Amicus Curiae Brief — Sheriff v. Gillie, 136 S. Ct. 614 (2015) (No. 15-338)

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No. 15-338 | _ OFFICE OF THE |

3n the Supreme Court of the United States

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MARK J. SHERIFF, SARAH SHERIFF, WILES BOYLE,

BURKHOLDER & BRINGARDNER Co., LPA, AND MI-

CHAEL DEWINE, ATTORNEY GENERAL OF OHIO,

PETITIONERS

Vv.

PAMELA GILLIE AND HAZEL MEADOWS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF AMICI CURIAE STATE OF

MICHIGAN AND 11 OTHER STATES IN

SUPPORT OF PETITIONERS

Bill Schuette

Michigan Attorney General

Aaron D. Lindstrom

Solicitor General

Counsel of Record

P.O. Box 30212

Lansing, Michigan 48909

LindstromA@michigan.gov

(517) 373-1124

Ann M. Sherman

Assistant Solicitor General

Attorneys for Amicus Curiae

State of Michigan

QUESTION PRESENTED

Does the Dictionary Act’s definition of “officer” un-

ambiguously exclude all private contractors, such that

the special counsel appointed by Ohio’s Attorney Gen-

eral to undertake his duty to collect debts owed to the

State are not state “officers” for purposes of the Fair

Debt Collection Practices Act?

TABLE OF CONTENTS

III. eniemaciuninanibniaisiiis i

IT snciciccditnandiimamibuiointiinnaienmnitemegeties iv

Interest Of Amici Crsriae ...........c0.ccccccsessscesscccseesescceoees 1

Introduction and Summary of Argument.................. 2

| Een ane RE 4

I. Courts should not interpret statutes as

altering the federalism balance unless

Congress expressly states that intent. ................ 4

A. The clear-statement rule protects the

balance between the States and the

federal government. .....................ccceeeeeeeeeeeeees 6

B. The opinion below disregards the clear-

statement rule and limits the States’

authority to deputize contractors to assist

BD GBUD CORED GHTIOD, ceccccccccccccccoceccccccccesscccccccces 7

C. The decision below encroaches on the

authority of State Attorneys General. .......... 9

D. The dissent’s interpretation of “officer” is

not a slippery slope that encompasses all

who contract with the State. ....................... 13

II. Congress has not clearly limited States’

ability to benefit from the officer exception

for private contractors assisting in debt

collection, and States need such broad tools

to effectively manage their debt collection. ....... 17

A. In varying degrees, all States delegate

some of their sovereign debt-collection

power to non-employees. .....................ss0ee0+ 18

ill

B. Many States authorize their Attorney

General to hire private individuals to

assist in debt collection. .....................cc0c0c000- 21

Ee ne one ee ae eee a 24

I 25

Appendix A — Letter to individuals from debt

collector working on behalf of Michigan

Department of Treasury...................cccseeeeeeeeeeees la

lV

TABLE OF AUTHORITIES

Cases

Atascadero State Hosp. v. Scanlon,

I 6

BFP v. Resolution Trust Corp.,

a calieecanienaians 7

Bond v. United States,

I lca 1,5

Bond v. United States,

I i saeminatnaeiel 8

Briscoe v. LaHue,

I cl 14

Commonwealth v. Masden,

175 S.W.2d 1004 (Ky. 19438)............cccccccsssssseseees 16

Dearborn Fire Fighters Union, Local No. 412, I.

A. F. F. v. City of Dearborn,

es Se sinicnicntectennusiniitinninbsanannnniniiiien 10

Filarsky v. Delia,

es a I issih 14, 15

Garcia v. United States,

REESE OLESEN ERNE rE 8

Gomez v. Campbell-Ewald Co.,

768 F.3d 871(9th Cir. 2014) ................ccecceeeeeeeees 15

Gonzales v. Oregon,

II oo sinistredinanedtndnenbabosann halite 6

Gregory v. Ashcroft,

ERE ER cence passim

Heredia v. Green,

SO ee I I I I sins sci sinstereierintinnednnnniion 8

Hodge v. Commonwealth,

116 S.W.3d 463 (Ky. 20038)......................ccccccceeees 10

Imbler v. Pachtman,

ETS S aOR San NST e ER Oe 14

Manion v. State Highway Comm’,

ee Te CI, Bi cccccccccccsscceccccsecsscccses 16

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

|, ETI ener eee TEEN 17

New York v. United States,

TE ee ee 5

Nicoulin v. O’Brien,

TRE ee TS TE CTE 16

Nixon v. Mo. Mun. League,

lalla 7

Port Auth. Trans-Hudson Corp. v. Feeney,

is iit crthitsiisctiniaisniinpinineniiiteits 17

Rapanos v. United States,

DO i edlisicliaalial 6

Rice v. Santa Fe Elevator Corp..,

aii iat 9

Solid Waste Agency of N. Cook, County v. U.S.

Army Corps of Eng’rs,

cl 7

State of Oklahoma ex rel The Pollution Control

Coordinating Bd v. Kerr-McGee Corp,

Re cae I, BIE cecccccccccccccsescssccccesesesocs 12

State v. Lead Indus., Ass’n,

FS 8 EE Sena 12

United States v. Bass,

ee ST circencientacinninmiinnsmnnennenemuanstnie 7

West Virginia Div. of Envtl. Protection v.

