H. B. 2746
(By Delegates Azinger, Beane, R.M. Thompson,
Stalnaker, Wills and Amores)
[Introduced March 5, 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 the
offense of intimidating a judge or magistrate is also
applicable to times when the judge or magistrate are off duty.
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 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: Provided, That intimidation
or harassment of a supreme court or circuit court judge or county
magistrate shall be unlawful regardless of whether it is
perpetrated against the judge or magistrate while he or she is on
or off duty;
(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) of this section 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 an offense under subsection (c) of this section or a
second offense under subsection (b) of this section 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.
(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 the 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
the 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 The 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 the offense of
intimidating a judge or magistrate is also applicable to times when
the judge or magistrate are off duty.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.