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Published: Wednesday, 4/27/2005

Truckers fight Michigan's fee for roadway use

BY MICHAEL McGOUGH
BLADE WASHINGTON BUREAU

WASHINGTON - Lawyers for the trucking industry asked the U.S. Supreme Court yesterday to strike down Michigan's policy of requiring that owners of trucks pay $100 a year for the privilege of using the state's highways - even if they are only passing through.

Michigan requires that trucks making runs between two points in Michigan pay an annual "regulatory fee" of $100, even if most of their deliveries are interstate.

Yet even trucks that engage exclusively in interstate deliveries must pay a $100 fee if they have Michigan license plates.

Robert Digges, Jr., representing the American Trucking Associations Inc. told the justices that Michigan's fee system produced the "same impermissible effect on interstate commerce" created by a Pennsylvania law the court struck down in 1987.

In that case, the court faulted Pennsylvania for structuring its tax system to provide a financial advantage for in-state truckers.

Mr. Digges said that, like the Pennsylvania rules, the Michigan intrastate fee discriminates against interstate carriers and violates the Constitution's Commence Clause, which gives Congress - not the states - the authority to regulate interstate commerce.

In a separate attack on the Michigan system, James H. Hanson, a lawyer for Mid-Con Freight Systems Inc., objected to the rule that requires trucks engaged in interstate commerce to pay the $100 fee if they have Michigan license plates.

Mr. Hanson said the state was barred from imposing the $100 fee because of a federal law that says trucks engaged in interstate commerce must register with only one state and cannot be charged more than $10.

That federal system, known as the Single State Registration System, or SSRS, is designed to prevent truckers from paying multiple registration fees to different states.

Michigan Assistant Solicitor General Henry J. Boynton said that it was "pure speculation" to say that Michigan's "regulatory fee," which pays for highway safety and maintenance, had had a chilling effect on interstate trucking because there was no trial on the issue in a lower court.

Mr. Boynton was supported by the Bush administration. Malcolm L. Stewart, assistant to the U.S. solicitor general, told the justices that "this court has repeatedly upheld the authority of states and municipalities to impose flat fees for doing business" within their borders.

The justices seemed divided on whether the Michigan fee discriminated against interstate carriers in violation of the Commerce Clause.

Justice Ruth Bader Ginsburg wondered if the Michigan fee was any more a violation of the Commerce Clause than the multiple law licenses required of attorneys who practice in more than one state.

But other justices seemed troubled by the Michigan scheme.

"What is the point of the SSRS limitation if any state can impose a fee by giving it a different name?" Justice Sandra Day O'Connor asked Mr. Boynton.

When Mr. Boynton suggested it would be difficult to base fees on how many miles trucks ran up on the state's highways, Justice Anthony M. Kennedy replied: "We're talking about mileage! This is something eminently susceptible to apportionment."

The court is expected to rule by the end of June.

Contact Michael McGough at:

mmcgough@nationalpress.com

or 202-662-7025.



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