Kingwood Coal Co.,

200 W. Va. 734 (W. Va. S. Ct. App. 1997) ......... 10

Will v. Michigan Dep't of State Police,

adie ie enciniidnicestbiiiitininnkaliie 7

Statutes

ES SUR eae ee, 2, 13, 16

Oe, Be I rctstacdasetelactscticiatesiniintieniesies 3

SERA EE ones eee See aRCE 14, 15

42 R.I. GEN. LAWS ANN. § 42-9-11 .................eceeee ee eee 13

i vccceviciiintitiitisscttitiisiaticaitsaattiia 12

ALASKA STAT. ANN. § 43.10.010(b)....................0eeeeees 21

ALASKA STAT. ANN. § 44.17.010 ...............0:ccceeeeeeeeeees 12

ARIZ. REV STAT. ANN. § 41-191(E....................ceceeeees 21

ARIZ. REV. STAT. ANN. § 41 192(A)(6)....................... 12

ARK. CODE ANN. § 25-16-702(b)(2)...............ccecceeeeeees 12

ARK. CODE ANN. § 25-16-708a ................0ssscseseeeeeeeees 21

ea Oe Re I iicencsinininiiiiscesiiinnnnniicnbbii 12

CAL. REV. & TAX CODE § 10878..................scccccsserseeees 20

CAL. REV. & TAX CODE § 19280.......................0000000008 20

CAL. REv. & TAX CODE §§19376—19378..................... 20

COLO. REV. STAT. 24-30-202.4..........cccccccsssssssssssscseees 19

CONN. GEN. STAT. ANN. § 3-125 ...............ccccceceeeseeeeee 12

CONN. GEN. STAT. ANN. § 4a-12(b).............:::ccceeeeeeees 21

DEL. CODE ANN. TIT. 6, § 2432A...........ccccccceeseeeseeseees 21

DaeL. CODR. ANN. TIT. BO, § BGOT .......ccccccccscccesscsccceees 12

GA. CODE ANN. § 10-1-382(a) ..............cccccccccccscescoceees 21

Os I, Or iia sccicspnsenesugmaniinneauend 12

HAW. REV. STAT. ANN. § 28-8(b)................0ccc0eeeeeeeeees 12

IDAHO CODE ANN. § 67-1406(38) ................ccceeeeceeeeeeees 12

I II, 0 I IR icceicencniscnssiosinionsinineasinonaniineia 12

KAN. STAT. ANN. § 20-379(c)(5) .........sccccecesssseeceessecees 21

LA. STAT. ANN. § 47:1676(C)(8).........ccccccccssccsesseeeesees 19

oh, GERI. BOTIE, © GIES was ccecctcnsecccesccnscosecenesvecnsesoes 12

MD. CODE ANN. § 6-105(b)(1), (c)(1)..........cccceeeeeeeeeees 12

ME. REV. STAT. ANN. TIT. 5, § 191(3)(B).................... 12

BE, GUE, GeIUIE Se Bi ccccteiscnnecccovscneneccssmscosoensnons 12

Rs RE ne 11, 12

MICH. ComMP. LAWS § 333.16237(2) .....................11, 12

MICH. COMP. LAWS § 400.291(2) ..............0cccceeceeeeeeeee 11

MICH. COMP. LAWS § 49.160..............ccccccssssssssececeseees 11

MICH. COMP. LAWS § 500.214(4) .0..........cceeceeceeeeeeeees 11

MICH. COMP. LAWS § 691.1408.......0.......cccccce cece e eee eee 11

MICH. COMP. LAWS § 691.1413 .......... 0c. ee eee ee 16

MIss. CODE ANN. § 7-5-7(2)(a) ..............cceeeeeeeeeees 12, 21

N.J. STAT. ANN. § 52:17A-13......ccccccsceccscssecsesescecesceee 12

es A OD icriescsecccninicainertnisanentennns 21

8 | aT Re 12

NEV. REV. STAT. ANN. § 41.03435 .................cccceeeeeees 12

OHIO REV. CODE ANN. § 109.07..............:ccecceeeeeeeseeess 12

vill

OHIO REV. CODE ANN. § 131.02....................ccceeeeeeeeee 21

I ac eaeilialenniluinll 20

IT Sit sersicstciniciesiiniasigniidiaendedqunctienniencseinns 20

OKLA. STAT. ANN. TIT. 74, § 20i(A)(3)...............0000000- 13

OR. REV. STAT. ANN. § 180.235(1) .................ccceceeeeees 13

PA. STAT. AND CONS. STAT. ANN. § 732-204(c) .......... 21

TENN. CODE ANN. § 8-6-1066 ................ccccccceseessseeeeeees 13

TEX. Bus. & COMMERCE CODE ANN. § 15.40(b)......... 13

TEX. GOVT. CODE ANN. § 2107.003....................cceeeee 21

I, I sc eticesidemeimiocanenel 13

UTAH CODE ANN. 63A-3-502(4)(d) ..............0cccceeeeeeees 19

ny es Ob i icicttcenscnnisicientdencniptsncnniies 13

eX K&S Ee eereeamnenrerees 13

W VA. CODE ANN. § 5-3-2a(d) ..............ccccceeeeeeeeeeeeeees 13

WASH. REV. CODE ANN. § 43.10.065.....................200e 13

Wyo. STAT. ANN. § 9-1-606(b) ....................ccceececeeeeees 13

Other Authorities

NE Eee erecta 19

3 J. Story, Commentaries on the Constitution of

the United States 752 (1833) ...................cccccceeeees 4

57 AM JUR 2d Tort Liability § 38 (2015) ...............-.. 16

7 AM JUR 2D Attorney General § 7 (2015)................ 10

7A C.J.S. Attorney General § 25 (2015)................004 10

Government Debt Collection: Survey Report and

Recommendations, 1 (2010) ...............ece0eee0ee 18, 23

L. Tribe, American Constitutional Law § 6-26, at

I ceeintiiiie g

Leah Godesky, State Attorneys General and

Contingency Fee Arrangements: An Affront to

the Neutrality Doctrine?, 42 Colum. J. L. &

By Glee Si IIE cncccscccsnesnssenisecsenscsnces 12

Outline of the Michigan Tax System, Report No.

EET Re Oe at eee ae oT ea ee Tee 22

Restatement (Second) of Agency § 2 cmt. b (1958).. 16

Sarah Arnett, State Fiscal Condition: Ranking

the 50 States 3 (Mercatus Center at George

Mason University, Working Paper No. 14-02,

SES EERIE Ree vena ERR ae 22

The Federalist No. 28, at 179 (A. Hamilton) (J.

icity 4

The Federalist No. 45, at 292—93 (James

Madison) (Clinton Rossiter ed. 1961) .................. 5

The Federalist No. 51, at 351 (J. Madison) (J.

I ao sestantuniie 4

William C. Haflett, Jr., Tice v. Department of

Transportation: A Declining Role for the

Attorney General?, 63 N.C. L. Rev. 1051

SESE A PT ne ar eo SS a oe ER 9

INTEREST OF AMICI CURIAE

The Constitution itself establishes our dual sys-

tem of government, which divides power “between the

Nationa] Government and the States.” Bond v. United

States, 131 S. Ct. 2355, 2364 (2011). This federalism

is important because dividing governmental power

“secures the freedom of the individual” as part of our

constitutional system of “checks and balances.” Id. at

2364-65. Federal intrusion into state sovereignty is

thus of paramount concern for States and State Attor-

neys General.

