Senate Bill No. 608
(By Senators Wooton, Dittmar, Boley, Kessler, Hunter, Ball,
Plymale and Prezioso)
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[Introduced February 22, 1999;
referred to the Committee on the Judiciary.]
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A BILL to amend and reenact section twenty-seven, article five,
chapter sixty-one of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; and to further amend said
article by adding thereto a new section, designated section
twenty-seven-a, all relating to extremist and militia activity
that contravenes public justice; intimidation and retaliation
against public officials, employees, jurors and witnesses;
frivolous and fraudulent official proceedings and legal
processes; filing fraudulent legal processes; and
impersonation of a public official, employee or tribunal.
Be it enacted by the Legislature of West Virginia:
That section twenty-seven, article five, chapter sixty-one of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that said article be further amended by adding thereto a new section, designated section twenty- seven-a, all to read as follows:
ARTICLE 5. CRIMES AGAINST PUBLIC JUSTICE.
§61-5-27. Intimidation of and retaliation against
public officers
and employees, jurors and witnesses; frivolous or fraudulent
official proceedings and legal processes against
public
officials and employees; penalties.
(a) Definitions.- As used in this section:
(1) "Frivolous" means groundless, not based in law or fact,
and meant to delay, embarrass or annoy;
(2) "Fraudulent" means not legally issued or sanctioned under
the laws of this state or of the United States, including forged,
false and materially misstated;
(3) "Legal process" means an action, appeal, document,
instrument or other writing issued, filed or recorded to pursue a
claim against person or property, exercise jurisdiction, enforce a
judgement, fine a person, put a lien on property, authorize a
search and seizure, arrest a person, incarcerate a person, or
direct a person to appear, perform or refrain from performing a
specified act. "Legal process" includes, but is not limited to, a
complaint, decree, demand, indictment, injunction, judgment, lien,
motion, notice, order, petition, pleading, sentence, subpoena,
summons, warrant, or writ;
(4) "Official proceeding" means a proceeding involving a legal process or other process of a tribunal of this state or of the
United States;
(5) "Person" means an individual, group, association,
corporation, or any other entity;
(6) "Public official or employee" means an elected or
appointed official or employee a state or federal court,
commission, department, agency, political subdivision or any
government instrumentality;
(7) "Recorder" means a clerk or other employee in charge of
recording instruments in a court, commission or other tribunal of
this state or of the United States; and
(8) "Tribunal" means a court or other judicial or quasi- judicial entity, or an administrative, legislative, or executive
body, or that of a political subdivision, created or authorized
under the constitution or laws of this state or of the United
States.
(a)(b) Intimidation.- It shall be is unlawful for any a
person to use intimidation, physical force, harassment or a
fraudulent or frivolous legal process or official proceeding, or
threats of such, to threaten or to attempt to do so, against any
person, with the intent to:
(1) Impede or obstruct the a public official or employee from
performing his or her official duties administration of justice by
any judge, family law master, magistrate, juror, arbitrator, or officer or member of any court in the discharge of that person's
duties as such in an official proceeding;
(2) Impede or obstruct a juror or witness from performing his
or her official duties in an official proceeding;
(2)(3) Influence, delay, or prevent the testimony of any
person in an official proceeding; or
(3)(4) Cause or induce any a person to (A) withhold testimony,
or withhold a record, document, or other object, from an official
proceeding; (B) alter, destroy, mutilate, or conceal an a record,
document, or other object with intent to impair the object's
impairing its integrity or availability for use in an official
proceeding; (C) evade legal an official proceeding summoning that
such person to appear as a witness, or to produce a record,
document, or other object in an official proceeding; or (D) be
absent from an official proceeding to which such person has been
summoned by legal proceeding.
(b)(c) Retaliation.- It shall be is unlawful for any a
person to engage in any conduct and thereby cause bodily injury or
loss to another person or to damage the tangible property of
another person, or to threaten or to attempt to do so, with the
intent to retaliate against any person:
(1) For that person's discharge of duties as a judge, family
law master, magistrate, juror, arbitrator, or officer or member of
any court in an official proceeding; or Retaliate against a public official or employee for the performance or nonperformance of an
official duty;
(2) Retaliate against a juror or witness for performing his
or her official duties in an official proceeding;
(2)(3) For the attendance of a witness or Retaliate against
any other person for attending, testifying or participating in
party at an official proceeding, or for any testimony given or for
the production of any record, document, or other object produced by
a witness person in an official proceeding.
