SB 549 — Creating felony offense of intimidation or harassment of certain persons that causes injury or loss to person or property

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Red = new code to be enacted WEST virginia legislature regular session IntroducedCommittee Substitute for Senate Bill 549 By Senators Jeffries, Baldwin, Beach, Drennan, Facemire, Gaunch, Ojeda, Plymale, Prezioso, Romano, Smith, Stollings, Swope, Trump, and Cline [Introduced[Originating Februaryin 15,the 2018;Committee on the Judiciary;

ReferredReported toon theFebruary Committee20, on2018] the  Judiciary] A BILL to amend and reenact §61-5-27 of the Code of West Virginia, 1931, as amended, relating to creatingequalizing athe newcriminal felonypenalties offensefor ofintimidating intimidationand orretaliating harassmentagainst of a public officer,officers juror,and oremployees, witnessjurors, whereand thewitnesses; conduct causes injury or loss to person or property;

andincreasing settingpenalty penalties for theintimidation offense.of such persons to a felony;

and establishing criminal penalties.

Intimidation of and retaliation against public officers and employees, jurorsjurors, and witnesses;

--— As 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, falsefalse, and materially misstated;

(2) “Legal process” means an action, appeal, document instrumentinstrument, or other writing issued, filedfiled, 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, performperform, 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, warrantwarrant, or writ;

(4) “Person” means an individual, group, association, corporationcorporation, 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 subdivisionsubdivision, or any governmental instrumentality;

(6) “Recorder” means a clerk or other employee in charge of recording instruments in a court, commissioncommission, 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, legislativelegislative, 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.

--— It It is unlawful for a person to use intimidation, physical force, harassmentharassment, or a fraudulent legal process or official proceeding, or to threaten to do so where such threat is directed at inciting or producing imminent lawless action of a violent nature that could cause bodily harm and is likely to incite or produce such actionaction, or to attempt to do so, with the intent to:

(3) Influence, delaydelay, or prevent the testimony of any person in an official proceeding;

(A) Withhold testimony,testimony or withhold a record, documentdocument, or other object from an official proceeding;

(B) alter, destroy, mutilatemutilate, or conceal a record, documentdocument, 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, documentdocument, or other object for an official proceeding;

--— It is unlawful for a person to cause injury or loss to person or property, or to threaten to do so where such threat is directed at inciting or producing imminent lawless action of a violent nature that could cause bodily harm and is likely to incite or produce such action or to attempt to do so, with the intent to:

or (3) Retaliate against any other person for attending, testifyingtestifying, or participating in an official proceeding, or for the production of any record, documentdocument, or other object produced by a person in an official proceeding.

---- A A person who is convicted of an offense under subsection (b) is guilty of a misdemeanor and,and shall be confined in jail for not more than one year or fined not more than $1,000, or bothboth. confined and fined.

However,(e) ifSubsection the(c) conductor givingsubsequent rise to a conviction of an offense under(d) subsectionPenalty. (b) of this section results in injury or loss to person or property, then the person is guilty of a felony and, upon conviction, shall be imprisoned in a correctional facility not less than one nor more than 10 years or fined not more than $2,000 or both fined and imprisoned.

(e)— A Subsectionperson convicted of an offense under §61-5-27(b) or §61-5-27(c) of this code subsections (c) or subsequenta offense.second offense under subsection (b) is guilty of a felony and shall be confined in a correctional facility not less than one nor more than 10 years, or fined not more than $2,000, or both.

--(f) A(e) personCivil convictedcause of anaction. 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 imprisoned in a correctional facility not less than one nor more than 10 years or fined not more than $2,000, or both fined and imprisoned.

(f)— A Civilperson causewho 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 action.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) A(f) personCivil whosanctions. 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)— In Civiladdition sanctions.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 In addition to therecord. 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)— RefusalA recorder may refuse to record.record a clearly fraudulent lien or other legal process against a public official or employee or his or her property.

-- 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.

(A)(A) Request Request to release lien.

--— The 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 21 days, then it shall be inferred that the person intended to harass the public official or employee in violation of subsection§61-5-27(b) (b) of this sectioncode and shall be subject to the criminal penalties in subsection§61-5-27(d) (d) of this sectioncode and any other remedies provided in this section;

--— A 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.

(h) (g) A person'sperson’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.

(h) (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'sperson’s lawful and legitimate right to freely assemble, express opinionsopinions, or designate group affiliation.

(3) Nothing in this section prohibits or in any way limits a person'sperson’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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