Part of the liberty protected by federalism is the

freedom of citizens to define “the structure of [State]

government [ ] and the character of those who exercise

government authority.” Gregory v. Ashcroft, 501 U.S.

452, 460 (1991). This sovereignty allows States to

carry out their core functions with pragmatism and

flexibility. The Sixth Circuit’s overly narrow interpre-

tation of the Dictionary Act’s definition of “officer” vi-

olates an important canon designed to preserve feder-

alism: the clear-statement rule. This canon protects

against the erosion of state authority—and the con-

comitant dilution of each individual’s ability to influ-

ence public policy—without a clear congressional di-

rective. Because the Act’s definition of “officer” does

not plainly exclude private contractors who are carry-

ing out state sovereign duties under the authority of

state statute, the decision below encroaches on States’

flexibility to determine how to best govern themselves

and thus warrants review.

INTRODUCTION AND SUMMARY OF

ARGUMENT

When this Court was deciding Gregory, thirteen

states signed on to an amicus that supported the

clear-statement rule. Brief for Colorado & Florida et

al. as Amici Curiae Supporting Respondent, Gregory

v. Ashcroft, 501 U.S. 452 (1991) (No. 90-50). Those

States were concerned about maintaining a proper

federal-state balance. This Court agreed, justifying

the rule on that very basis. Gregory, 501 U.S. at 460.

That same /)rinciple is at stake here. The Fair

Debt Collection Practices Act (FDCPA) relies on the

Dictionary Act definition of “officer,” defined as “any

person authorized by law to perform the duties of the

office.” 1 U.S.C. § 1 (2012). This definition encom-

passes the special counsel that Ohio’s Attorney Gen-

eral appoints to assist in debt collection. These special

counsel are not mere independent contractors. By vir-

tue of the Ohio statute that authorizes their hire and

the duties they perform, they stand in the shoes of the

Ohio Attorney General for debt-collection purposes.

The opinion below, which nonetheless holds that they

are not officers who wield any sovereign power, Pet.

App. 43a, violates the clear-statement rule and limits

States’ authority to decide whether and on what terms

they hire private contractors to assist them in their

sovereign duties.

Private contractors serve States in various capac-

ities. To be sure, not every private contractor is an of-

ficer. Indeed, not every private contractor is “author-

ized by law,” and as Judge Sutton noted in dissent,

“sovereign power remains a precondition of officer sta-

tus.” Pet. App. 62a. So, irrespective of the importance

of their work, no one presumes building-maintenance

or road-construction workers are standing in the

shoes of a state official. But where the “authorization”

and “duty” conditions are met, States that exercise

their sovereign power through independent contrac-

tors are entitled to benefit from those contractors hav-

ing state-officer status. This is true whether in debt

collection or in other areas where federal statutes use

the Dictionary Act definition of “officer.”

The rule embodied in the opinion below also un-

dermines the authority of State Attorneys General.

They must have the flexibility to delegate their pow-

ers to outside counsel and duly designated deputies.

And they are entitled to applicable exemptions such

as the state-officer exemption under the FDCPA.

The FDCPA’s state-officer exemption serves as a

critical tool for States as they respond to increasingly

complex tax structures and fiscal challenges. A num-

ber of States use private contractors to collect debts,

and a number of State Attorneys General appoint spe-

cial counsel for this purpose. Because Congress has

not spoken clearly in the FDCPA to cover States, they

are entitled to structure their debt-collection activities

so their private contractors qualify as “officers.”

States have the sovereign right to determine if and

how they will collect the debts owed to them. Pet. App.

55a.

This Court should reverse the Sixth Circuit and

hold that the Fair Debt Collection Practices Act does

not apply to private contractors who are authorized by

law to perform state sovereign functions.

ARGUMENT

I. Courts should not interpret statutes as

altering the federalism balance unless

Congress expressly states that intent.

Federalism arises from the Constitution itself. “As

every schoolchild learns, our Constitution establishes

a system of dual sovereignty between the States and

the Federal Government.” Gregory, 501 U.S. at 457.

The Constitution balances the power between these

two sovereignties, reserving to the States or to the

people all powers the Federal Compact has not dele-

gated to the United States. U.S. Const. amend. X. Jus-

tice Story described the Tenth Amendment as “a mere

affirmation of what, upon any just reasoning, is a nec-

essary rule of interpreting the constitution. Being an

instrument of limited and enumerated powers, it fol-

lows irresistibly, that what is not conferred, is with-

held, and belongs to the state authorities.” 3 J. Story,

Commentaries on the Constitution of the United

States 752 (1833).

Federalism exists to protect and promote individ-

ual liberty. The authors of The Federalist recognized

this, specifically noting the value of federalism in

curbing abuses of governmental power. Alexander

Hamilton wrote that while the general government

would check the “usurpations of the state govern-

ments, the state governments “will have the same dis-

position towards the general government.” The Feder-

alist No. 28, at 179 (A. Hamilton) (J. Cooke ed. 1961).

James Madison likewise explained, “The different

governments will control each other, at the same time

that each will be controlled by itself.” The Federalist

No. 51, at 351 (J. Madison) (J. Cooke ed. 1961). States,

Madison emphasized, retain powers that are “numer-

ous and indefinite.” Gregory, 501 U.S. at 457-58 (quot-

ing The Federalist No. 45, at 292—93 (James Madison)

(Clinton Rossiter ed. 1961)).

This Court too has repeatedly explained that

“[flederalism secures the freedom of the individual.”

Bond, 131 S. Ct. at 2364. Indeed, “[s]tate sovereignty

is not just an end in itself: ‘Rather, federalism secures

to citizens the liberties that derive from the diffusion

of sovereign power.’” Id. (quoting New York v. United

States, 505 U.S. 144, 181 (1992) (some internal quota-

tions omitted)). Federalism advances liberty in a num-

ber of ways:

e it promotes “decentralized government that

will be more sensitive to the diverse needs of

a heterogeneous society”;

e it “increases opportunities for citizen involve-

ment in democratic processes’;

e it “allows for more innovation and experimen-

tation in government’;

e it “makes government more responsive by put-

ting the States in competition for a mobile cit-

izenry’; and

e it provides “a check on abuses of government

power.” Gregory, 501 U.S. at 458.

