H. B. 2188
(By Delegate L. Smith)
[Introduced February 14, 2001; referred to the
Committee on the Judiciary.]
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, relating to providing
that the use of intimidation, force or threats against
judicial officers, jurors and witnesses in any criminal or
civil proceeding is a felony.
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 be amended and reenacted 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;
fraudulent official proceedings and legal
processes against public officials and employees;
penalties.
(a) Definitions. -- As used in this section:
(1) "Fraudulent" means not legally issued or sanctioned
under the laws of this state or of the United States, including
forged, false and materially misstated;
(2) "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 judgment, 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;
(3) "Official proceeding" means a proceeding involving a
legal process or other process of a tribunal of this state or of
the United States;
(4) "Person" means an individual, group, association,
corporation or any other entity;
(5) "Public official or employee" means an elected or
appointed official or employee, of a state or federal court,
commission, department, agency, political subdivision or any
governmental instrumentality;
(6) "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
(7) "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
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 felony
and shall be confined in jail for not more than one year or fined
not more than one thousand dollars, or both fined not more than
one thousand dollars, or imprisoned in a state correctional
facility not less than one year nor more than five years, or both
fined and imprisoned.
(e) Subsection (c) or subsequent offense. -- A person
convicted of an offense under subsection (c) or a second offense
under subsection (b) is guilty of a felony and shall be confined
in the penitentiary state correctional facility not less than one
nor more than ten years or fined not more than two thousand
dollars, or both fined and imprisoned.
(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 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.
NOTE: The purpose of this bill is to provide that the use of
intimidation, force or threats against judicial officers, jurors
and witnesses in any criminal or civil proceeding is a felony.
Current law provides that a first offense is a misdemeanor
instead of a felony.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.