Once Upon a Time, Episode 5

This post was inspired by some questions in the comments on the last mailbag post.  There was some disagreement in the comments regarding the facts, but after reviewing the episode I think it’s arguable that each party was threatening the other, so we’ll consider it from both angles.  Now, on to the questions (and the spoilers).

I. The Setup

For those who haven’t or don’t plan to see the episode (it’s available on Hulu), the facts are pretty straightforward.  The mayor’s son is being treated by a psychiatrist, who at first generally entertains the son’s theory regarding the town being cursed, apparently as a window into the child’s psyche.  The mayor wants the psychiatrist to disabuse him of this notion, but when he does so the child runs away.

After the psychiatrist rescues the child, he decides to go back to his earlier method of treatment, which the mayor is unhappy with.  The mayor threatens to have him fired.  The psychiatrist counters that the mayor may soon find herself in a custody dispute regarding the child and that he will likely be called to testify regarding her fitness as a parent.  The implication is that if she interferes with his treatment or has him fired then his testimony will not be positive, though it is not entirely clear whether his testimony would be honest or changed out of spite.  The episode ends with the psychiatrist apparently able to return to his old methods.

II. Blackmail

The first question is: “Is this blackmail? Does the fact that there is no hearing planned yet change the answer?”

Blackmail is typically synonymous with extortion, which is the term used in most criminal codes.  Maine defines theft by extortion thus:

“A person is guilty of theft if the person obtains or exercises control over the property of another as a result of extortion and with intent to deprive the other person of the property.”  17 A.M.R.S.A. § 355(1).

In a sense this answers the question regardless of who was doing the threatening.  Neither the mayor nor the psychiatrist were trying to obtain or exercise control over the other’s property, so neither could be guilty of extortion.  If the mayor had been trying to get free treatment that might qualify as theft of services under § 357, but simply trying to control the method of treatment likely doesn’t qualify as a kind of theft.

That doesn’t mean the psychiatrist is necessarily off the hook, however.  He could be guilty of improper influence under § 603:

1. A person is guilty of improper influence if he:
A. Threatens any harm to a public servant, party official or voter with the purpose of influencing his action, decision, opinion, recommendation, nomination, vote or other exercise of discretion;

2. “Harm” means any disadvantage or injury, pecuniary or otherwise, including disadvantage or injury to any other person or entity in whose welfare the public servant, party official or voter is interested.

The mayor describes the psychiatrist as “an employee” and suggests that she has the power to have him fired, which would be an “action, decision, recommendation, or other exercise of discretion.”  If the psychiatrist is implying that he would alter his expert testimony solely in order to disadvantage the mayor, that could qualify as improper influence.  If, on the other hand, he’s simply stating that the mayor’s interference in this treatment plan would tend to indicate that she is not a fit parent and his testimony would reflect that, then that would not be improper.

The fact that there’s no hearing planned wouldn’t change the answer, since the crime of improper influence is complete the moment the harm is threatened.  Whether the harm ever comes to fruition or even ever could doesn’t matter.

III. Perjury

The next question is related to the issue of improper influence: “if he gives the court different testimony solely because he has been fired by one of the parties, is he committing perjury?”

For the answer we have to look to the definition of perjury in Maine, found in § 451.

“1. A person is guilty of perjury if he makes:
A. In any official proceeding, a false material statement under oath or affirmation, or swears or affirms the truth of a material statement previously made, and he does not believe the statement to be true”

A child custody hearing is certainly an official proceeding, the expert’s opinion is a material statement, and he would be under oath, so the issue is whether he would believe the statement to be true or not.  As with improper influence, it comes down to whether the psychiatrist honestly regards the mayor as an unfit parent because of her interference in the child’s treatment and threats to have the psychiatrist fired.  If he does, then it wouldn’t be perjury.  If, on the other hand, he thinks she is actually a fit parent but testifies otherwise out of spite or what-have-you, then it would be perjury.

Of course, good luck to the prosecutor on that one.  Absent a smoking gun memo it would be very difficult to prove that the psychiatrist was lying.

IV. Threatening to Fire Someone

The last question is “Is the threat to get him fired itself legal? Does it matter that she’s not his direct employer, so she’d be getting him fired by using influence?”

I’ll admit that her threat is more than a bit sketchy, at least morally-speaking, but it’s not necessarily illegal, particularly if he is an at-will employee.  It’s possible that the threat violates some Maine law regarding the firing of public employees.  It’s also possible that the psychiatrist is a member of a municipal employees’ union or otherwise has an employment contract (possibly an implied one) that would prevent him from being fired except for good cause.    If the mayor had him fired knowing that he could not be fired legitimately, that could support a charge of official oppression:

“1. A person is guilty of official oppression if, being a public servant and acting with the intention to benefit himself or another or to harm another, he knowingly commits an unauthorized act which purports to be an act of his office”  § 608.