Because of the importance of federalism to our

constitutional structure, this Court applies a clear-

statement rule when interpreting statutes: “[I}f Con-

gress intends to alter the ‘usual constitutional balance

between the States and the Federal Government, it

must make its intention unmistakably clear in the

language of the statute.’ ” Gregory, 501 U.S. at 460—

61 (quoting Atascadero State Hosp. v. Scanlon, 473

U.S. 234, 243 (1985)). The burden is on Congress to

use unambiguous and targeted statutory language.

Courts may not consider less clear indicia of legisla-

tive intent or place their own overlay onto the statu-

tory language.

A. The clear-statement rule protects the

balance between the States and the

federal government.

The clear-statement rule safeguards the im-

portant value discussed above: preserving the federal-

state balance. Indeed, this Court explained that “con-

gressional interference” in state internal matters of

great importance “would upset the usual constitu-

tional balance of federal and state powers.” Gregory,

501 U.S. at 460.

In numerous cases both before and after Gregory,

this Court has applied the clear-statement rule to pro-

tect States from unwarranted federal encroachment

into traditional areas of state authority. See, e.g., Ra-

panos v. United States, 547 U.S. 715, 738 (2006) (plu-

rality opinion) (“We ordinarily expect a ‘clear and

manifest’ statement from Congress to authorize an

unprecedented intrusion into traditional state author-

ity”); Gonzales v. Oregon, 546 U.S. 243, 274 (2006)

(“[T]he background principles of our federal system [ ]

belie the notion that Congress would use such an ob-

scure grant of authority to regulate areas traditionally

supervised by the States’ police power.”); Solid Waste

Agency of N. Cook, Cty. v. U.S. Army Corps of Eng’rs,

531 U.S. 159, 173 (2001) (“This concern is heightened

where the administrative interpretation alters the

federal-state framework by permitting federal en-

croachment upon a traditional state power.”); BFP v.

Resolution Trust Corp., 511 U.S. 531, 544 (1994)

(“[W]hen the Federal Government takes over local

radiations in the vast network of our national eco-

nomic enterprise and thereby radically readjusts the

balance of state and national authority, those charged

with the duty of legislating [must be] reasonably ex-

plicit.”) (internal citations omitted); Will v. Michigan

Dep’t of State Police, 491 U.S. 58, 65 (1989) (quoting

United States v. Bass, 404 U.S. 336, 349 (1971)) (“In

traditionally sensitive areas, such as legislation af-

fecting the federal balance, the requirement of a clear

statement assures that the legislature has in fact

faced, and intended to bring into issue, the critical

matters involved in the judicial decision.”).

B. The opinion below disregards the clear-

statement rule and limits the States’

authority to deputize contractors to

assist in core state duties.

“(W]ho can deny that plaintiffs’ interpretation of

‘officer’ ‘trench[es] on the States’ arrangements for

conducting their own governments” ” Pet. App. 58a

(Sutton, J., dissenting) (quoting Nixon v. Mo. Mun.

League, 541 U.S. 125, 140 (2004)). Yet, any such fed-

eral legislation should be “treated with great skepti-

cism” and, in the absence of an “ ‘unmistakably clear’ ”

statement otherwise, should be “read in a way that

preserves a State’s chosen disposition of its own

power.” Nixon, 541 U.S. at 1410.

Yet the Sixth Circuit majority ignored the States’

important authority to structure themselves when it

concluded that appointed special counsel cannot be of-

ficers of the State within the meaning of the FDCPA.

Pet. App. 29a. This conclusion is not only erroneous

but also conflicts with the approach of the only other

circuit to address the issue, the Third Circuit, which

held that the Philadelphia Municipal Court’s ap-

pointed Landlord and Tenant Officer was an “officer.”

Heredia v. Green, 667 F.2d 392, 396 (3d Cir. 1981).

Both Heredia and the dissent here recognized that ad-

herence to the clear-statement rule protects funda-

mental federalism principles.

Further, the decision below misses the point of the

clear-statement rule—that it applies when ambiguity

exists and resolves ambiguity in favor of preserving

state sovereignty. If the Dictionary Act’s definition of

“officer” is ambiguous in a particular context—and

here, Plaintiffs conceded that the term was “open to

multiple{] yet reasonable interpretations,” Pet. App.

60a—then the exemption for state officers applies pre-

cisely because Congress has not unambiguously regu-

lated core state functions. Pet. App. 58a (Sutton, J.,

dissenting). As this Court has articulated, the clear-

statement rule “resolves ambiguities in federal stat-

utes” based on basic principles of federalism. Bond,

134 S. Ct. at 2090. Because the Sixth Circuit failed to

follow the rule, it fell into the very peril this Court has

identified: “ ‘to give the state-displacing weight of fed-

eral law to mere congressional ambiguity would evade

the very procedure for lawmaking on which Garcia [v.

United States, 105 S. Ct. 479 (1984)] relied to protect

states’ interests.’” Gregory, 501 U.S. at 464 (quoting

L. Tribe, American Constitutional Law § 6-25, at 480

(2d ed. 1988)); Wisconsin Pub. Intervenor v. Mortier,

501 U.S. 597, 607 (1991) (quoting Rice v. Santa Fe El-

evator Corp., 331 U.S. 218, 230 (1947) (“‘ Mere silence

cannot suffice to establish a clear and manifest pur-

pose to pre-empt local authority. ’”)).

C. The decision below encroaches on the

authority of State Attorneys General.

There is another reason why the opinion below

matters to States other than Ohio. State Attorneys

General must have the flexibility to delegate their

powers to outside counsel and duly designated depu-

ties—and accordingly, to balance any inherent liabil-

ity with the benefits of any applicable exemptions

such as the FDCPA’s state-officer exemption.

The office of attorney general dates back to thir-

teenth and fourteenth century England when the at-

tornatus regis served as the sovereign’s primary legal

representative and wielded considerable power that

was subject to limitation only by the King. That office

was carried over to colonial America as the office of

attorney general. William C. Haflett, Jr., Tice v. De-

partment of Transportation: A Declining Role for the

Attorney General?, 63 N.C. L. Rev. 1051, 1053, (1985).

