitution or Laws of any State to the contrary notwithstanding.”
U.S. Constitution, Article VI, cl. 2.
{¶15} However, federalism, which is also “central to the constitutional
design, adopts the principle that both the National and State Governments have
elements of sovereignty the other is bound to respect.” Arizona at 399, 132 S.Ct.
2492, citing Gregory v. Ashcroft, 501 U.S. 452, 457, 111 S.Ct. 2395 (1991); U.S.
Term Limits, Inc. v. Thornton, 514 U.S. 779, 838, 115 S.Ct. 1842 (1995) (Kennedy,
J., concurring). “[B]ecause the States are independent sovereigns in our federal
system,” the United States Supreme Court has “long presumed that Congress does
not cavalierly pre-empt state-law causes of action.” Medtronic, Inc. v. Lohr, 518
U.S. 470, 485, 116 S.Ct. 2240 (1996). The “historic police powers of the states are
not to be superseded by federal law unless that is the clear and manifest purpose of
Congress,” and therefore “a presumption exists against preemption of state policepower regulations.” Darby v. A-Best Prods. Co., 102 Ohio St.3d 410, 2004-Ohio3720, ¶ 27; PNH, Inc. v. Alfa Laval Flow, Inc., 130 Ohio St.3d 278, 2011-Ohio4398, ¶ 18; Wyeth v. Levine, 555 U.S. 555, 565, 129 S.Ct. 1187 (2009). A traditional
Case Nos. 14-19-07, 08, 09, 10, 11
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exercise of the states’ “police powers [is] to protect the health and safety of their
citizens.” Medtronic at 475, 116 S.Ct. 2240.
{¶16} There are three ways federal law can preempt state law: (1) where
federal law expressly preempts state law (express preemption); (2) where federal
law has occupied the entire field (field preemption); or (3) where there is a conflict
between federal law and state law (conflict preemption). Norfolk S. Ry. Co. v. Bogle,
115 Ohio St.3d 455, 2007-Ohio-5248, ¶ 7.
{¶17} As previously mentioned, Ohio’s blocked crossing statute is codified
in Section 5589.21 of the Revised Code, which provides that:
(A) No railroad company shall obstruct, or permit or cause to be
obstructed a public street, road, or highway, by permitting a
railroad car, locomotive, or other obstruction to remain upon or
across it for longer than five minutes, to the hindrance or
inconvenience of travelers or a person passing along or upon such
street, road, or highway.
(B) At the end of each five minute period of obstruction of a
public street, road, or highway, each railroad company shall
cause such railroad car, locomotive, or other obstruction to be
removed for sufficient time, not less than three minutes, to allow
the passage of persons and vehicles waiting to cross.
(C) This section does not apply to obstruction of a public street,
road, or highway by a continuously moving through train or
caused by circumstances wholly beyond the control of the railroad
company, but does apply to other obstructions, including without
limitation those caused by stopped trains and trains engaged in
switching, loading, or unloading operations.
(D) If a railroad car, locomotive, or other obstruction is
obstructing a public street, road, or highway in violation of
Case Nos. 14-19-07, 08, 09, 10, 11
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division (A) of this section and the violation occurs in the
unincorporated area of one or more counties, or in one or more
municipal corporations, the officers and employees of each
affected county or municipal corporation may charge the railroad
company with only one violation of the law arising from the same
facts and circumstances and the same act.
(E) Upon the filing of an affidavit or complaint for violation of
division (A) of this section, summons shall be issued to the
railroad company pursuant to division (B) of section 2935.10 of
the Revised Code, which summons shall be served on the regular
ticket or freight agent of the company in the county where the
offense occurred.
Relevant Federal Authority
{¶18} The trial court found that R.C. 5589.21 is expressly preempted by the
ICCTA. Passed by Congress in 1995, “[t]he ICCTA was enacted to encourage
competitive rates for rail transportation, to minimize regulatory control, and to
promote efficiency as well as public health and safety.” Girad v. Youngstown Belt
Ry. Co., 134 Ohio St. 3d 79, 2012-Ohio-5370, ¶ 18, citing 49 U.S.C. § 10101 et seq.
In order to achieve this end, Congress abolished the Interstate Commerce
Commission and created the Surface Transportation Board (“STB”). Under the
ICCTA, the STB was granted exclusive jurisdiction over certain aspects of interstate
rail activity:
(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
Case Nos. 14-19-07, 08, 09, 10, 11
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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.
49 U.S.C. § 10501(b) (emphasis added). The ICCTA defines “transportation” to
include:
(A) a locomotive, car, vehicle, vessel, warehouse, wharf, pier,
dock, yard, property, facility, instrumentality, or equipment of
any kind related to the movement of passengers or property, or
both, by rail, regardless of ownership or an agreement concerning
use; and
(B) services related to that movement, including receipt,
delivery, elevation, transfer in transit, refrigeration, icing,
ventilation, storage, handling, and interchange of passengers and
property.
