Monthly Archives: May 2017

It’s all fun and games until someone gets arrested: Predators fan charged for catfish toss

Criminal Law

By Daniel Horwitz:

In an absolutely outrageous abuse of law enforcement authority, Pittsburgh police are celebrating the fact that they have just filed criminal charges against a Nashville Predators fan for tossing a catfish onto the ice during game one of the Stanley Cup finals.  Until the inevitable change of course—when law enforcement claims that this was all just an innocent misunderstanding that was really meant to be a joke—the culprit faces criminal prosecution for: (1) possessing instruments of crime (specifically: a catfish); (2) disorderly conduct (catfish throwing); and (3) disrupting meetings and processions (of a hockey game, for Chrissake, where throwing hats on the ice is, on appropriate occasions, part of the Fans’ Code of Conduct).

At the time, the fan’s successful execution of the beloved 14-year-old Nashville hockey tradition—originally inspired by Detroit Red Wings fans, who have been tossing octopuses on their home ice for more than half a century—was met with widespread merriment.  Local superstar Carrie Underwood, who also happens to be the wife of Predators Captain Mike Fisher, adoringly tweeted that the culprit was her “hero”—instantly generating agreement from 10,000 approving fans.  Sports Blog Nation called on hockey lovers to “embrace the catfish” after it inspired the Preds’ furious comeback from a 3-0 first period deficit.  Local Nashville politics writer Steven Hale correctly observed that the tosser “should not pay for a drink the rest of the series.”  In sum: with just one exception, every non-marine creature and non-PETA member in the Animal Kingdom who witnessed the stunt enjoyed it, and nobody (except the catfish) was hurt.

Unfortunately, that one exception happens to be the Pittsburgh Police Department, whose officers—in addition to carrying badges and guns—apparently have the world’s worst judgment and the sense of humor of a Columbian drug cartel.  The statutes that Jacob Waddell is currently accused of violating can be found here, here, and here, respectively.  His “possessing instruments of a crime” charge alone appears to carry up to five years in prison and a $10,000.00 fine.  Hilarious indeed.

Many have responded (appropriately) by mocking the Pittsburgh Police for their outrageousness here.  Fittingly, those trolling the department even include the Tennessee Bureau of Investigation, which published a photo of the offending “criminal instrument” on the ice along with the note that: “We’ve seen a lot of ‘instruments of crime’ over the years. Can’t honestly say we’ve seen a case with one of these.”  “Instrument of Crime” t-shirts emblazoned with a wriggling catfish have already popped up online, and several members of Nashville’s Metro Council are in the midst of drafting a resolution calling for Mr. Waddell to be pardoned.  Generally speaking, everyone’s having a good laugh at Pittsburgh’s expense, which its Police Department rightly deserves in spades.

Lost in much of the mockery, however, is the more serious significance of the Pittsburgh Police Department’s misconduct here.  There is no such thing as an insignificant criminal charge.  People who have a criminal record—a list of more than 65 million Americans that now includes at least one harmless catfish tosser—are all instantly subject to legal discrimination in employment, housing, and other areas of civic life.  If Mr. Waddell ever applies for a new job, for example, many employers will require him to check a box indicating that he has previously been charged with a crime, and few will ever give him the opportunity to explain why.  His mugshot will be a public record.  If he ever seeks to become an attorney or a member of another highly regulated profession, Tennessee’s famously unreasonable Board of Law Examiners could deny him the opportunity based on “lack of character and fitness” attributable to his charges.  Altogether, a state-by-state inventory cataloging the tens of thousands of collateral consequences that Mr. Waddell now faces in each state as a result of his criminal charges can be accessed here.

To be clear: Mr. Waddell did not actually possess anything that can reasonably be construed as an instrument of a crime.  The Pittsburgh Police also don’t initiate mass disorderly conduct arrests or “disrupting meetings and processions” arrests after Sidney Crosby hat tricks—indicating rather persuasively that they don’t traditionally consider throwing items onto the ice to be criminal acts.  So why, exactly, did this happen?  The answer, quite literally, is that Mr. Waddell was charged with multiple crimes because he was an opposing fan who was carrying out a harmless Predators fan tradition.  The fact that the Pittsburgh Police inexplicably thought their arrest would be so popular that they touted it in a press release makes this an especially pointed example of the kind of abuse and massive overcriminalization that has been creeping into American jurisdictions for decades.  Tragically, though, examples of such overcriminalization are far from isolated.

