09:27, October 31 62 0 abajournal.com

2017-10-31 09:27:04
Chemerinsky: The myth of ‘plain meaning’



In his first opinion for the court last spring, in Henson v. Santander Consumer USA, Justice Neil Gorsuch channeled Justice Scalia and said that the court had to follow the “statute’s plain terms” and concluded the “proper role of the judiciary in that process is to apply, not amend, the work of the People’s representatives.”

The problem with this approach is that the cases that come to the Supreme Court involving statutory construction rarely involve laws where the language has a clear, plain meaning. Instead, the court engages in a fiction: It quotes the ambiguous language, declares that there is a “plain meaning,” and then comes to its desired conclusion.

Two cases from last term involving the Fair Debt Collection Practices Act (FDCPA) illustrate this. In Henson v. Santander Consumer USA, the issue was whether The act applies to creditors who had purchased the debt from another creditor. The FDCPA was adopted to deal with the abusive practices of creditors in collecting debts, such as calling people who owed money at night, threatening criminal prosecution, harassing them at work, and worse.

The facts in Henson were straightforward. CitiFinancial Auto loaned money to individuals seeking to buy cars. Some borrowers defaulted on their loans. Santander Consumer purchased the defaulted loans from CitiFinancial and then sought to collect what was owed. The complaint in the lawsuit alleged that Santander Consumer engaged in abusive conduct that violated the FDCPA.

The issue before the Supreme Court was whether the FDCPA applied to Santander Consumer. The act applies to a “debt collector.” The act includes a definition of a “debt collector”: “The term ‘debt collector’ means any person who uses any instrumentality of interstate commerce or the mail in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” The question was whether Santander Consumer fits into this definition.

Justice Gorsuch, writing for a unanimous court, said, “We begin, as we must, with a careful examination of the statutory text.” The court found the answer to the question presented in the plain meaning of the law. Justice Gorsuch declared: “And by its plain terms this language seems to focus our attention on third party collection agents working for a debt owner—not on a debt owner seeking to collect debts for itself.”

But looking at the “plain terms” hardly provides the answer the court arrives at. The FDCPA says that it applies to a business the “principal purpose of which is the collection of any debts.” Isn’t that exactly what Santander Consumer is doing? The court focuses on the alternative way to find someone a debt collector, someone who “regularly collects or attempts to collect … debts owed or due … another.” But Santander Consumer is collecting a debt that the debtor owes to another, previously CitiFinancial Auto and now Santander Consumer.

By pretending that the statute’s plain meaning is clear, the court sees no reason to consider the interpretation of the law which would best serve the law’s purpose. Congress’s goal in adopting the FDCPA was to prevent creditors from engaging in abusive collection practices. From this perspective, it hardly should matter whether it is the original creditor or a creditor who purchased the debt from the original creditor. Congress wanted to stop abusive practices by creditors and the court’s interpretation unquestionably frustrates that goal.

Earlier last spring, the court decided another case involving interpretation of the FDCPA, Midland Funding, LLC v. Johnson. The case involved whether creditors violate the FDCPA when they file a proof of claim in bankruptcy court knowing that it is barred by the statute of limitations. Johnson filed for bankruptcy under Chapter 13. Midland Funding filed a proof of claim in in the bankruptcy case, asserting that Johnson owed Midland credit-card debt. However, the last time any charge appeared on Johnson’s Midland account was more than 10 years ago. The relevant statute of limitations under Alabama law is six years.

The FDCPA prohibits a debt collector from asserting any “false, deceptive, or misleading representation,” or using any “unfair or unconscionable means” to collect, or attempt to collect, a debt. The Supreme Court, in a 5-3 decision, held that the filing of a proof of claim that is obviously time barred does not violate the act. Justice Stephen G. Breyer wrote for the court, joined by Chief Justice John G. Roberts, Jr. and Justices Anthony Kennedy, Clarence Thomas, and Samuel A. Alito. Justice Sonia Sotomayor wrote a strong dissent, joined by Justices Ruth Bader Ginsburg and Kagan.

Once more, the court comes to its conclusion by asserting that words of the statute clearly resolve the case. Justice Breyer, who often challenged Justice Scalia’s reliance on plain meaning, declared: “[W]e conclude that Midland’s filing of a proof of claim that on its face indicates that the limitations period has run does not fall within the scope of any of the five relevant words of the Fair Debt Collection Practices Act.”

But filing a claim knowing that it is time barred seems “unfair” and “unconscionable.” As Justice Sotomayor explained in her dissent: “Professional debt collectors have built a business out of buying stale debt, filing claims in bankruptcy proceedings to collect it, and hoping that no one notices that the debt is too old to be enforced by the courts. This practice is both ‘unfair’ and ‘unconscionable.’”

She explains that companies file claims in state courts and in bankruptcy courts with debts too old to be enforced. Their “hope in these cases is that consumers will fail either to invoke the statute of limitations or to respond at all: In most states, the statute of limitations is an affirmative defense, meaning that a consumer must appear in court and raise it in order to dismiss the suit. But consumers do fail to defend themselves in court—in fact, according to the FTC, over 90 percent fail to appear at all. The result is that debt buyers have won ‘billions of dollars in default judgments’ simply by filing suit and betting that consumers will lack the resources to respond.”

Again, if plain language provides any answer, it is that the creditors are engaged in a practice that is unfair and unconscionable. But the court comes to the opposite conclusion.

In both cases, the court interprets the FDCPA, a statute meant to protect consumers, in a way that strongly favors creditor businesses. It hides that value judgment under the guise of just following the plain meaning of the statute. These cases are typical of what usually happens in cases where the court says it will interpret laws based on their plain meaning. Pretending plain meaning provides answers when it doesn’t obscures the real basis for the decisions and keeps the court from focusing on fulfilling the legislature’s purposes in enacting a law.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).