Supreme Group Gropes Its Way to a Grouper Decision

Split Supreme Court sides with fisherman in grouper-tossing case

A divided Supreme Court ruled Wednesday that prosecutors should not have used a far-reaching federal law passed in the wake of the Enron scandal to go after a Florida fisherman convicted of tossing undersized grouper off his boat.

 From a previous blog post on the subject:

"The issue is that the crew of the Miss Katie was caught with undersized fish. A marine fisheries officer wrote them a ticket and put the fish in a box that the captain was ordered to turn in when he got ashore. Rather than do this, they threw out the undersized fish and replaced them with bigger ones."

The court ruled 5 to 4 that Congress did not mean for the Sarbanes-Oxley Act, which prohibits the destruction of “any document, record or tangible object” meant to impede a federal investigation, to include “all objects in the physical world.”

The decision was a blow to the government — not because of the case of fishing captain John Yates — but because prosecutors have used the “tangible object” language to go after other activities meant to cover up crimes, such as moving a corpse and painting over blood splatter.

But Justice Ruth Bader Ginsburg said within the confines of Sarbanes-Oxley, which was passed after Enron’s outside auditor Arthur Andersen had systematically destroyed potentially incriminating documents, tangible objects cover “only objects one can use to record or preserve information.”

In explaining the court’s decision, Ginsburg noted from the bench that the law covers “falsifying” any tangible object.

A fish was tangible the last time I touched one.

Ginsburg’s opinion was joined by Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer and Sonia Sotomayor. Justice Samuel A. Alito Jr. agreed with the outcome but filed a separate opinion.

Alito did not say exactly what he found objectionable in Ginsburg’s opinion, but agreed that three things — the “statute’s list of nouns, its list of verbs and its title” — led to the conclusion that the term tangible objects should not be stretched to include fish.

As I said when I blogged this case on it's way to the Supremes, I'm a little torn. While I think poachers should be busted, I am not in favor of overly elastic law being stretched to cover everything. The arresting authorities should have busted them on the spot, seized the fish, issued a summons and maybe escorted them to the dock. To leave them in possession of the disputed fish without making sure the charges would stick is insane.