Ultimately, this situation will resolve itself because the poor PR that it has generated demands it.  After the smoke clears, though, the hapless officers of the Pittsburgh Police Department will continue to arrest people for harmless, minor crimes that serve to ruin their lives forever—and they will not be alone in doing so.  And that, unfortunately, is no laughing matter.

Update 1: The Mayor of Pittsburgh has released a statement making light of the situation as well.  It reads: “This has turned into a whale of a story.  From my perch, I agree with Mayor Barry that we shouldn’t be baited into interfering with this fish tale, but if the charges eventually make their way to a judge I hope the predatory catfish hurler who got the hook last night is simply sentenced to community service, perhaps cleaning fish at Wholey’s.”

Update 2: The Pittsburgh District Attorney has dropped all charges.  From The Tennessean: “‘Having reviewed the affidavit involving Mr. Waddell as well as the television coverage of the incident, District Attorney Zappala has made the determination that the actions of Mr. Waddell do not rise to the level of criminal charges,’ a statement from Allegheny County District Attorney spokesman Mike Manko reads.”

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New Law Reduces Tennessee’s Expungement Fee for Convictions from $450 to $280

Expungement

By Daniel Horwitz:

A new law that reduces the total cost of expunging a conviction from $450 to $280 was officially signed by Governor Haslam on May 25, 2017.  The new law, sponsored by Representative Raumesh Akbari (D-Memphis) and Senator Mark Norris (R-Collierville), takes effect immediately.

Until yesterday, Tennessee had the third-highest expungement fee in the entire country.  Regrettably, even if a person is indigent, Tennessee also does not allow expungement fees to be waived—meaning that expungement still remains out of reach for many of the people who need it most.  However, reducing the total cost of expunging a conviction by nearly 40% will significantly improve access to expungement for those who are eligible to have their charges cleared.  As a result, this reform should be universally applauded.

In Tennessee, people whose charges were dismissed are eligible to have their records expunged for free.  However, only some convictions are eligible to be expunged.  If a person was convicted of a felony, then the person may be eligible for expungement if their charge appears on this list.  If a person was convicted of a misdemeanor, then the person may be eligible for expungement if their charge does not appear on this list.  Based on a new law enacted on May 5, 2017, some people with exactly two eligible convictions can now get both of their charges expunged as well.  Additional details on that new “double expungement” law are available here.

If you think you may be eligible to have your record expunged and want to hire an attorney to file your paperwork for you, please click here.

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Tennessee Supreme Court Holds that Divorce Contracts Must be Enforced as Written

Contract Law, Family Law, Tennessee Constitutional Law, ,

By Daniel Horwitz:

In a common-sense opinion that clarified a muddled conflict among lower courts, the Tennessee Supreme Court has held that fee-shifting provisions in divorce agreements must be enforced as written.  Offering a forceful defense of the right to contract, Chief Justice Bivins’ unanimous opinion in Eberach v. Eberach instructs all lower courts that they do not have any discretion to deny attorney’s fees to a prevailing party if a contract agreed to by both parties makes such an award mandatory.

Eberach involved litigation between a former husband and wife following their divorce.  In 2011, the couple divorced and entered into a “marital dissolution agreement,” or “MDA.”  In lay terms, an MDA is a binding contract that sets out the terms of a divorce.  Among other things, the parties’ MDA provided that:

“In the event it becomes reasonably necessary for either party to institute legal proceedings to procure the enforcement of any provision of this Agreement, the prevailing party shall also be entitled to a judgment for reasonable expenses, including attorney’s fees, incurred in prosecuting the action.”