As a state judge reminded, “[O]ne of the principal rea-

sons that our founders established an Attorney Gen-

eral’s office was to assure that important legal issues

that will affect all state agencies had an advocate who

is able to bring the expertise of government-wide rep-

resentation before this Court, when we consider mat-

ters of overall importance to state government.” West

Virginia Div. of Envtl. Protection v. Kingwood Coal

10

Co., 490 S.E. 2d 845 n.1 (W. Va. S. Ct. App. 1997)

(Starcher, J., dissenting).

Whether by constitution or by statute, all fifty

states have an office of attorney general, and most rec-

ognize the Attorney General’s considerable common-

law powers. 7 AMJUR 2D Attorney General § 7 (2015).

In almost every state, the Attorney General is the

chief law officer. See, e.g., Hodge v. Commonwealth,

116 S.W.3d 463, 474 (Ky. 2003) (noting that “the At-

torney General is the chief law officer and chief pros-

ecutor of the Commonwealth”).

Because of heavy workloads and responsibilities

spanning a host of issues, State Attorneys General

must often delegate their authority to outside counsel.

7A C.J.S. Attorney General § 25 (2015) (“[A] state stat-

ute may allow the attorney general to employ special

counsel on a fee or salary basis,” subject to certain con-

straints on supervision and control.). Ohio might want

to appoint special counsel to represent the state in

proceedings in which the state is a party, to act as an

attorney at law in an antitrust case, or to act as a pros-

ecuting attorney in organized crime cases. Pet. App.

59a (Sutton, J., dissenting) (citing statutes).

In the same way, Michigan law repeatedly author-

izes its Attorney General to delegate his authority to

special counsel and to other persons. Dearborn Fire

Fighters Union, Local No. 412, L.A.FF. v. City of Dear-

born, 231 N.W.2d 226, 261 (Mich. 1975) (recognizing

that the Attorney General may “appoint a learned

lawyer as a Special Assistant Attorney General” and

that “[i]Jt would be difficult to say that that Special As-

sistant Attorney General was not a public officer”).

11

Numerous state statutes recognize this. To give just a

few examples, the Michigan Attorney General may:

(1)

(2)

(3)

(4)

(5)

(6)

“employ counsel to be associated with him”

“who, with him, shall fully represent the

state” in actions to protect or assert the right

or title of the state to property, Mich. Comp.

Laws § 21.162;

appoint a special prosecuting attorney to per-

form the duties of a prosecuting attorney who

is disqualified or otherwise unable to serve,

Mich. Comp. Laws § 49.160;

designate “other person([s]” to conduct investi-

gations, Mich. Comp. Laws § 400.291(2);

appoint a “special assistant attorney general”

to represent the insurance commissioner,

Mich. Comp. Laws § 500.214(4);

“assign an independent special assistant at-

torney general who is under contract to the de-

partment of attorney general and is not a

member of the state classified civil service” to

advise and assist disciplinary subcommittees

under the Public Health Code, Mich. Comp.

Laws § 333.16237(2); and

appoint special counsel to represent an em-

ployee of the Friend of the Court, Mich. Comp.

Laws § 691.1408; see also 1985-1986 Mich.

Op. Att’y Gen. 72.

12

In many States, special counsel bring suits on be-

half of the citizens of their States that would other-

wise be impossible due to a lack of personnel re-

sources, expertise, and money. Leah Godesky, State

Attorneys General and Contingency Fee Arrange-

ments: An Affront to the Neutrality Doctrine?, 42

Colum. J. L. & Soc. Probs. 587, 588 (2009). As an ex-

ample, Rhode Island’s former Attorney General used

private attorneys to represent that State in a fight

against lead paint manufacturers. Jd. at 589 (discuss-

ing State v. Lead Indus. Ass’n Inc., 951 A.2d 428 (R.I.

2008)). As another, Oklahoma’s former Attorney Gen-

eral similarly retained three plaintiffs’ attorney firms

to take on poultry companies he believed had polluted

the State’s waterways with chicken manure. Jd. (dis-

cussing State of Oklahoma ex rel The Pollution Con-

trol Coordinating Bd v. Kerr-McGee Corp, 619 P.2d

858 (Okla. 1980)).

Ohio, Michigan, Oklahoma, and Rhode Island are

not anomalies. At least 31 State Attorneys General

have statutory authority to delegate their duties to

special counsel. ALA. CODE § 36-26-42; ALASKA STAT.

ANN. § 44.17.010; ARIZ. REV. STAT. ANN. § 41-

192(A)(6); ARK. CODE ANN. § 25-16-702(b)(2); CAL.

Gov’T CODE § 12520; CONN. GEN. STAT. ANN. § 3-125;

DEL. CODE. ANN. tit. 29, § 2507; GA. CODE ANN. § 45-

15-30; HAW. REV. STAT. ANN. § 28-8(b); IDAHO CODE

ANN. § 67-1406(3); IOWA CODE ANN. § 13.7(1); LA.

STAT. ANN. § 49:251.2; ME. REV. STAT. ANN. TIT. 5,

§ 191(3)(B); MD. CODE ANN. § 6-105(b)(1), (c)(1); MICH.

ComP. LAWS §§ 14.29, 21.162, 333.16237(2); Miss.

CODE ANN. § 7-5-7(2)(a); NEV. REv. STAT. ANN.

§ 41.03435; N.J. STAT. ANN. § 52:17A-13; N.Y. EXEc.

LAW § 62(1); OHIO REV. CODE ANN. § 109.07; OKLA.

13

STAT. ANN. TIT. 74, § 20i(A)(3); OR. REV. STAT. ANN.

§ 180.235(1); 42 R.I. GEN. LAWS ANN. § 42-9-11, TENN.

CODE ANN. § 8-6-106; TEX. BUS. & COMMERCE CODE

ANN. § 15.40(b); UTAH CODE ANN. § 67-5-5; VT. STAT.

ANN. TIT. 3, § 153(c); VA. CODE ANN. § 2.2-507(C);

WASH. REV. CODE ANN. § 43.10.065; W VA. CODE ANN.

§ 5-3-2a(d); Wyo. STAT. ANN. § 9-1-606(b). The wide-

spread authority of Attorneys General to delegate

their authority, and the benefits of state-officer sta-

tus—whether in debt collection or in other areas—

should not be diminished without a clear statement to

the contrary.

D. The dissent’s interpretation of “officer”

is not a slippery slope that encompasses

all who contract with the State.

The opinion below broadly proclaims that “[i]nde-

pendent contractors are not officers under the

plain language of the Dictionary Act.” Pet. App. 43a.

