S 1121 General Bill, By Martin

Similar(H 4821)
 A BILL TO AMEND CHAPTER 17, TITLE 16, CODE OF LAWS OF SOUTH CAROLINA, 1976,
 RELATING TO CRIMINAL OFFENSES AGAINST PUBLIC POLICY, BY ADDING SECTION
 16-17-735 SO AS TO PROHIBIT THE IMPERSONATION OF A STATE OR LOCAL OFFICIAL OR
 EMPLOYEE IN CONNECTION WITH A SHAM LEGAL PROCESS AND TO PROVIDE PENALTIES; TO
 AMEND CHAPTER 9, TITLE 30, RELATING TO INDEXING AND FILING OF WRITTEN
 INSTRUMENTS, BY ADDING SECTION 30-9-35 SO AS TO PROHIBIT THE FILING OF A
 JUDGMENT OR OTHER LIEN AGAINST A FEDERAL, STATE, OR LOCAL OFFICIAL OR EMPLOYEE
 WITHOUT A COURT OR ADMINISTRATIVE ORDER OR OTHER PROPER AUTHORIZATION, TO
 PROVIDE A PROCEDURE FOR REMOVING AN INVALID LIEN, AND TO PROVIDE FOR CIVIL
 REMEDIES FOR A PERSON INJURED BY THE FILING OF AN INVALID LIEN; AND TO AMEND
 SECTION 30-9-30, AS AMENDED, RELATING TO FILING OF WRITTEN INSTRUMENTS, SO AS
 TO ALLOW A CLERK OF COURT OR REGISTER OF DEEDS TO REFUSE TO ACCEPT A DOCUMENT
 FOR FILING IF HE REASONABLY BELIEVES IT IS FALSE OR FRAUDULENT OR IS A SHAM
 LEGAL PROCESS.

   03/17/98  Senate Introduced and read first time SJ-8
   03/17/98  Senate Referred to Committee on Judiciary SJ-8

A BILL

TO AMEND CHAPTER 17, TITLE 16, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO CRIMINAL OFFENSES AGAINST PUBLIC POLICY, BY ADDING SECTION 16-17-735 SO AS TO PROHIBIT THE IMPERSONATION OF A STATE OR LOCAL OFFICIAL OR EMPLOYEE IN CONNECTION WITH A SHAM LEGAL PROCESS AND TO PROVIDE PENALTIES; TO AMEND CHAPTER 9, TITLE 30, RELATING TO INDEXING AND FILING OF WRITTEN INSTRUMENTS, BY ADDING SECTION 30-9-35 SO AS TO PROHIBIT THE FILING OF A JUDGMENT OR OTHER LIEN AGAINST A FEDERAL, STATE, OR LOCAL OFFICIAL OR EMPLOYEE WITHOUT A COURT OR ADMINISTRATIVE ORDER OR OTHER PROPER AUTHORIZATION, TO PROVIDE A PROCEDURE FOR REMOVING AN INVALID LIEN, AND TO PROVIDE FOR CIVIL REMEDIES FOR A PERSON INJURED BY THE FILING OF AN INVALID LIEN; AND TO AMEND SECTION 30-9-30, AS AMENDED, RELATING TO FILING OF WRITTEN INSTRUMENTS, SO AS TO ALLOW A CLERK OF COURT OR REGISTER OF DEEDS TO REFUSE TO ACCEPT A DOCUMENT FOR FILING IF HE REASONABLY BELIEVES IT IS FALSE OR FRAUDULENT OR IS A SHAM LEGAL PROCESS.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Chapter 17, Title 16 of the 1976 Code is amended by adding:

"Section 16-17-735. (A) It is unlawful for a person to impersonate a state or local official or employee or a law enforcement officer in connection with a sham legal process. A person violating the provisions of the subsection is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred dollars or imprisoned not more than one year, or both.

(B) It is unlawful for a person falsely to assert authority of state law in connection with a sham legal process. A person violating the provisions of this subsection is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred dollars or imprisoned not more than one year, or both.

(C) It is unlawful for a person to act without authority under state law as a Supreme Court Justice, a court of appeals judge, a circuit court judge, a master-in-equity, a family court judge, a probate court judge, a magistrate, a clerk of court or register of deeds, a notary public, or other authorized official in determining a controversy, adjudicating the rights or interests of others, or signing a document as though authorized by state law. A person violating the provisions of this subsection is guilty of a misdemeanor and, upon conviction, must be fined not more that five hundred dollars or imprisoned not more than one year, or both.

(D) It is unlawful for a person falsely to assert authority of law, in an attempt to intimidate or hinder a state or local official or employee or law enforcement officer in the discharge of official duties, by means of threats, harassment, physical abuse, or use of sham legal process. A person violating this subsection is guilty of a felony and, upon conviction, must be fined not more than ten thousand dollars or imprisoned not less than one year and not more than three years, or both.

(E) For purposes of this section:

(1) 'Law enforcement officer' is as defined in Section 16-9-310.

(2) 'State or local official or employee' means an appointed or elected official or an employee of a state agency, board, commission, department, in a branch of state government, institution of higher education, other school district, political subdivision, or other unit of government of this State.

