Oral Argument Highlights In Yates

I have a few quick thoughts on the oral argument in Yates. Recall that the issue is whether the term "tangible object" in the "anti-shredding provision" of Sarbanes-Oxley, section 1519, includes objects such as fish. Yates argues that "tangible object" must be read narrowly because it appears in sequence with the terms "record" and "document" and because the purpose of the anti-shredding provision was to ensure companies did not destroy business records in the wake of Enron/Arthur Andersen.

1. Yates's counsel appeared to concede that the nearly identical language of 18 U.S.C. 1512(c)—“record, document, or other object”—would cover his client’s conduct. (Tr. 13). In my view, that is a fairly damaging concession. It means that Yates is effectively abandoning any pretense of making a textual argument, and rests solely on the seeming oddity of prosecuting the destruction of fish under a statute that was clearly meant to address the destruction of business records. But if that were the case, why did Congress use nearly identical language in section 1519 to mean something different from section 1512?

And as the assistant SG pointed out in his argument (Tr. 41), the concession means that Congress has elsewhere passed provisions within Sarbanes-Oxley that would cover the destruction of fish, since section 1512 is a part of that act. So Yates’s argument starts to break down when you consider that he concedes that parts of Sarbanes-Oxley can apply to fish, just not this part.

2. A number of justices expressed concern that, like in the Bond case, federal prosecutors have failed to exercise their prosecutorial discretion. (Tr. 27) (Justice Scalia joking that “Is this the same guy that – that brought the prosecution in Bond last term?”); (Tr. 31) (Chief Justice Roberts discussing the inordinate leverage the government’s broad charging practices give it in plea negotiations); (Tr. 36) (Justice Breyer: “And why wouldn’t it happen? It wouldn’t happen because they’d never prosecute it, though I’ve had my doubts recently.”).

Justice Scalia went so far as to suggest that he would account for the government's overreaching prosecutorial policies by adjusting his own view of statutes:

Well, if that’s going to be the Justice Department’s position, then we’re going to have to be more careful about how extensive statutes are. I mean, if you’re saying we’re always going to prosecute the most severe, I’m going to be very careful about how severe I make statutes...Or – or how much coverage I give to severe statutes.

(Tr. 29). For a strict textualist like Scalia, that’s a pretty extreme statement. There is really no basis for the Court to read a statute narrowly just because the government has an internal policy about applying the statute whenever it is a lawful fit to the alleged conduct. The mere fact that the government isn’t generous enough with its exercise of discretion doesn’t change Congress’s intent when it passed the statute, which as Justice Scalia is usually the first to point out, is what actually matters.

Justice Kennedy also made some intriguing comments on prosecutorial discretion: “But [Yates] has no – he has no doctrinal basis to make that argument [limiting the scope of the term ‘tangible object’ to not include fish] other than to say that there is such a doctrine as prosecutorial discretion and, A, that it’s enforceable and, B, that it has some substance,  and you’ve indicated that it has neither” and “Well, it seems to me that we should just not use the concept or refer to the concept at all anymore.” (Tr. 52-53).

I find these statements very confusing. They suggest that prosecutorial discretion is something other than what it plainly is—a matter of discretion. I’m unaware of any case where the concept of prosecutorial discretion was used to read statutes narrowly.

More than anything, I think the Court is trying to send a message to DOJ that it doesn’t want to see these sorts of prosecutions going forward. DOJ might be wise to heed that message.

3. Justice Breyer appeared to think that there were some void-for-vagueness problems with the statute. (Tr. 17). Again, I have no idea why that would be. The term “tangible object” probably just refers to any object that has a physical form. Because fish have a physical form, they’re covered. What’s vague about that? (Justice Scalia made this point at the argument, Tr. 17).

But when Yates’s counsel tried to press that point in oral argument, even Justice Breyer was resistant—“Yes, but it wasn’t raised below. And these are very difficult issues and it’s sort of flying blind not to have lower court opinions and the thing fully argued out before we get to it.” (Tr. 55). So while there were a few mentions of vagueness in Yates’s brief, the Court likely won’t entertain that argument because of waiver.

 

Sixth Circuit Creates Circuit Split On Gay Marriage

There is finally a circuit split on the same-sex marriage issue. The Sixth Circuit today upheld gay marriage bans in Tennessee, Ohio, Michigan, and Kentucky. Here's the opinion. The split greatly increases the likelihood of the Supreme Court taking up this issue. The Court had previously declined to grant cert on the issue, but at that point no circuit split existed.

Respected conservative Judge Sutton wrote the majority opinion (the court split 2-1). The opinion begins with this paragraph:

"This is a case about change—and how best to handle it under the United States Constitution.  From the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen.  That would not have seemed likely as recently as a dozen years ago.  For better, for worse, or for more of the same, marriage has long been a social institution defined by relationships between men and women.  So long defined, the tradition is measured in millennia, not centuries or decades.  So widely shared, the tradition until recently had been adopted by all governments and major religions of the world."