Of course, not all private contractors are state officers,

nor would States want all of them to be. But the opin-

ion’s statement is incorrect because it leaves no room

for the necessary analysis: whether the private con-

tractor is “authorized by law” and is performing “the

duties of the office.” 1 U.S.C. § 1.

Compare two contractors: the State hires a

groundskeeper to maintain the lawn by its capitol and

also hires a special assistant attorney general to assist

in major tobacco litigation. Both perform important

work and add value to the State. But the former is not

authorized by statute, his job tasks are not core state

functions, and he is not subject to the same level of

control and oversight as the Attorney General’s dele-

gate in court.

14

In the case of Ohio’s special counsel, this control

was exhibited in the use of Attorney General letter-

head and the adoption of Attorney General protocols.

Ohio special counsel are, contrary to the majority

opinion, distinguishable “from the myriad of inde-

pendent contractors who enter into for-profit agree-

ments with government agencies or actors to help ful-

fill the duties of some government office.” Pet App.

29a.

In analogous contexts, this Court has not treated

all persons fulfilling some state task as officers of the

State; instead, it has analyzed the nature of the rela-

tionship with the government. Consider questions of

immunity. This Court has said that types of immunity

(i.e., absolute versus qualified) “rest[] on functional

categories, not on the status of the defendant.” Briscoe

v. LaHue, 460 U.S. 325, 342 (1983). And this Court

has explained that private citizens may be entitled to

immunity for actions taken while performing govern-

ment operations. For example, grand jurors, though

private citizens, have long enjoyed absolute immun-

ity. Imbler v. Pachtman, 424 U.S. 409, 423 n.20

(1976).

Similarly, just three years ago this Court granted

qualified immunity to a private attorney temporarily

retained by a city to carry out its work. Filarsky v. De-

lia, 132 S. Ct. 1657, 1665 (2012). In determining that

this non-city employee was entitled to protection from

suit under § 1983, the Court noted that at the time

Congress enacted § 1983 the common law did not dis-

tinguish between government employees and private

actors serving the government. Jd. at 1661-1665. In-

deed, “[e]xamples of individuals receiving immunity

15

for actions taken while engaged in public service on a

temporary or occasional basis are as varied as the

reach of the government itself’—from store owners

acting as federal postmasters and private lawyers con-

ducting criminal prosecutions on behalf of the State to

individuals acting as part-time judges, justices of the

peace, sheriffs, and constables. Jd. at 1663-1665. In

concluding that “immunity under § 1983 should not

vary depending on whether an individual working for

the government does so as a full-time employee, or on

some other basis,” this Court explained that such im-

munity “‘protect[s] government’s ability to perform its

traditional functions,’ ” “ensur[es] that talented can-

didates are not deterred from public service,” and

avoids “significant line-drawing problems” that tem-

porary relationships with the government might oth-

erwise raise. Id. at 1665-1666 (citations omitted).

Of course, these immunities apply only to private

citizens who are performing a government function

and who meet the relevant legal tests. See Filarsky,

132 S. Ct. at 1669 (Sotomayor, J., concurring) (“[I]t

does not follow that every private individual who

works for the government in some capacity neces-

sarily may claim qualified immunity Such indi-

viduals must satisfy our usual test for conferring im-

munity.”). Lower courts applying Filarsky, for exam-

ple, have certainly recognized this distinction. See,

e.g., Gomez v. Campbell-Ewald Co., 768 F.3d 871,

881(9th Cir. 2014) (refusing to extend Filarsky outside

the personal-tort-liability context); In re KBR, Inc.,

Burn Pit Litigation, 744 F.3d 326, 344 (4th Cir. 2014)

(refusing to extend Filarsky to sovereign-immunity is-

sues or analysis of the Federal Tort Claims Act’s dis-

cretionary-function exception). So too do only certain

16

private contractors function in a capacity that is “au-

thorized by law” to fulfill “the duties of office.” 1 U.S.C.

§ 1.

Relatedly, governmental tort immunity applies to

only some contractors. Nuanced inquiries into the spe-

cific duties and authority of contractors are important

to the applicability of governmental tort immunity,

where agencies retain immunity for government or

public acts but not for acts that are merely proprietary

or private in nature. 57 AMJUR 2D Tort Liability § 38

(2015). For example, Michigan cannot be held liable in

tort for operation of a state ferry as part of the State’s

highway system because it is a governmental func-

tion. Manion v. State Highway Comm’r., 5 N.W. 2d

527, 529 (Mich. 1942); see also Mich. Comp. Laws

§ 691.1413. Similarly, Kentucky courts have recog-

nized that the State’s protection and conservation of

game is a governmental! function and the State is “act-

ing in its sovereign capacity for the common benefit of

all of its people.” Commonwealth v. Masden, 175

S.W.2d 1004, 1006 (Ky. 1943) (citing Nicoulin v.

O'Brien. 189 S.W. 724 (1916) (other citations omit-

ted)).

Even applying common-law agency principles re-

quires fact-intensive inquiries to determine whether a

private contractor is functioning as an agent in the

first place. See Restatement (Second) of Agency § 2

cmt. b (1958) (an “independent contractor” may be “an

agent under appropriate circumstances.”) (emphasis

added). Likewise, this Court’s Eleventh Amendment

arm-of-the-state doctrine also employs a fact-inten-

sive, multi-factored balancing approach in determin-

ing when to extend the State’s sovereign immunity to

17

other entities. See, e.g., Mt. Healthy City Sch. Dist.

Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977) (ex-

plaining that arm-of-the-state inquiry depends, in

part, “upon the nature of the entity created by state

law” and determining that the local school board was

more like a county or city than an arm of the State

because it was subject to some guidance from the

State Board of Education and received a significant

amount of money from the State); Port Auth. Trans-

Hudson Corp. v. Feeney, 110 S. Ct. 1868, 1876-77

(1990) (Brennan, J., concurring) (“[T]he entity [must

be] “so intricately intertwined with” [and] so

closely tied to the state as to be the direct means by

which the state acts.”).

In sum, the distinctions among independent con-

tractors matter under the Dictionary Act just as they

do under other relevant legal tests. Under the Act, it

is important under what authority they were hired

and under what authority and protocols they perform

their work. And it matters what work they do. The

Sixth Circuit closed the door on the “officer” inquiry

without adequately considering these meaningful dis-

tinctions.

