Response filed in train suit

By Greg Bird
birdman@tmcvoice.com

Nick Wohlander, attorney for the sheriffs and county attorneys in McCreary and Pulaski counties, filed a motion asking a Federal Judge to dismiss the case or issue a summary judgment last week.
Sheriff Randy Waters and County Attorney Conley Chaney, along with their Pulaski County counterparts, Greg Speck and Martin Hatfield, were named as defendants in a suit filed in U.S. District Court last month by the Association of American Railroads.
The suit seeks a Federal Judge to dismiss citations issued against Norfolk Southern Railroad in both counties, claiming the Kentucky Statutes used in the citations are invalid due to federal interstate commerce laws.
The response comes just a week after the McCreary County and Pulaski County Fiscal Courts voted to share the cost of the private attorney after Kentucky Attorney General Andy Beshear notified both governing bodies he would not represent them in the legal battle. Beshear has since been dropped as a co-defendant in the suit through an agreement with the Association of American Railroads.
A 24-page memorandum supporting the motion details the legal arguments Wallingford is using to get the suit thrown out of court, particularly claiming the Federal Court has no need to hear the case since the outcomes of similar cases in McCreary and Pulaski counties are still pending.
“The Plaintiff’s member, Norfolk Southern Railway Company, apparently dissatisfied with the outcome of the state district court criminal prosecutions in Pulaski and McCreary counties, prosecutions which were the result of (Norfolk Southern’s) blatant disregard for the safety of the citizens of the local communities, has decided to attempt another bite at the apple through this civil action,” Wohlander writes.
“This Court should abstain from reviewing any portion of Plaintiff’s Complaint because there is an ongoing criminal appeal against a member of Plaintiff’s association, Norfolk Southern Railway Company, involving the very issues which Plaintiff has pleaded in this federal court action.”
The response notes Norfolk Southern had entered a conditional guilty plea in Pulaski District Court in April to at lest 17 counts of violating KRS 277.200. NFS had filed a motion to dismiss the case based on the argument that the law is preempted by the Federal commerce laws. That motion was denied by the Court and NFS has filed an appeal.
Similarly, in McCreary County, several citations were issued for the railroad company violating KRS 525.140 and KRS 277.200. The case against the railroad is still ongoing, but NFS has also filed a motion to dismiss using the same reasoning.
Wallingford notes the “Plaintiff has had adequate opportunities to raise any Constitutional challenges that exist” while litigating the cases in the Pulaski and McCreary District Courts.
The filing in U.S District Court argues that the suit filed by the AAR is based on the same arguments and undergoing current litigation, precludes any action by the federal court since the United States Supreme Court previously ruled federal courts should “refrain from interfering with pending state criminal interests when important state issues are involved.”
Wohlander’s response also argues the county attorneys and sheriffs should be granted immunity from prosecution because they were acting within the scope of their duties.
No hearing date on the case has been set.