Sheriff v. Gillie - Oral Argument - March 29, 2016

Sheriff v. Gillie

Media for Sheriff v. Gillie

Audio Transcription for Opinion Announcement - May 16, 2016 in Sheriff v. Gillie

Audio Transcription for Oral Argument - March 29, 2016 in Sheriff v. Gillie

John G. Roberts, Jr.:

We'll hear argument first this morning in Case 15-338, Sheriff v. Gillie. Mr. Murphy.

Eric E. Murphy:

Mr. Chief Justice, and may it please the Court: Given resource constraints, Ohio law has always authorized its attorney general to appoint special counsel to undertake the attorney general's duty of representing the State in the courts.

While the attorney general may appoint general deputies today, special counsel remain integral to the office.

For example, the office has only 15 assistant attorneys general dedicated to collecting the billions of dollars of State debts scattered across all 88 Ohio counties.

The office necessarily must rely on special counsel to be the frontline lawyers to collect these debts, yet the Sixth Circuit in this case held both that special counsel are not attorney general officers and may not use attorney general letterhead without risking liability under the Fair Debt Collection Practices Act. That was mistaken for two basic reasons. First, special counsel are State officers under that Act.

And so they fall within the government exemption designed to protect government operations. And, second, special counsel's use of attorney general letterhead accurately conveyed their relationship to the office and furthered the purposes of the Act by putting the credibility of the office on the line and giving it a powerful incentive to monitor special counsel when they collect these debts. So I would like to begin first with the first question presented, the officer question.

And the briefs have gone back and forth on what officer can mean historically and on what it should mean for the Act.

I think -- I think what it should mean for the Act is -- is that the broadest conceivable definition should apply, precisely because this provision is designed to protect government operations.

Ruth Bader Ginsburg:

May I ask you about the -- the general structure of the Act seems to be in-house collectors are okay, but outside collectors, whether for private or for government, fall under the Act. But do I understand your view correctly that that line doesn't exist for the State; that is, whether it's an in-house or an out-house collector, they're equally exempt?

Eric E. Murphy:

I agree that -- I -- yes, you understand our position correctly.

I do not think that the in-house/out-house -- outside dichotomy makes sense for purposes of the government exemption. And here's why: The prototypical -- in the legislative history, the sheriffs and marshals, as the prototypical exempt debt collectors for the government, and they are always outside of the private creditors who are the judgment creditors. So there are a core group of outside collectors -- the in -- outside of the creditor, that is -- who are the prototypical examples --

Elena Kagan:

Well, why wouldn't Congress have expressed that more clearly? I mean, that's a big thing that you're saying, that the State debt collectors really ought to be treated very differently, the outside debt collectors from the private. And, on the face of the statute, the private and the State really are treated in exactly the same way.

There are two provisions.

They read identically to each other.

And surely there were very clear ways of taking out the State outside debt collectors.

You could have just said State debts aren't debts for purposes of this statute or State outside debt collectors aren't debt collectors for purposes of this statute, and yet Congress did none of those things.

Rather, Congress adopted a set of provisions that seem perfectly parallel with respect to State and corporate entities.

Eric E. Murphy:

So I disagree that they're perfectly parallel in these ways. First, I think "officer" means something different in the government context than it does in the private context.

In the private context, as we cite Black's Law Dictionary, the prototypical officer is the president, the CEO, or the treasurer, high-level managers. But not -- that's not true for the government.

The prototypical Officer can be ministerial officers, like police officers --

Elena Kagan:

Well, I understand the argument that you can read the same term two different ways, but Congress did use the exact same terms.

Eric E. Murphy:

But it -- but one is in the private context and one is in the government context.

So I think, by definition, they have to have different meanings. And, number two, the inside/outside, you can see that with the creditor, because when the creditor collects, the creditor has to collect in their own name.

If you look at the creditor exemption, (6)(A) -- a(6)(A), it says they're exempt if they collect in their own name. And, in fact, when they don't collect in their own name, in-house creditors become debt collectors, showing how the in-house/outside was supposed to work for creditors because, when you put your -- Congress has made the choice with respect to creditors, when you put your name on the line, the creditor will likely have a repeat relationship with the relevant debtor.

And so goodwill was enough to exempt all inside creditors.

You don't see this dichotomy --

Sonia Sotomayor:

What other -- what other position does the State call someone an independent contractor but we treat them as an officer nevertheless or an employee of someone? We may do it for tax purposes, but we then look at a series of factors to determine whether they're really employees or not. It's hard for you to argue these are employees; correct?

Eric E. Murphy:


We don't --

Sonia Sotomayor:

They're totally without supervision in their actual debt collection; correct?