(3) 'Sham legal process' means the issuance, display, delivery, distribution, reliance on as lawful authority, or other use of an instrument that is not lawfully issued, whether or not the instrument is produced for inspection or actually exists, which purports to:

(a) be a summons, subpoena, judgment, lien, arrest warrant, search warrant, or other order of a court of this State, a law enforcement officer, or a legislative, executive, or administrative agency established by state law;

(b) assert jurisdiction or authority over or determine or adjudicate the legal or equitable status, rights, duties, powers, or privileges of a person or property; or

(c) require or authorize the search, seizure, indictment, arrest, trial, or sentencing of a person or property.

(4) 'Lawfully issued' means adopted, issued, or rendered in accordance with the applicable statutes, rules, regulations, and ordinances of the United States, a state, an agency or a political subdivision of a state."

SECTION 2. Chapter 9, Title 30 of the 1976 Code is amended by adding:

"Section 30-9-35. (A) A clerk of court or register of deeds may not accept for filing a judgment or other lien against a present or former federal, state, or local official or employee unless the judgment or other lien is issued by a court of competent jurisdiction or appropriate governmental entity, or the judgment or other lien is otherwise authorized by statute.

(B)(1) If a judgment or other lien is accepted for filing against an individual in contravention of subsection (A), the clerk of court or register of deeds shall accept for filing a notice of invalid judgment or lien. The notice must be signed by the:

(a) assistant United States attorney or other attorney representing the federal agency of which the individual is an official or employee;

(b) assistant attorney general or other attorney representing the state agency, board, commission, department, or institution of higher education of which the individual is an employee or official;

(c) attorney representing the political subdivision or unit of local government of the State which the official or employee serves if the individual is a local official or employee.

(2) Within thirty days of filing of a notice of invalid judgment or lien, a copy of the notice of invalid judgment or lien must be mailed by the appropriate attorney to the person shown as the judgment or lien creditor or obligee at the return address provided in the judgment or lien. If no name or return address is provided in the judgment or lien, no notice must be given.

(3) An attorney who files a notice of invalid judgment or lien pursuant to this subsection is not liable for damages as a result of filing the notice of invalid judgment or lien.

(4) In addition to the procedure provided in this subsection, the clerk of court or register of deeds may remove a judgment or other lien pursuant to Section 30-9-30.

(C)(1) The filing of a notice of invalid judgment or lien voids the judgment or other lien retroactively to the date it was filed.

(2) A person who challenges the claim of invalid judgment or lien must commence suit in a state court of competent jurisdiction within thirty days after the date of mailing of the notice of invalid judgment or lien or the filing of the notice is binding and conclusive as to the invalidity of the judgment or other lien.

(D) A person who is injured by the filing of a judgment or other lien in contravention of subsection (A), has the following civil remedies against the person who filed the judgment or other lien:

(1) actual damages;

(2) punitive damages;

(3) costs; and

(4) reasonable attorney's fees.

(E) For purposes of this section:

(1) 'State or local official or employee' means an appointed or elected official or an employee of a state agency, board, commission, department, in a branch of state government, institution of higher education, other school district, political subdivision, or other unit of government of this State.

(2) 'Federal official or employee' means an employee or official of the United States government or a federal agency as defined for purposes of the Federal Tort Claims Act, 28 U.S.C. Section 2671 (1988)."

SECTION 3. Section 30-9-30 of the 1976 Code, as last amended by Act 34 of 1997, is further amended to read:

"Section 30-9-30. (A) Except as otherwise provided by statute, each clerk of court and register of deeds in this State shall keep a record, in his the office in which he shall file files all conveyances, mortgages, liens, contracts, and papers relating to real and personal property required by statute to be kept by him, by entering in the record the names of the grantor and grantee, mortgagor and mortgagee, obligor and obligee, or other parties to the written instruments, date of filing, and nature of the instrument immediately upon its lodgment for record. The filing is notice to all persons, sufficient to put them upon inquiry of the purport of the filed instrument so filed and the property affected by the instrument.

(B)(1) If a person presents a conveyance, mortgage, judgment, lien, contract, or other document to the clerk of court or the register of deeds for filing or recording, the clerk of court or the register of deeds may refuse to accept the document for filing or recording if he reasonably believes that the conveyance, mortgage, judgment. lien, contract, or other document is materially false or fraudulent or is a sham legal process. This subsection does not create a duty upon the clerk of court or the register of deeds to inspect, evaluate, or investigate a written document that is presented for filing or recording.

(2) If the clerk of court or register of deeds reasonably believes that a conveyance, mortgage, judgment, lien, contract, or other document is materially false or fraudulent, is a sham legal process, or was not issued by a court of competent jurisdiction or appropriate government entity, the clerk of court or register of deeds may remove the conveyance, mortgage, judgment, lien, contract, or other document from the public records after mailing notice to the person on whose behalf the document was filed at the return address provided in the document. If no return address was provided on the document, no notice must be given.

(3) If a clerk of court or a register of deeds improperly refuses to accept for filing or recording or improperly removes from the public records, a conveyance, mortgage, judgment, lien, contract, or other document pursuant to this section, the clerk of court or register of deeds is not liable for damages, personally or in his official capacity, for the improper refusal or removal.

(4) For purposes of this subsection:

(a) 'Sham legal process' means a document that is not issued lawfully and that purports to be a judgment, lien, or order of a court or appropriate government entity, or otherwise purports to asset jurisdiction over or determine the legal or equitable status, rights, duties, powers, or privileges of a person or property.

(b) 'Lawfully issued' means adopted, issued, or rendered in accordance with applicable statutes, rules, regulations, and ordinances of the United States, a state, or an agency or a political subdivision of a state."

SECTION 4. This act takes effect upon approval by the Governor.