The psychiatrist would also have a civil wrongful termination claim in that case, of course.

V. Conclusion

Once Upon a Time continues to be a pretty good show, and we’ll continue to keep an eye on it for legal issues!

11 Responses to Once Upon a Time, Episode 5

  1. FYI – that’s not what “right to work” means — that’s “at will” vs. “just cause.” “Right to Work” refers to a small clause within in collective bargaining agreement regarding union security & agency fees.

  2. On IV. If the mayor gets the psychiatrist fired, wouldn’t the psychiatrist have a tortuous interference claim? And if that is the case, is there a claim for threatening a tort or perhaps just this specific tort?

    • Maybe, but it’s hard to say given the facts we have. Tortious interference is based on the defendant procuring an intentional breach of contract (i.e. the breach must actually occur). If the psychiatrist doesn’t have an employment contract then there can’t be a breach. Even if he does, his termination may still not be a breach (e.g. the contract could still allow him to be fired at will). But if he has a contract, the contract requires good cause for termination, there wasn’t good cause, and he was terminated, then yes the mayor’s actions could be grounds for a tortious interference claim. That said, she might have some kind of immunity at least from personal liability.

      As to your second question, no, I don’t think there’s a general claim for threatening a tort or threatening tortious interference in particular. There are particular torts such that threatening someone with them is a crime or a tort (e.g. threatening to hit someone), but I don’t think there’s a general case. There’s no equivalent to attempt in torts, for example. In torts, unlike the criminal law, no harm, no foul; there must be at least some minimal damages, even if it’s just an injury to a right (e.g. trespass to land is still a tort even if not a single blade of grass is damaged).

      • I thought (and IANAL so feel free to educate me) that at least in some jurisdiction, for the purposes of tortious interference, at-will employment is a contract which is considered in force until a party ends it. And so, while the party who ends an at-will contract cannot be liable for doing so, the third party who induces the end of the contract is himself liable for tortious interference. If I am wrong, somebody who knows what they are talking about should correct the Wikipedia entry.

      • I strongly doubt that would amount to tortious interference. Tortious interference requires procuring a breach. Even if there were some minimal contract in the at-will employment case, a manager (i.e. the mayor) asking for an employee to be fired isn’t a breach but rather a termination of the alleged contract.

        Consider the ramifications of that rule: a company could never fire an employee as a result of a customer complaint without the customer being liable for tortious interference, for example.

  3. I was actually more interested in the question of a custody hearing; assuming Henry was adopted as an infant and was born in Maine, Henry’s birth mother’s consent for adoption became irrevocable after 72 hours, and the state would have finalized the adoption approximately 18 months later. I don’t know about Maine specifically, but in general, irrevocable consents are only reversible in cases of fraud or duress, and while the adoptive mother in the show is actually an evil witch and the adoption agent was Rumplestiltskin, we have no textual evidence that any fraud or duress happened. In the event that the witch is seen as unfit by the state, Henry would be treated as any other child in the foster care system, and the original birth mother would not have any special privileges regarding custody.

  4. In the statement: “Of course, good luck to the prosecutor on that one. Absent a smoking gun memo it would be very difficult to prove that the prosecutor was lying.” I believe you meant to say that the psychiatrist was lying. The prosecutor has no interest in proving that he/she has ever lied.

  5. I finally caught up on Once Upon a TIme last night, and I was thinking: if we assume that Jiminy is correct that there will be a custody hearing, and if Jiminy is likely to have the truthful opinion that the mayor is unfit/less fit than Emma, wouldn’t it actually benefit her to give him a grudge against her by firing him, to then use it to attack his credibility? Further, if she got Henry a therapist more in line with her own opinions, that therapist could eventually testify at such a hearing that 1: the mayor is a perfectly fit parent doing the best for her child, and 2: Jiminy’s methods of treatment were quackery and he has no idea what he’s talking about.

  6. I suspect Dr. Hopper is the only therapist in town (because after all, who are the other psychological counsellors in fairy tales?), so terminating his therapy while simultaneously holding that her kid is delusional isn’t a good argument for her fitness as a mother. She doesn’t have the option of taking the kid to an out of town therapist. Besides although he didn’t explicitly threaten it, he has the nuclear option, confessing that he gave Emma confidential therapy documentation under instruction from the mayor.

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