Rewrite This Sentence

by Justice Bill Boyce, Fourteenth Court of Appeals

The phrase “jump the shark” owes its existence to the beloved 1970s television sitcom Happy Days.

Photo courtesy of wikipedia.com
Several years into the show’s long run as a weekly viewing staple, weary Happy Days script writers started running out of ways to exploit 1950s nostalgia. Plots went from implausible to bizarre. Deteriorating story quality became manifest with the broadcast of a 1977 episode built around this burning question: Could Arthur “Fonzie” Fonzarelli muster the courage to jump over a live shark while waterskiing? (Spoiler alert: He did; hilarity ensued.)
“Jump the shark” soon entered the popular lexicon to describe that precise moment signaling the arrival of creative exhaustion and the inevitable demise of a once-mighty entertainment franchise. One can only surmise that the exploding head scene in The Interview heralds such a moment for Seth Rogen.

Looking beyond the entertainment realm, this phrase has acquired a broader meaning capturing the notion of taking an idea way too far. And that brings us to Yates v. United States, 135 S.Ct. 1074 (Feb. 25, 2015), in which five justices concluded that the prosecution of a commercial fisherman under the Sarbanes-Oxley Act was tantamount to jumping the shark – or, to be more precise, jumping the 20-inch red grouper.

The United States prosecuted John Yates under 18 U.S.C. § 1519, which provides for a fine and imprisonment up to 20 years for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with an intent to impede an investigation. This provision was one aspect of the legislative response to the massive financial and accounting fraud leading up to Enron Corporation’s collapse.

Yates’s prosecution arose from a visit to his fishing boat off the Florida coast by an agent of the National Marine Fisheries Services, who determined that Yates had caught 72 fish that were shorter than the 20-inch minimum specified in federal regulations for red grouper. The agent told Yates to keep the undersized fish segregated in crates on the boat. When Yates docked in Florida four days later, the agent determined that Yates had thrown the undersized fish overboard. Yates was convicted for violating section 1519 and another statutory provision, and the court of appeals affirmed his conviction.

The Supreme Court reversed Yates’s conviction under section 1519 in a fractured decision that produced a plurality opinion written by Justice Ginsburg, who was joined by Chief Justice Roberts and Justices Breyer and Sotomayor. Justice Alito concurred in the judgment and wrote a separate opinion explaining his narrower reasons for reversal. Justice Kagan dissented, joined by Justices Scalia, Kennedy, and Thomas.

The fight centered on section 1519’s use of the phrase “tangible object.” All justices agreed that, in the abstract, a fish is indeed a “tangible object.” The split arose because the plurality and Justice Alito concluded that section 1519’s statutory context mandated a narrower reading of these words so that this provision’s prohibition against destruction of a “tangible object” did not reach Yates’s action in throwing undersized red grouper overboard.

Per Justice Ginsburg: “[I]t would cut section 1519 loose from its financial-fraud mooring to hold that it encompasses any and all objects, whatever their size or significance, destroyed with obstructive intent.” Id. at 1079. “Mindful that in Sarbanes-Oxley, Congress trained its attention on corporate and accounting deception and cover-ups, we conclude that a matching construction of section 1519 is in order: A tangible object captured by section 1519 . . . must be one used to record or preserve information.” Id.

According to Justice Alito, section 1519 “does not cover every noun in the universe with tangible form” when read in light of the statute’s list of nouns, its list of verbs, and its title. Id. at 1090 (Alito, J., concurring). Section 1519’s title reads as follows: “Destruction, alteration, or falsification of records in Federal investigations and bankruptcy.” Per Justice Alito: “This too points toward file keeping, not fish.” Id.

For her part, Justice Kagan concluded that “conventional tools of statutory construction all lead to a more conventional result: A ‘tangible object’ is an object that’s tangible. I would apply the statute that Congress enacted and affirm the judgment below.” Id. at 1091 (Kagan, J., dissenting).

There are colorable statutory construction arguments on both sides of this issue. All three opinions plausibly marshal authorities and rules to advocate their respective conclusions. Those justices having an inclination to examine legislative history dutifully mine the record for supporting nuggets.

While one will search these opinions in vain for the phrase “jump the shark,” there are hints that this decidedly non-legal concept played a role in the debate. A pungent whiff of “this is a bit much” comes across when Justice Ginsburg observes as follows: “[T]he Government urges a reading of section 1519 that exposes individuals to 20-year prison sentences for tampering with any physical object that might have evidentiary value in any federal investigation into any offense . . . .” Id. at 1088 (original emphasis). It emerges again when Justice Alito states that “the Government’s argument, though colorable, becomes too implausible to accept.” Id. at 1090 (Alito, J., concurring). Justice Kagan acknowledges these concerns but attributes them to a “deeper pathology in the federal criminal code” characterized as “overcriminalization and excessive punishment.” Id. at 1100-01 (Kagan, J., dissenting).

The lesson Yates holds for advocates is to keep an eye on the shark’s location when formulating legal arguments. Logically plausible contentions still may fall short if they require a jump the court simply is not willing to make.