Three years later, the ex-couple found themselves embroiled in litigation over the wife’s plan to relocate to Ohio with their three children.  Ultimately, the trial court granted the wife permission to move to Ohio and awarded her $20,000.00 in attorney’s fees.  Thereafter, the trial court’s decision was affirmed by the Court of Appeals, which upheld both the relocation and the trial court’s fee award.  However, the Court of Appeals declined to award the wife additional compensation for the attorney’s fees that she had incurred on appeal.

Upon review, the Tennessee Supreme Court observed that various tribunals of the Court of Appeals had “been inconsistent in their analysis of claims for attorney’s fees in cases in which the claim is based on a contractual provision in a MDA.”  One line of cases held that appellate courts have discretion to deny attorney’s fees to a prevailing party “even in the face of a controlling contractual fee provision requiring such an award.”[1]  Another line of authority held that “when a MDA fee provision mandates an award of attorney’s fees to the prevailing party, the Court of Appeals does not have discretion to deny an award of appellate attorney’s fees.”[2]  Additionally, a third line of cases “observed that an award of appellate attorney fees in Tennessee is within the court’s sound discretion,” but then went on “to award attorney’s fees on appeal solely on the basis of the parties’ MDA fee provisions without further discussion.”[3]

Clarifying this conflicting precedent, the Tennessee Supreme Court instructed with unmistakable clarity that “parties are contractually entitled to recover their reasonable attorney’s fees when they have an agreement that provides the prevailing party in a [lawsuit] is entitled to such fees.”   “In such cases,” the Court explained, trial courts “do[] not have the discretion to set aside the parties’ agreement and supplant it with its own judgment.”  The Court further instructed that “[t]he same is and must be true of our appellate courts.”  Thus, “[a]bsent fraud, mistake, or some other defect, our courts are required to interpret contracts as written.”

As a general matter, litigants in the United States must pay their own attorney’s fees regardless of whether they win or lose.  Under this so-called “American Rule”—to which Tennessee adheres—“a party in a civil action may recover attorney’s fees only if: (1) a contractual or statutory provision creates a right to recover attorney’s fees; or (2) some other recognized exception to the American Rule applies, allowing for recovery of such fees in a particular case.”[4]  “Otherwise,” as the Eberach court observed, “litigants are responsible for their own attorney’s fees.”  Of note, the general presumption that parties must bear their own legal fees places the United States at odds with the legal regimes of many European nations, which generally adhere to a “loser pays” framework.

The most common exception to the American rule is a private agreement between parties which provides that in the event of litigation, the loser must pay the winner’s attorney’s fees.  Significantly, in Eberach, the husband and wife had executed such an agreement.  Thus, the only question presented in Eberach was whether the Court of Appeals was required to enforce it.

Emphatically answering this question in the affirmative, the Court’s opinion in Eberach furthers Tennessee’s longstanding commitment to protecting the right to contract.  In Tennessee, the right to contract has constitutional origins, and it is enforceable as a fundamental right.[5]  Tennessee statutory law also provides that: “All contracts, . . . in writing and signed by the party to be bound, . . .  shall be enforced as written.”[6]  In keeping with this tradition, the Eberach court explained that “one of the bedrocks of Tennessee law is that our courts are without power to make another and different contract from the one executed by the parties themselves.”  As such, the Court mandated that the terms of the husband’s and wife’s MDA be enforced.

Having resolved that the wife was entitled to attorney’s fees for her successful litigation in the Court of Appeals, the Court then remanded the case to the trial court to “determine the appropriate amount of Wife’s reasonable attorney’s fees on the appeal.”  Additionally, applying its just-announced holding to itself, the Tennessee Supreme Court also explained that the attorney’s fee award must cover the costs of the wife’s appeal “to this Court” as well.  Thus, going forward, litigants in Tennessee—and divorcees in particular—can have renewed faith that the terms of their contracts will, in fact, be enforced as written.

Read the Court’s unanimous opinion in Eberach v. Eberach here.

