November 28, 2011


WASHINGTON — “This is the strangest statute I have ever seen,” Chief Justice John G. Roberts Jr. said near the end of a Supreme Court argument on Monday.

The justices had spent most of the previous hour trying to puzzle out the meaning of a part of 1991 federal law that addresses telemarketing abuses, and they had reached consensus on only one point.

“Both sides agree it’s odd, and all nine justices agree it’s odd,” Justice Elena Kagan said. “I mean, I think we can say that this statute is odd. And the question is, where do we go from there?”

The law, the Telephone Consumer Protection Act, prohibits many uses of automatic dialing equipment, recorded messages, unsolicited faxes and similar practices, and it allows those who receive such communications to sue for at least $500 per violation. The amount may be tripled if the caller is found to have knowingly broken the law.

The plaintiff in Monday’s case, Marcus D. Mims, sued after receiving automated debt-collection calls on his cellphone.

The question in his case, Mims v. Arrow Financial Services, No. 10-1195, was the proper place for recipients of unlawful communications to file their suits. The law says that affected people “may, if otherwise permitted by the laws or rules of a state” sue “in an appropriate court of that state.”

But may they also sue in federal court? The law is silent on that point, though the general rule is that federal courts have jurisdiction to hear claims arising from federal laws.

Justice Kagan said the general rule should apply unless Congress made it quite clear that the general rule should not. “If it’s odd and we can’t figure it out,” she said, “the default position seems to be federal courts have jurisdiction over federal questions.”

Justice Antonin Scalia said there were institutional reasons for that presumption.

“We are jealous of our jurisdiction,” he said of federal judges, adding: “That’s what gets our hackles up, when you are telling us we have been ousted of jurisdiction.”

But Justice Stephen G. Breyer said he could think of a good reason to limit suits under the law to state courts. “Congress seemed to want to have ordinary people to be able to go into small claims court in a state and bring an action for $500 because they were pestered by these salesmen on the phone in violation of the act,” he said.

If defendants were allowed to move such suits to federal court, Justice Breyer continued, a simple case could easily turn into a complicated and expensive one.

Scott L. Nelson, a lawyer for Mr. Mims, said that situation was unlikely.

Justice Anthony M. Kennedy was not persuaded. “That’s exactly what’s going to happen,” he said.

Justice Sonia Sotomayor, on the other hand, said it would have been illogical for Congress to allow consumers to sue only in state court. Most states had laws against the practices addressed by the federal law by the time it was enacted, and the federal law applies only if it is permitted by state law.

“What is the logic of your position?” Justice Sotomayor asked Gregory G. Garre, who represented the defendant. “Why even bother passing a federal law if it was going to give states the option to protect against this kind of conduct alone?”

Mr. Garre said the law also contemplated possible lawsuits from state attorneys general. Those lawsuits from state officials, the law says, in further testament to its oddness, may only be brought in federal court.