49 U.S.C. § 10102(9) (emphasis added).
{¶19} The trial court relied on various cases cited by CSX in its motion to
dismiss to conclude that section § 10501(b) of the ICCTA “amounts to an express
preemption of Ohio’s blocked crossing statute.” (Doc. No. 30 at 3). These cases
rely upon the premise that the anti-blocking statute is a state remedy that directly
regulates rail transportation, the jurisdiction of which is conferred exclusively to
Case Nos. 14-19-07, 08, 09, 10, 11
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the STB. Therefore, such a remedy as one provided for in R.C. 5589.21 is expressly
preempted by the ICCTA.3
See e.g., State v. Norfolk S. Ry. Co., 107 N.E.3d 468,
472 (Ind. 2018)(finding the ICCTA both expressly and categorically preempted
Indiana’s blocked crossing statute); See also, State v. BNSF Ry. Co., 56 Kan.App.2d
503, 518 (2018)(concluding that Kansas’s anti-blocking statute is preempted by the
ICCTA because it “infringes on the exclusive jurisdiction of the STB to regulate the
rail transportation system in the United States”); CSX Transportation, Inc., v.
Williams, N.D.Ohio No. 3:16CV2242, 2017 WL 1544958 (Apr. 28, 2017)(issuing
a declaratory judgment finding that “the ICCTA categorically preempts R.C.
5589.21 because it purports to regulate rail transportation by dictating how railroads
conduct their operations at crossings”).
{¶20} In determining whether a state action “regulates” rail transportation
and thus is preempted under the ICCTA, the Supreme Court of Ohio, in the context
of a state eminent-domain action over a parcel of property owned by a railway
company, adopted the approach from various federal circuit courts that “Congress
narrowly tailored the ICCTA pre-emption provision to displace only ‘regulation,’
i.e., those state laws that may reasonably be said to have the effect of ‘manag[ing]’
or ‘govern[ing]’ rail transportation, Black’s Law Dictionary 1286 (6th Ed.1990),
3
Some of these cases cited by the trial court invalidate R.C. 5589.21 solely on the grounds that it is preempted
by the FRSA, rather than the ICCTA. Although not expressly stated in its reasoning, the trial court appears
to also tacitly endorse the alternative conclusion that R.C. 5589.21 is also preempted by the FRSA.
Case Nos. 14-19-07, 08, 09, 10, 11
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while permitting the continued application of laws having a more remote or
incidental effect on rail transportation.” Youngstown Belt Ry., 134 Ohio St.3d 79,
2012-Ohio-5370, ¶ 23 (2012), quoting Florida E. Coast Ry. Co. v. W. Palm Beach,
266 F.3d 1324, 1331 (11th Cir.2001); further citing, Franks Invest. Co. L.L.C. v.
Union Pacific RR. Co., 593 F.3d 404, 410 (5th Cir.2010); PCS Phosphate Co., Inc.
v. Norfolk S. Corp., 559 F.3d 212, 218 (4th Cir.2009); Adrian & Blissfield RR. Co.
v. Blissfield, 550 F.3d 533, 539 (6th Cir.2008); New York Susquehanna & W. Ry.
Corp. v. Jackson, 500 F.3d 238, 252 (3d Cir.2007).
Discussion
{¶21} In anticipation of the inevitable conflict between the federal
government safeguarding the operations of the railroad companies and the State’s
traditional police power to pass legislation protecting the health and safety of its
citizens, the Ohio Legislature enacted R.C. 5589.20, which specifically articulates
the police power interests of this State as to railroad crossings in the following terms:
The general assembly finds that the improper obstruction of
railroad grade crossings by trains is a direct threat to the health,
safety, and welfare of the citizens of this state inasmuch as
improper obstructions create uniquely different local safety
problems by preventing the timely movement of ambulances, the
vehicles of law enforcement officers and firefighters, and official
and unofficial vehicles transporting health care officials and
professionals. It is the intent of the general assembly in amending
sections 5589.21, 5589.24, and 5589.99 of the Revised Code that
the health, safety, and welfare of the citizens of this state be
enhanced through those amendments.
Case Nos. 14-19-07, 08, 09, 10, 11
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R.C. 5598.20.
{¶22} In the past several years, CSX and other railroad companies, through
litigation in various jurisdictions, have successfully argued to either significantly
marginalize or judicially nullify statutes such as R.C. 5589.20 on the grounds that
the state police power articulated in such statutes is pre-empted and superseded by
the Supremacy Clause, at least insofar as it pertains to any railroad company. The
legal and practical impact of any court ruling in favor of this position is that state
and local municipalities are without any authority to implement their traditional
police powers to protect the health, safety, and welfare of their citizens by ensuring
that public roadways are free from prolonged obstruction by a railroad company.
{¶23} At the core of any such ruling is acceptance of the railroad’s position
that virtually all conduct of the railroad company at these public crossings can be
construed as “transportation,” and “operation,” and that any attempt by the State to
legislate in this area, other than perhaps provisions directed to merely maintaining
the public roadways near the crossings and the like, constitutes impermissible
“management” or “governance” of the railroad operation under the ICCTA. This
proposition in turn endorses CSX’s interpretation of its own conduct, regardless of
its purpose or community impact, as always constituting “federal action” on national
rail transportation per se so as to leave no room for the exercise of state police
Case Nos. 14-19-07, 08, 09, 10, 11
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powers to occupy the same sphere, essentially rendering any concept of federalism
irrelevant in this specific circumstance.