(c) Any person who violates the provisions of this section:
(1) In the case of an official proceeding involving any felony
charge, is guilty of a felony, and upon conviction thereof, shall
be imprisoned for a definite term of not less than one year nor
more than five years or fined not more than one thousand dollars,
or both;
(2) In the case of an official proceeding involving any
misdemeanor charge and no felony charge, or of an official
proceeding which is a civil proceeding, is guilty of a misdemeanor,
and upon conviction thereof, shall be confined in jail for not more
than one year or fined not more than five hundred dollars, or both;
or
(3) In the case of any official proceeding, where the
violation of the provisions of this section is directed at a judge,
family law master or magistrate, is guilty of a felony, and upon conviction thereof, shall be imprisoned for a definite term of not
less than one year nor more than five years or fined not more than
one thousand dollars, or both.
(d) Subsection (b) offence.- A person who is convicted of an
offense under subsection (b) is guilty of a misdemeanor and shall
be confined in jail for not more than one year or fined not more
than one thousand dollars, or both.
(d) For the purposes of this section, the term "official
proceeding" means a proceeding pending before the supreme court of
appeals or before any judge, magistrate, family law master, court,
or grand jury of the state of West Virginia, and the testimony
given or to be given, or the record, document or other object
produced or to be produced need not be admissible in evidence or
free of a claim of privilege at the time of the commission of any
unlawful act as provided in this section.
(f) Civil cause of action.- A person who violates this
section is liable in a civil action to any person harmed by the
violation for injury or loss to person or property incurred as a
result of the commission of the offense, and for reasonable attorney's fees, court costs, and other expenses incurred as a
result of prosecuting the civil action commenced under this
subsection. A civil action under this section is not the exclusive
remedy of a person who suffers injury or loss to person or property
as a result of a violation of this section.
(g) Civil sanctions.- In addition to the criminal and civil
penalties listed in this section, any frivolous or fraudulent
official proceeding or legal process brought in a tribunal of this
state in violation of this section shall be dismissed by the
tribunal, and the person may be ordered to reimburse the aggravated
person for reasonable attorney's fees, court costs, and other
expenses incurred in defending or dismissing such action.
(1) Refusal to record.- A recorder may refuse to record a
clearly fraudulent lien or other legal process against a public
official or employee or his or her property. The recorder does not
have a duty to inspect or investigate whether a lien or other legal
process is fraudulent, nor is the recorder liable for refusing to
record a lien or other legal process that the recorder reasonably
believes is in violation of this section.
(2) If a fraudulent lien or other legal process against a
public official or employee or his or her property is recorded
then:
(A) Request to release lien.- The public official or
employee may send a written request by certified mail to the person who filed the fraudulent lien or legal process, requesting the
person to release or dismiss the lien or legal process. If such
lien or legal process is not properly released or dismissed within
twenty-one days, then the person shall be presumed to have intended
to harass the public official or employee in violation of
subsection (b) of this section and shall be subject to the criminal
penalties in subsection (d) of this section and any other remedies
provided by this section; or
(B) Notice of fraudulent lien.- A government attorney on
behalf of the public official or employee may record a notice of
fraudulent lien or legal process with the recorder who accepted the
lien or legal process for filing, a copy of which shall be mailed
by the recorder to the person at the person's last known address.
Such notice shall invalidate the fraudulent lien or legal process.
No filing fee shall be charged for the filing of such notice.
(h) A person's lack of belief in the jurisdiction or
authority of this state or of the United States is no defense to
prosecution of a civil or criminal action under this section.
(k)(1) Nothing in this section prohibits or in any way limits
the lawful acts of legitimate public officials or employees.
(2) Nothing in this section prohibits or in any way limits a
person's lawful and legitimate right to freely assemble, express
opinions, or designate group affiliation.
(3) Nothing in this section prohibits or in any way limits a person's lawful and legitimate access to a tribunal of this state,
or prevents a person from instituting or responding to a lawful
action.
§61-5-27a. Fraudulent official proceedings; causing a public
employee or official to file a fraudulent legal process;
impersonation of a public official, employee or tribunal;
penalties.
(a) Definitions.- For the purpose of this section, the
following terms have the meaning ascribed to them in section
twenty-seven of this article: "frivolous", "fraudulent", "legal
process", "official proceeding", "person", "public official or
employee", "recorder", and "tribunal".
(b) Fraudulent official proceedings.- It is unlawful for a
person to knowingly engage in a fraudulent official proceeding or
legal process.
(c) Fraudulent filings.- It is unlawful for a person to
knowingly cause a public official or employee to file, record, or
deliver a fraudulent claim of indebtedness, common law lien or
other lien, financial statement, complaint, summons, judgement,
warrant or other legal process, including those issued as the
result of a fraudulent official proceeding.
(d) Fraudulent service.- It is unlawful for a person to
knowingly serve a public official or employee with a fraudulent
claim of indebtedness, common law lien or other lien, financial statement, complaint, summons, judgement, warrant or other legal
process, including those issued as the result of a fraudulent
official proceeding.
(e) Impersonation.- It is unlawful for a person to knowingly
impersonate or purport to exercise any function of a public
official, employee, tribunal or official proceeding with the intent
to induce another to submit to or rely on the fraudulent authority
of such entity.
(f) First offense.- Any person who violates a provision of
this section is guilty of a misdemeanor, and upon conviction
thereof, shall be confined in jail for not more than one year or
fined not more than one thousand dollars, or both.
(g) Second offense.- Any person who has been convicted of a
second or subsequent offense under this section is guilty of a
felony and shall be confined in the penitentiary not less than one
nor more than ten years and fined not more than one thousand
dollars.
(h) Civil cause of action.- A person who violates this
section is liable in a civil action to any person harmed by the
violation for injury or loss to person or property incurred as a
result of the commission of the offense, and for reasonable
attorney's fees, court costs, and other expenses incurred as a
result of prosecuting the civil action commenced under this
subsection. A civil action under this section is not the exclusive remedy of a person who incurs injury or loss to person or property
as a result of a violation of this section.
(I) Civil sanctions.- In addition to the criminal and civil
penalties listed in this section, a fraudulent official proceeding
or legal process brought in a tribunal in violation of this section
shall be dismissed by the tribunal, and the person may be ordered
to reimburse the aggravated person for reasonable attorney's fees,
court costs, and other expenses incurred in defending or dismissing
such action.
(1) Refusal to record.- A recorder may refuse to record a
clearly fraudulent lien or other legal process against a person or
his or her property. The recorder does not have a duty to inspect
or investigate whether a lien or other legal process is fraudulent,
nor is the recorder liable for refusing to record a lien or other
legal process that the recorder reasonably believes is in violation
of this section.
(2) If a fraudulent lien or other legal process against a
person or his or her property is recorded then:
(A) Request to release lien.- A person may send a written
request by certified mail to the person who filed the fraudulent
lien or legal process, requesting the person to release or dismiss
the lien or legal process. If such lien or legal process is not
properly released or dismissed within twenty-one days, then the
person shall be presumed to have intended to have committed a violation of this section and shall be subject to the penalties
provided for in this section; or
(B)
Petition to circuit court.-
A person may petition the
circuit court of the county where the fraudulent lien or legal
process was recorded for an order that may be granted ex parte
directing the person who filed the lien or legal process to appear
before the court and show cause why the lien or legal process
should not be released or dismissed, deemed fraudulent and
sanctioned as provided for in this section.
(I) The petition shall set forth a concise statement of the
facts and the grounds upon which relief is requested.
(ii) No filing fee shall be charged for the filing of such
petitions.
(iii) The order to show cause shall be served upon the person
who filed the lien or legal process according to Rule 4 of the
Rules of Civil Procedure and the date of the hearing set within
twenty-one days of the order.
(iv) The order to show cause shall clearly state that if the
the person who filed the lien or legal process
fails to appear at
the time and placed noticed in the order, then the lien or legal
process shall be deemed fraudulent and released or dismissed, and
the person shall be subject to the penalties provided for in this
section.
(v) If a hearing on the matter takes place and the circuit court determines that notice was properly served and that the lien
or legal process is fraudulent, then the circuit court shall
release or dismiss it, and the court may subject the person the
penalties provided for in this section.
(vi)
If the circuit court determines that the lien or legal
process is valid, then the circuit court shall issue an order
stating such and may award costs and reasonable attorney's fees to
the prevailing party.
(j) A person's lack of belief in the jurisdiction or
authority of this state or of the United States is no defense to
prosecution of a civil or criminal action under this section.
(k)(1) Nothing in this section prohibits or in any way limits
the lawful acts of a legitimate public official or employee.
(2) Nothing in this section prohibits or in any way limits a
person's lawful and legitimate right to freely assemble, express
opinions, or designate group affiliation.
(3) Nothing in this section prohibits or in any way limits a
person's lawful and legitimate access to a tribunal of this state,
or prevents a person from instituting or responding to a lawful
action.
(NOTE: This bill seeks to address the growing problem of
harassing and threatening behavior by extremist persons and militia
groups. Public officials and employees, witnesses, jurors and
other persons have been targeted for intimidation and harassment by
such groups. Frivolous suits, fraudulent liens and judgements have been filed against them and their property in an attempt to harass
and intimidate the public official or employee. The purpose of
this act is to restrain such extremist activities by providing
civil and criminal penalties for such acts, and procedures for
dismissing or removing the fraudulent liens and legal processes.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Section twenty-seven-a is new; therefore, strike-throughs and
underscoring have been omitted.