Il. Congress has not clearly limited States’

ability to benefit from the officer exception

for private contractors assisting in debt

collection, and States need such broad tools

to effectively manage their debt collection.

States have the sovereign authority to collect the

debts owed them. As the dissent recounts, “From the

founding, the States have taken debts—whether owed

by them or to them—seriously.” Pet. App. 55a (Sutton,

J., dissenting). The States’ interest in debt collection

18

is no mere “policy concern,” as the majority opinion

characterized it. Pet. App. 28a—39a. Rather, it is an

important piece of the States’ sovereign right to gov-

ern themselves in the way that best solves problems

and meets the needs of its citizens. State fiscal con-

cerns should not be artificially separated from collect-

ing revenue. And debt collection is an important factor

in revenue-building.

A. In varying degrees, all States delegate

some of their sovereign debt-collection

power to non-employees.

Recently, the National Association of State Audi-

tors, Comptrollers, and Treasurers, in conjunction

with CGI, a leading information technology and busi-

ness process services firm, conducted a survey in the

hopes of helping States seek effective ways to raise

needed revenue. Government Debt Collection: Survey

Report and Recommendations 1 (2010), available at

http://www.cgi.com/sites/default/files/pdf/CGI-NA-

SACT-report.pdf. The survey showed that, regardless

of the type of system they employ, every one of the 50

states surveyed said they were using private collec-

tion agencies to some degree and “at some point in the

process.” Jd. at 3—5.

Michigan for example, relies on private collection

agencies to collect debts owed to state agencies. The

State centralizes its debt collection through an Office

of Collections in its Department of Treasury. This cen-

tralized Office collects all overdue assessed taxes ad-

ministered by the Michigan Department of Treasury

and primary delinquent, non-tax debts owed to almost

all state agencies. In total, over 200 different state

agencies and local units of government have referred

19

debts to the Office of Collections, and the Office col-

lects over 325 debt types. Even though the Office em-

ploys a staff of approximately 85, state law still au-

thorizes the Department of Treasury to “contract with

private collection agencies and law firms to collect

taxes and other accounts due this state.” 2014 Mich.

Pub. Act 252, Part 2A, anticipated appropriations for

fiscal year 2015-2016, Sec. 20-903(1), Department of

Treasury, “Operations.” Notably, the private company

Michigan uses, GC Services Limited Partnership, ex-

plains that when it sends letters to individuals whose

accounts have been referred for collection, it notifies

them that it is operating “on behalf of the State of

Michigan” and that its employees at the Michigan Ac-

counts Receivable Collection System “are representa-

tives of the Michigan Department of Treasury author-

ized to collect delinquent taxes owed to the State.”

(Appendix A, sample letter).

Like Michigan, other States also hire contractors

to aid in their debt-collection efforts. Louisiana au-

thorizes its centralized Office of Debt Recovery to

“contract with a third-party collection contractor

for the collection of delinquent debt on behalf of the

office.” LA. STAT. ANN. § 47:1676(C)(3). Colorado,

which also has a centralized system, COLO. REV. STAT.

24-30-202.4, requires the state controller to “legally

assign all debts that are not claims in process of col-

lection to private counsel or private collection agen-

cies” within 180 days. Id. at § 24-30-202.4(2). Simi-

larly, Utah’s centralized Office of Debt Collection is

authorized to “contract with private or state agencies

to collect past-due accounts.” UTAH CODE ANN. 63A-3-

502(4)(d).

20

While California has a quasi-centralized debt-col-

lection system, it too relies on private contractors to

fulfill its debt-collection duties. The California Fran-

chise Tax Board is the state agency responsible for col-

lection of state personal income tax and bank and cor-

poration tax, and is authorized to hire private contrac-

tors for debt-collection purposes. CAL. REV. & TAX

CoDE §§19376—-19378. Although private contractors

may not hold themselves out to be Franchise Tax

Board employees, they may, by contract, say they are

collecting on behalf of the Franchise Tax Board. The

Franchise Tax Board is also authorized to collect de-

linquent debts on behalf of state and local courts and

on behalf of the Department of Motor Vehicles, as if

those debts were a tax. CAL. REV. & TAX CODE § 19280,

§ 10878. The California State Controller’s Office re-

ports that personal income taxes, sales and use taxes,

and corporate income taxes make up the State’s Gen-

eral Fund—the State’s main checking account to fund

state agency programs and state funds to local govern-

ment. California State Controller's Office, State

Taxes, available at http://sco.ca.gov/.

States with decentralized systems use private

contractors as well. See, e.g., OKLA. STAT. ANN. TIT. 68,

§ 205.2(b); OKLA. STAT. ANN. TIT. 68, § 255(A). But re-

gardless of how they structure their debt-collection

practices, States, as constitutional sovereigns, should

retain the flexibility to decide for themselves whether

to appoint private contractors to complete the core

task of debt collection.

21

B. Many States authorize their Attorney

General to hire private individuals to

assist in debt collection.

Like Ohio, many States authorize their Attorneys

General to delegate their debt-collection authority.

E.g. ALA. CODE § 40-2-11(4); ALASKA STAT. ANN.

§ 43.10.010(b); ARIZ. REV. STAT. ANN. § 41-191(E);

ARK. CODE ANN. § 25-16-708a; CONN. GEN. STAT. ANN.

§ 4a-12(b); DEL. CODE ANN. tit. 6, § 2432A; Ga. CODE

ANN. § 10-1-382(a); KAN. STAT. ANN. § 20-379(c)(5);

Miss. CODE ANN. § 7-5-7(2)(a); N.J. STAT. ANN.

§ 52:18-37; OHIO REV. CODE ANN. § 131.02; PA. STAT.

AND CONS. STAT. ANN. § 732-204(c); TEx. GOVT. CODE

ANN. § 2107.003. The complexity of state taxing struc-

tures and the need for robust state tax-collection pro-

grams underscore why States may need the flexibility

to hire private contractors and to claim the state-of-

ficer exemption under the FDCPA.