Update On Stufflebeam/Gay Divorce Issue

The Florida Third District Court of Appeal has yet to rule in Oliver v. Stufflebeam, where the question is whether the Florida ban on same sex marriage recognition applies to also bar same sex divorce. But in early September, the Florida Supreme Court declined to hear a case out of the Second District that had certified the question as being one of great public importance. That was the Shaw case that I reported on here.

As I mentioned in my original post on Shaw, it is far likelier that the Florida Supreme Court will rule on this issue once the district courts have provided some guidance. 

Because the Court declined to take the Shaw case based on the certified question, the Second District will now have to grapple with the issue itself.

UPDATE: The Stufflebeam argument took place on April 30th of this year. So it's now been just over 6 months without a decision. 

Cato Institute Pun

The United States is the rightful subject of scorn for its prosecution of John Yates, who was convicted under Sarbanes-Oxley's Section 1519 for disposing of red grouper--yes, red group the species of fish--after harbor patrol had caught him fishing them illegally. Sarbanes-Oxley, of course, is a white collar statute that has absolutely nothing to do with fishing. 

The question in the case is whether the words "tangible object" in Sarbanes Oxley can be read to encompass red grouper. This is how the Cato Institute phrased the Question Presented in its amicus brief:

"Did the Eleventh Circuit go overboard when it interpreted Section 1519, a provision of the Sarbanes-Oxley Act that forbids the destruction of 'any record, document, or tangible object," to criminalize the throwing of undersized fish into the Gulf of Mexico?"

Not only did Cato go for the pun, they also did a great job of conveying how absurd the government's position is (i.e., "Gulf of Mexico").

Here is SCOTUSBlog's case page for Yates v. United States.

The case presents a fun statutory interpretation issue, so I'll try to post on the merits soon. The oral argument is scheduled for Wednesday, November 5.

Summing Up An International Law Norm In One Sentence

This short sentence from the EU's amicus brief in Roper v. Simmons effectively summed up the consensus of the international community--that the United States kept poor company when it came to executing children:

"Since 1990, only eight countries reportedly executed children: Iran (8), Saudi Arabia (1), Nigeria (1), the Democratic Republic of Congo (“DRC”) (1), Yemen (1), Pakistan (3), China (1) and the United States (19)." Br. at 8-9.

The Court ultimately held that the practice of executing minors violated the Eight Amendment's prohibition on cruel and unusual punishment.

Loads Of Good Stuff In This Cert-Stage Reply Brief!

I enjoyed reading the reply brief in Baker Botts L.L.P. v. ASARCO LLC, which was featured on SCOTUSBlog today. In the first paragraph I've excerpted below, the petitioner observes that the respondent's BIO reverses course from the position the respondent took below. I won't bother explaining the context since I think it's clear from the following:

4. ASARCO was more honest about Smith in its briefing below. It never contended that it could prevail under Smith because its objections were non-frivolous or caused "meaningful reduction[s]." Instead, ASARCO urged the Fifth Circuit to reject Smith as "wrongly decided" and "inconsistent with [opinions] that denied fees for defending a fee application." 5th Cir. Reply Br. 22, 26 (filed Mar. 8, 2012). Having persuaded the Fifth Circuit, ASARCO cannot now credibly claim that the split makes no difference on these facts.

In this next paragraph, the petitioner does something I've commented on elsewhere: Treats certworthiness as a legal proposition:

1. ASARCO does not dispute that this Court commonly resolves 1-1 or 2-1 splits involving bankruptcy. See, e.g., Clark v. Rameker, 134 S. Ct. 2242, 2246 (2014) (1-1 split between Fifth and Seventh Circuits); Radlax Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065 (2012) (petition and BIO debate 1-1 or 2-1 split involving Fifth Circuit); Hall v. United States, 132 S. Ct. 1882, 1886 & n.1 (2012) (1-1 split between Eighth and Ninth Circuit when granted; Tenth Circuit ruled post-grant). That practice honors the Constitution's call for "uniform laws on the subject of Bankruptcies throughout the United States," Art. I, ****8, cl. 4. And it reflects that "the current appellate structure of the bankruptcy system" results in "relatively few bankruptcy appeals mak[ing] their way up to the circuit courts." Pardo & Watts, The Structural Exceptionalism of Bankruptcy Administration, 60 UCLA L. Rev. 384, 438-39 (2012); see Florida Amicus Br. 17. ASARCO's claim that the issues reaches the circuit level only once a decade makes review more urgent to avoid consigning the bankruptcy system to disarray for another decade or more.

Framing The Facts In Appellate Opinions

Here's a neat opening line in a decision written by Chief Judge Schwartz of the Third District Court of Appeal in Florida:

"At the end of the proceeding instituted by a financially dissatisfied adopted son, the trial court determined that ninety-four-year-old Louis LeWinter was incapable of fully exercising his rights to manage his property and to consent to medical treatment and appointed a guardian to perform those functions for him." LeWinter v. Guardianship of LeWinter, 606 So. 2d 387 (Fla. 3d DCA 1992).

No surprise to any astute reader, here's the next line: 

"We reverse because there is no competent evidence to support the order."