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Bar News - March 22, 2013


NH Case Goes to the US Supreme Court

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This is an updated and corrected version of the article published in the March 22 print edition of the Bar News, including reporting from the March 20 oral argument. The earlier version incorrectly stated that respondent Robert Pelkey was hospitalized when his car was towed. This story also properly indicates that the results of a judgment in a separate case between Pelkey and his landlord remain unknown.


Brian Shaughnessy (above), who represented Robert Pelkey, and Kate Strickland and Andre Bouffard for Dan's City Auto (below), stopped for interviews and photos on the US Supreme Court steps after oral arguments March 20.
A New Hampshire civil case that pits federal preemption against state consumer protection laws awaits a decision by the US Supreme Court that will clarify states’ authority to regulate the motor transport industry.

Brian Shaughnessy’s disabled client, Robert Pelkey, can no longer drive, but the suit revolves around Pelkey’s fight to retrieve or be compensated for his 2004 Honda Civic. The car was towed from his Manchester apartment complex during a winter parking ban six years ago while he was suffering from a foot infection. Shaughnessy argues the federal laws designed to streamline regulations for motor carriers should not extend to nonconsensual towing and that if the state’s consumer protection laws are preempted, so too are the ones that allow the plaintiff, Dan’s City Used Cars, to auction or trade the vehicles it tows without owner consent.

After the trial court ruled against Pelkey, the New Hampshire Supreme Court last spring found in his favor. Representing Dan’s City Used Cars, Kate Strickland of Downs Rachlin Martin PLLC worked with other attorneys in her firm to prepare and submit a writ of cert to the US Supreme Court last summer, arguing that the Court should address the question of limitations on the preemption statute, which was modeled after a similar preemption provision that deals with the airline industry.

“It’s an area where the lower courts obviously need some more direction,” Strickland said.

The case hinges on whether the storage and sale of an abandoned vehicle that occurs after the vehicle is towed without the owner’s permission is “related to” the primary service of the tow truck company. Strickland and her co-counsel, Burlington, Vt.-based appellate practitioner Andre Bouffard, argue they are and that claims related to those activities are therefore preempted by federal law. Shaughnessy contends the storage and sale are separate from the actual towing or transportation of property.

On March 20, the US Supreme Court heard oral arguments in Dan’s City Used Cars v. Pelkey, and the tenor of the questioning by the justices suggested that they intend to set clear limits on the scope of federal preemption authorized by Section 14501 of the US Transportation Code, which was designed to free the trucking industry from having to adhere to a range of various state regulations.

Bouffard managed to utter two whole sentences before Justice Ruth Bader Ginsburg set about tearing his argument down. She pointed out that abandoned vehicles aren’t the exclusive province of trucking companies.

“This same thing could happen with a garage owner…” said Ginsburg, who might have seemed soft-spoken and frail, were it not for a Washington Post article published in that morning’s paper that discussed her exercise regimen and ability to crank out 20 push-ups. “So there’s noting peculiar about being in the towing business that makes this … storage statute apply.”

Bouffard responded that Pelkey’s claims were based on the state’s consumer protection laws, not the abandoned vehicle statute, at which point Justices Breyer and Scalia said Bouffard seemed to be arguing against himself.

“It seems to me you are running in the wrong direction,” Scalia said. “To the extent you say the case doesn’t involve New Hampshire’s towing law but involves just its general consumer protection law, it’s – it’s even further from being preempted.”

As the lawyers on both sides – and Lewis Yelin from the US Solicitor General’s Office, who used 10 minutes of Shaughnessy’s argument time – withstood a barrage of questions and hypothetical scenarios fired off by the nine justices, it seemed the outcome of the case might reinforce the jurisdiction of state consumer protection laws over the seizure of private property.

Following the court’s acceptance of the case in December, Strickland worked with Bouffard to prepare for oral arguments.

Several amicus briefs in support of Pelkey have been filed in the case, including one by the Towing and Recovery Association of America. The NH Attorney General joined 22 other states in an amicus supporting Pelkey. Shaughnessy also has received help from the Public Citizen Litigation Group in Washington and was joined at oral arguments by an attorney there who is a member of the US Supreme Court Bar.

“This little dinky case becomes much more complicated when all these other interests are added in,” said Shaughnessy, adding that he has mixed feelings about going to the High Court. “For my client, it would be better if the case was not accepted.”

Shaughnessy said he hasn’t billed Pelkey in “several years” for his work on the case, which is now worth upwards of $20,000. If a separate claim against Pelkey’s landlord is successful, it’s possible that the landlord could be required to pay Pelkey’s attorney fees.

Both sides enlisted law students, professors and fellow bar members to act as justices during moot court practice sessions. Shaughnessy’s daughter, Kimberly, is a first-year law student at UNH School of Law and brought the case to the attention of her class, which held a moot court earlier this month.

Shaughnessy and his daughter also attended moot court sessions with the Solicitor General’s office and other federal officials in Washington, DC, the day before oral argument.

The April print edition of NH Bar News will contain an extended article with more reporting from the March 20 oral arguments in Washington, as well as coverage of a separate New Hampshire case heard by the Supreme Court that same week.

RELATED: Dan's City v. Robert Pelkey/U.S. Supreme Court Pleadings

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