(page 2 of 3)MICHAEL MCGOVERN is a Knoxville, Tennessee–based attorney who whipped the city of San Diego in federal court in 2002. He speaks with the easy, confident Southern drawl of a John Grisham character. His words are direct and his thinking sensible. The combination conveys honesty. Yet he is a top gun in what is popularly perceived to be one of the most unscrupulous jobs in the country—tow-truck driving.
McGovern grew up in a towing family and naturally fell in with the industry when he went into law. He was general counsel for the Towing & Recovery Association of America for nearly a decade and a half. Despite a string of setbacks over the past couple of years, he and the towing industry enjoyed a string of highprofile victories from 1995 through 2005 in cases that went all the way to the Supreme Court.
The seeds of those contentious years were planted in the 1970s with airline deregulation. McGovern points to the UPS/FedEx battle—a conflict that began when the U.S. Congress passed the Airline Deregulation Act (ADA) in 1978 —as a fitting metaphor for the string of congressional actions and court battles that brought him to San Diego court in 2002.
“FedEx was incorporated as an airline,” McGovern says, “and it told California, ‘Wait a minute here, we’re deregulated as part of the ADA, you can’t tell us what to do.’ UPS was still dealing with a lot of regulations, and it was costing them money. So they went to Congress and raised a stink.”
In fact, all of the trucking industry raised a stink. How was it to compete in a fair market with an industry that operated without the cost-raising onus of regulation wherein states determined how much companies could charge and the routes they used? Congress had already moved to deregulate the train and busing industries; it was a natural move to deregulate trucking. In 1980, President Jimmy Carter signed the Motor Carrier Act (MCA) into law.
In 1994, Congress updated both the ADA and the MCA with the broad Federal Aviation Administration Authorization Act (FAAAA). The bill further prohibited states from controlling routes or pricing in the airline and motor-carrier industries. Towing companies are, by definition, motor carriers, and it didn’t take long for industry movers like McGovern to realize that language in the FAAAA might help them alleviate the burden of heavy government control. In 1995, a series of court skirmishes began when tow operators in places like Dallas, New York City and Atlanta began suing cities and municipalities, saying price restrictions and permit policies were preempted by the FAAAA. The courts agreed.
IN 2000, MCGOVERN WON a landmark battle in the case of Tocher vs. Santa Ana. A federal appeals court found that parts of California’s Motor Vehicle Code dealing with towing and private-property impounds were preempted by federal law, a ruling that raised the eyebrows of city attorneys across the country. Two years later, McGovern represented John Tillison, then-owner of West Coast Towing, in the Ninth Circuit Court.
Tillison got into towing because of the lucrative practice of private-property impounds— snatching up a vehicle for some sort of violation and initiating a de facto lien (hook-up, impound, mileage and storage fees). Most of Tillison’s impounds came through patrol towing (the act of patrolling private parking lots under contracts), which he says accounted for about 75 percent of his profits.
“They loved us,” Tillison says. “We cleaned up their parking lots. Within four weeks, everybody knew what we were up to, and they started adhering to the parking rules. And we kind of acted like secu- rity—it’s a deterrent when those big noisy trucks are coming through regularly, keeping an eye on things.”
Tillison says there was always friction with the police. He believes their feelings were chilly because of the extra calls that came in when irate tenants and customers refused to let West Coast Towing trucks drive away with their vehicles. (The San Diego Police Department did not respond to inquiries about its towing contracts and its relations with towing companies.) Tension mounted until December 21, 2001, when a West Coast Towing driver was ordered by a San Diego police officer to drop a car he’d hoisted (the officer cited California Vehicle Code 22658, which prohibits patrol towing). The employee refused, he was arrested, and Tillison’s tow truck was impounded.
Tillison says he’d heard whispers about the FAAAA and the idea that local police controls were preempted by federal law. He was put in touch with McGovern, and by 2002 his case was in front of U.S. District Court Judge Rudy Brewster, who agreed that local laws were preempted because they aimed to control pricing. Brewster slapped a restraining order on the SDPD, enjoining it from enforcing parts of Section 22658.
Tillison vs. San Diego was a boon for the towing industry and a nightmare for city administrators who found themselves unable to enforce their own laws. University of San Diego law professor Shaun Martin, who followed the Tillison case and similar legislation across the country, believes the towing industry’s fight was based not on legislative intent but a poorly worded FAAAA.
“Yes, laws often have to be interpreted,” Martin says, “but rarely is Congress as boneheaded as it was in passing this particular provision. In deregulating motor carriers [trucks that carry 15 cars from one place to another], Congress never intended the kinds of fights you’re seeing now. From the individual states’ perspective, they’re just trying to take the regulation of towing companies back to what it was in the early 1990s, before the passage of the FAAAA.”
Some industries fight fire with fire. Legislators fight legerdemain with sleightof- hand. When Tillison and McGovern won in the Ninth Circuit Court and put a scare into city managers across the country, state legislatures began fighting patrol towing with FAAAA clause 14501(c), which says states may regulate motor carriers in matters of safety. California’s legislature quickly passed a resolution saying that its ban on patrol towing was for safety, implying the law was in place to avoid confrontations between tow-truck drivers and irate vehicle owners.
San Diego, meanwhile, appealed Brewster’s decision. In November 2005, it was overturned. Tillison subsequently moved to Washington and opened a towing company. Later that year, he lost a similar battle with the city of Seattle. Three years ago, he sold West Coast Towing to Western Towing and retired.
Deputy D.A. Tricia Pummill began the Predatory Towing Task Force in the fall of 2005, when paralegal Eva Casey noticed a pattern in a rash of calls from vehicle owners complaining about towing violations and improprieties. When the D.A.’s office consulted with the SDPD, they realized the system was in limbo. The FAAAA had effectively taken the regulation of towing companies out of the hands of the states, but there was no set of federal towing regulations in place. The industry had fallen into a black hole of supervision. Eventually, Pummill says, less scrupulous elements in the industry began taking advantage of the paucity of oversight.
“During that period [of legal limbo], it became somewhat like the Wild West of towing,” Martin says. “Cities became afraid of regulating the towing industry—which had just won multiple big fights—because they were afraid of getting hit with liability. Once there’s no law in the town—and once the lawman’s scared of you—abuses tend to happen. You saw it in the Wild West, and you saw it in San Diego in the early 2000s. Towing companies were definitely emboldened because of the state of the law.”
Things may have gone beyond the pale, but much of the current maneuvering is only an act in a larger show —part of a back-and-forth power struggle in the continuum of deregulation that started almost 30 years ago. While the D.A. is threatening more felony indictments of tow-truck drivers, McGovern claims there is a strategy currently in place to rechallenge California’s ban on patrol towing and bring the matter back to federal court.
“Nobody should be happy with the situation as it exists now,” Martin says. “You have towing companies abusing federal law in court, and you have cities abusing the loopholes to those laws to pretend that towing regulations are safety- oriented. It’s everyone just winking at the courts and seeing how much they can get away with. It’s reached a sort of equilibrium, but everybody still has a lot of ammunition left in their pockets. The world would be a much better place if the laws were rewritten so nobody had to abuse anything.”