{¶24} For the State’s part, it is argued that at its core, R.C. 5589.21 only
imposes an economic cost upon CSX for obstructing a public railroad crossing for
longer than five minutes, unless the train is continuously moving or the obstruction
of the crossing is caused by circumstances wholly beyond the control of the railroad
company. As such, while there may be a deterrent effort expressed in the statute,
the legislation itself contains no language that could be construed as otherwise
managing or governing the operations of CSX or interfering with rail
“transportation.”
{¶25} In other words, the effect of R.C. 5589.21 on rail transportation is
merely incidental or remote due to the fact that if CSX and other railroad companies
continue to choose to manage and conduct their operations as they presently do,
without regard to whether or not they comply with R.C. 5589.21, they could be
required to pay a monetary fine on some of those occasions when they do not.
Arguably, the instances where the railroad may be subject to the imposition of such
a cost are negligible, both in terms of the totality of railroad operations in the State,
and when compared to the inconvenience and the diminished efficiency of first
responders that the locality surrounding the obstructed public railroad crossing may
experience.
Case Nos. 14-19-07, 08, 09, 10, 11
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{¶26} At the outset, we recognize that many of the arguments raised by the
State have been made and rejected by a growing number of state and federal courts
which have reached the conclusion that state anti-blocking statutes are preempted
(expressly, categorically, or both) by the ICCTA. Nevertheless, we find the
circumstances and arguments raised by CSX in the case before us to be
distinguishable from many of those cases in at least one important respect.
{¶27} The majority of court decisions cited by CSX contain an evidentiary
record of some kind originating from a trial or other hearing. As a result, multiple
circumstances, such as the public safety conditions actually affected by the
particular blockage or the nature of the specific railroad operations allegedly
necessitating the crossing blockage, were considered and often weighed or at least
reviewed by the court in reaching the conclusion that the interests of the railroad
under the federal statutes must prevail over the police power interest of the state in
a particular instance, or perhaps that the railroad conduct in that instance fit within
a specific exception under the state crossing statute.
{¶28} Unlike those decisions, the case before us was decided on a motion to
dismiss as a matter of law, without any evidentiary record, (or as noted earlier, only
a marginal record in the form of very general affidavits attached to the motions) and
thus without any consideration of any of those factual issues or circumstances. As a
result, CSX was able to effectively argue and obtain a ruling from the trial court in
Case Nos. 14-19-07, 08, 09, 10, 11
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this case, that any consideration of either the public safety of the local community
at the crossing or the specific necessity or purpose for the particular railroad
operations at the time of the crossing blockage, or even any weighing of the general
public policy underlying the statute or the general economic interests behind the
railroad’s conduct, is entirely irrelevant, as a matter of law.
{¶29} In other words, we believe the ruling obtained by CSX and under
review in this case is uniquely sweeping in that it essentially holds that any attempt
by the State to legislate regarding the conduct of a railroad at a railroad crossing in
this state constitutes per se impermissible “governance,” “management” and
“significant interference” with the federal transportation and operation interests of
the railroad under the ICCTA and is therefore void ab initio.
{¶30} We fundamentally disagree with the foregoing proposition and we
therefore respectfully decline to accept or adopt it.
{¶31} We have already acknowledged and cited a number of federal and state
courts from around the country, which seem to have accepted and adopted the
interpretations of the ICCTA and its impact upon R.C.5589.21 set forth above, but
which are not binding on any Ohio Court and which we have declined to follow. As
such, it is our view that the matters determined by our ruling in this case clearly
raise a substantial constitutional question and presents an issue of great public
importance in Ohio regarding the fundamental police powers of the state legislature
Case Nos. 14-19-07, 08, 09, 10, 11
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to protect the public safety and welfare, not to mention fundamental notions of
federalism, which can appropriately be decided and resolved only by the Supreme
Court of Ohio.
{¶32} Perhaps stated in more practical terms, it is our view that if any Ohio
court is going to adopt and incorporate the judicial determination of other
jurisdictions as the law of Ohio that under the ICCTA, a railroad company has
untrammeled discretion to block any rail crossing in any community in the state for
any purpose, for any amount of time, regardless of its reasons or operational
necessity, and regardless of the jeopardy to the public health, safety and welfare of
the citizens caused by that blocked crossing; and that any legislation enacted by the
duly elected state legislature to address those specific public health, safety and
welfare concerns in terms which even remotely appear designed to influence or
dissuade the behavior of the railroad company at such a crossing, is null and voiab initio, then the court making that ruling should be the Supreme Court of Ohio.
Outcome: For the foregoing reasons, the State’s assignment of error is sustained
and the judgments of the trial court are reversed and remanded for further
proceedings consistent with this opinion.
Plaintiff's Experts:
Defendant's Experts:
Comments: