COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 608
(By Senators Wooton, Dittmar, Boley, Kessler, Hunter, Ball, Plymale and Prezioso)
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[Originating in the Committee on the Judiciary;
reported February 26, 1999.]
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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 and serving fraudulent legal processes; impersonating public officials, employees or tribunals; and civil and criminal penalties.

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 governmental 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.
(b) Intimidation; Harassment. -- It is unlawful for a person to use intimidation, physical force, harassment or a fraudulent or frivolous legal process or official proceeding, or to threaten or attempt to do so, with the intent to:
(1) Impede or obstruct a public official or employee from performing his or her official duties;
(2) Impede or obstruct a juror or witness from performing his or her official duties in an official proceeding;
(3) Influence, delay or prevent the testimony of any person in an official proceeding; or
(4) Cause or induce a person to: (A) withhold testimony, or withhold a record, document or other object from an official proceeding; (B) alter, destroy, mutilate or conceal a record, document or other object impairing its integrity or availability for use in an official proceeding; (C) evade an official proceeding summoning a person to appear as a witness or produce a record, document or other object for an official proceeding; or (D) be absent from an official proceeding to which such person has been summoned.
(c) Retaliation. -- It is unlawful for a person to cause injury or loss to person or property, or to threaten or attempt to do so, with the intent to:
(1) 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;
(3) Retaliate against any other person for attending, testifying or participating in an official proceeding, or for the production of any record, document or other object produced by a person in an official proceeding.
(d) Subsection (b) offense. -- 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.
(e) Subsection (c) or subsequent offense. -- A person convicted of a offense under subsection (c) or a second offense under subsection (b) is guilty of a felony and shall be confined in the penitentiary not less than one nor more than ten years or fined not more than two thousand dollars, or both.
(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 a civil action commenced under this subsection, which 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 set forth 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 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 it shall be inferred that the person 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 for in 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. Such notice shall invalidate the fraudulent lien or legal process and cause it to be removed from the records. No filing fee shall be charged for the filing of the 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.
(i)(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 without legal authority to do so and with the intent to induce a person to submit to or rely on the fraudulent authority of the person.
(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 a county or regional jail for not more than one year or fined not more than one thousand dollars, or both.
(g) Second offense. -- Any person 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 or fined not more than two thousand dollars, or both.
(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, which 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.
(i) Civil sanctions. -- In addition to the criminal and civil penalties set forth 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 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 the person penalized 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 place noticed in the order, then the lien or legal process shall be released or dismissed, deemed fraudulent and the person shall be subject to the penalties provided for in this section.
(v) If a hearing takes place or if, on its own motion, the circuit court determines that the lien or legal process is fraudulent, then the circuit court shall release or dismiss it and subject the person to 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 reasonable attorney's fees, court costs and other expenses 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.
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(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 public officials, employees and others. 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 from court dockets and recorder's offices.

Section twenty-seven is substantially rewritten; therefore, strike-throughs and underscoring have been omitted.

Section twenty-seven-a is new; therefore, strike-throughs and underscoring have been omitted.)