States’ debt-collection systems often reflect the

complexity of their taxing structure. Consider Michi-

gan. Between 2011 and 2014, Michigan reported col-

lecting over 31 types of state taxes—taxes as diverse

as casino gaming, oil and gas severance, horse-race

wagering, liquor markup, property taxes, state educa-

tion taxes, and airport parking excise taxes. Citizens

Research Council of Michigan, Outline of the Michi-

gan Tax System 85.! That number represents a dra-

matic increase from the 22 types of taxes reported dur-

ing the years 1993-1996. Outline of the Michigan Tax

1 Available at http://crcmich.org/PU BLICAT/2010s/2015/ Tax

%200utline_ALL.pdf.

22

System, Report No. 322.2 Increasing complexity de-

mands state ingenuity and flexible tools.

In addition to their complexity, state tax struc-

tures are often in flux as state policy shifts and

evolves. Michigan, for example, has in recent decades

seen a shift from local taxation to state-level taxation

in financing the State’s K-12 school system.? The

State has also expanded its own tax system through

increased sales tax and a new real estate transfer tax.

Michigan, as well as all States, must have the tools to

keep pace with the changing tax landscape.

Why does this matter? In large part it matters be-

cause States must safeguard their fiscal health.

States continue to face the repercussions of the recent

economic downturn. Sarah Arnett, State Fiscal Con-

dition: Ranking the 50 States 3 (Mercatus Center at

George Mason University, Working Paper No. 14-02,

2014). Fiscal simulations by the Government Account-

ability Office, an independent agency that provides

Congress with audit, evaluation, and investigative

services, suggest concern for the long-term outlook for

States’ fiscal condition. (Jd., citing GAO 2013). States

need revenue, and revenue is tied to effective debt col-

lection.

Not surprisingly then, the National Association of

State Auditors, Comptrollers and Treasurers has rec-

2 Available at http://www.cremich.org/PU BLICAT/1990s/1997/

rpt322.pdf.

3 Available at http://cremich.org/PUBLICAT/2010s/2015/

Tax_Outline_ALL.pdf.

23

ommended that States must aggressively explore bet-

ter ways to increase efficiency and raise revenue to

maintain citizen services. Government Debt Collec-

tion: Survey Report and Recommendations 11. Its sur-

vey report observed that enhancing debt-collection

tools and capabilities would likely increase revenues

“by scores of millions of dollars each year.” Jd. In fact,

according to the survey, a number of States are “con-

sidering expanding their delinquent debt collection

programs to increase revenue from their accounts re-

ceivable as part of a balanced program for getting into,

and staying in, fiscal shape.” Id.

There are good reasons why robust state debt-col-

lection programs are linked to increased revenue.

First, robust enforcement discourages nonpayment of

taxes. Most state tax systems are based on voluntary

compliance by taxpayers, so enforcement is a neces-

sary activity to recover tax receivables and keep vol-

untary reporting and payment from decreasing. If the

State is viewed as being lax on enforcement, volun-

tary-compliance numbers are almost certain to drop.

Second, robust enforcement reduces the tax burden

for the millions of individual citizens and businesses

who do comply with the tax laws. Third, robust en-

forcement benefits tax-paying businesses through

minimization of the unfair competitive advantage

gained by businesses that do not pay their taxes.

But innovative and robust efforts to collect debts

often require increased state intervention. This, in

turn, is likely to require the assistance of private con-

tractors.

24

Whether in debt collection or beyond, States need

the flexibility to use private contractors. Their deci-

sion to do so may depend on whether they can derive

the benefits and protections available from federal

statutes such as the FDCPA.

CONCLUSION

For these reasons, the Court should reverse the

decision below.

Respectfully submitted,

Bill Schuette

Michigan Attorney General

Aaron D. Lindstrom

Solicitor General

Counsel of Record

P.O. Box 30212

Lansing, Michigan 48909

LindstromA@michigan.gov

(517) 373-1124

Ann M. Sherman

Assistant Solicitor General

Attorneys for Amicus Curiae

State of Michigan

Dated: FEBRUARY 2016

ADDITIONAL COUNSEL

Luther Strange

Attorney General

State of Alabama

501 Washington Ave.

Montgomery, AL 36130

Leslie Rutledge

Attorney General

State of Arkansas

323 Center St. Ste. 200

Little Rock, AR 72201

Mark Brnovich

Attorney General

State of Arizona

1275 W Washington

Phoenix, AZ 85007

Douglas S. Chin

Attorney General

State of Hawaii

425 Queen Street

Honolulu, HI 96813

Lawrence Wasden

Attorney General

State of Idaho

P.O. Box 83720

Boise, ID 83720-0010

Derek Schmidt

Attorney General

State of Kansas

120S.W 10th Ave.

2nd Floor

Topeka, KS 66612-1597

Jeff Landry

Attorney General

State of Louisiana

P.O. Box 94005

Baton Rouge, LA 70804

Jim Hood

Attorney General

State of Mississippi

P.O. Box 220

Jackson, MS 39205

Wayne Stenehjem

Attorney General

State of North Dakota

600 E. Boulevard Ave.

Bismarck, ND 58505

E. Scott Pruitt

Attorney General

State of Oklahoma

313 N.E. 21st Street

Oklahoma City, OK

73105

26

Herbert Slatery III

Attorney General and

Reporter

State of Tennessee

425 5th Avenue North

Nashville, TN 37202

la

APPENDIX A

MICHIGAN

ACCOUNTS RECEIVABLE COLLECTION SYS-

TEM

POST OFFICE BOX 30158

LANSING, MICHIGAN 48909

Date: December 8, 2014

Account No:

Contact Telephone No:

1-866-754-8649

Your account has been referred to the Michigan Ac-

counts Receivable Collection System (MARCS), which

is operated on behalf of the State of Michigan by GC

Services Limited Partnership, a private debt collec-

tion company. GC Services Limited Partnership em-

ployees at the Michigan Accounts Receivable Collec-

tion System (MARCS) site are representatives of the

Michigan Department of Treasury authorized to col-

lect delinquent taxes owed to the State. To avoid fur-

ther collection activity, send your payment in

full along with a copy of the State’s notice in the

enclosed envelope immediately.

You have previously received a final demand letter

from the Michigan Department of Treasury summa-

rizing your account. If you have questions about your

account, you should call the number listed above. This

is an attempt to collect amounts due to the State and

any information obtained will be used by GC Services

Limited Partnership, only for that purpose.

2a

For your convenience, you can now pay on the web at

no additional charge by going to www.michigan.gov/

collectionseservice

LT-91P-B (Rev. 09/13)

Letter G-1091 (MARCS)

Enclosures:

Attachment

Envelope