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[1] See Grisham v. Grisham, No. W2010- 00618-COA-R3-CV, 2011 WL 607377, at *11 (Tenn. Ct. App. Feb. 22, 2011) (holding that the trial court erred in failing to award wife her reasonable trial court attorney’s fees pursuant to MDA fee provision, but declining to award appellate attorney’s fees pursuant to the Court of Appeals’ discretion); Brown v. Brown, No. W2005-00811-COA-R3-CV, 2006 WL 784788, at *6 (Tenn. Ct. App. Mar. 29, 2006) (affirming the trial court’s award of trial court fees under the parties’ MDA, but equitably denying wife’s request for appellate fees pursuant to the Court of Appeals’ discretion); Elliott v. Elliott, 149 S.W.3d 77, 88 (Tenn. Ct. App. 2004) (affirming the trial court’s award of fees to wife pursuant to parties’ MDA fee provision, but denying wife’s request for appellate attorney’s fees); Dulin v. Dulin, No. W2001-02969-COA-R3-CV, 2003 WL 22071454, at *8, *10 (Tenn. Ct. App. Sept. 3, 2003) (affirming trial court’s award of attorney’s fees pursuant to MDA, but equitably declining to award either party attorney’s fees incurred on appeal).

[2] See, e.g., Beem v. Beem, No. W2009-00800-COA-R3-CV, 2010 WL 1687782, at *9-10 (Tenn. Ct. App. Apr. 28, 2010) (affirming trial court’s award of fees pursuant to MDA and holding that wife was entitled to attorney’s fees on appeal pursuant to the parties’ MDA); Treadway v. Treadway, No. M2014-00898-COA-R3-CV, 2015 WL 1396652, at *7 (Tenn. Ct. App. Mar. 24, 2015) (awarding appellate attorney’s fees pursuant to the parties’ MDA); Brinton v. Brinton, No. M2009-02215-COA-R3-CV, 2010 WL 2025473, at *6 (Tenn. Ct. App. May 19, 2010) (same); Corbin v. Corbin, No. W2008-00437-COAR3-CV, 2009 WL 454134, at *7 (Tenn. Ct. App. Feb. 24, 2009) (same); Waugh v. Waugh, No. M2006-021540COA-R3-CV, 2007 WL 2200278, at *4 (Tenn. Ct. App. July 30, 2007) (same); Hogan, 1999 WL 1097983, at *4-5 (reversing trial court’s denial of attorney’s fees, and awarding attorney’s fees to Mother for trial court and appellate level proceedings pursuant to the parties’ MDA).

[3] Wilkinson v. Wilkinson, No. W2012-00509-COA-R3-CV, 2013 WL 614708, at *10 (Tenn. Ct. App. Feb. 19, 2013); (citing Archer, 907 S.W.2d at 419) (emphasis supplied)). See also Hanna v. Hanna, No. W2014-02051- COA-R3-CV, 2015 WL 1951932, at *4 (Tenn. Ct. App. Apr. 30, 2015) (stating its discretion then awarding fees on appeal based on the parties’ MDA requiring that the “court shall award reasonable attorney’s fees to the party seeking to enforce [the MDA]”) (alterations in original); Williams v. Williams, No. M2013-01910-COA-R3-CV, 2015 WL 412985, at *14 (Tenn. Ct. App. Jan. 30, 2015) (affirming the trial court’s award of fees pursuant to the parties’ MDA, stating its discretion and determining that wife was entitled to attorney’s fees on appeal pursuant to the parties’ MDA); Dodd v. Dodd, No. M2011-02147-COA-R3-CV, 2012 WL 3193339, at *6 (Tenn. Ct. App. Aug. 6, 2012) (holding that Mother was entitled to recover her trial court attorney’s fees pursuant to the parties’ MDA, but using its discretion and concluding that Mother was justified in recovering attorney’s fees).

[4] Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009) (citing Fezell, 158 S.W.3d at 359; John Kohl & Co. P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 534 (Tenn. 1998)).

[5] See Tenn. Const. art. XI, § 2; Tenn. Const. art. I, § 20.  See also ARC LifeMed, Inc. v. AMC-Tennessee, Inc., 183 S.W.3d 1, 26 (Tenn. Ct. App. 2005) (“equity respects and upholds the fundamental right of the individual to complete freedom to contract”) (quotation omitted).

[6] Tenn. Code Ann. § 47-50-112(a).