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H*4821 Session 112 (1997-1998)
H*4821(Rat #0518, Act #0385 of 1998) General Bill, By Jennings
Similar(S 1121)
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 INCLUDING COURT
COSTS AND ATTORNEY 'S FEES; 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, TO REQUIRE A RETURN ADDRESS
ON EACH DOCUMENT FILED, AND TO ALLOW TEN BUSINESS DAYS FOR THE DOCUMENT TO BE
AFFIRMED BY AFFIDAVIT AS GENUINE BEFORE REMOVAL FROM THE PUBLIC RECORDS OR
BEFORE FINAL REFUSAL TO FILE; AND TO AMEND CHAPTER 75, TITLE 15, RELATING TO
CIVIL ACTIONS FOR WRONGFUL CONDUCT BY ADDING SECTION 15-75-60, SO AS TO
PROVIDE FOR CIVIL REMEDIES FOR INJURY BY A SHAM LEGAL PROCESS, TO INCLUDE
COURT COSTS AND REASONABLE  ATTORNEY'S FEES.-AMENDED TITLE
03/18/98 House Introduced and read first time HJ-18
03/18/98 House Referred to Committee on Judiciary HJ-19
04/16/98 House Committee report: Favorable with amendment
Judiciary HJ-3
04/22/98 House Amended HJ-14
04/22/98 House Requests for debate-Rep(s). Tripp, Loftis, Leach,
Cato, Vaughn, Hamilton, Davenport, Mason, R.
Smith, Whatley & Knotts HJ-19
04/22/98 House Read second time HJ-45
04/22/98 House Roll call Yeas-106 Nays-1 HJ-47
04/23/98 House Requests for debate removed-Rep(s). R. Smith HJ-22
04/23/98 House Read third time and sent to Senate HJ-23
04/28/98 Senate Introduced and read first time SJ-8
04/28/98 Senate Referred to Committee on Judiciary SJ-8
05/27/98 Senate Committee report: Favorable with amendment
Judiciary SJ-18
05/28/98 Senate Amended SJ-52
05/28/98 Senate Read second time SJ-52
05/28/98 Senate Ordered to third reading with notice of
amendments SJ-52
06/04/98 Senate Read third time and returned to House with
amendments SJ-31
06/04/98 House Concurred in Senate amendment and enrolled HJ-107
06/10/98 Ratified R 518
06/12/98 Signed By Governor
06/12/98 Effective date 06/12/98
06/18/98 Copies available
06/30/98 Act No. 385
(A385, R518, H4821)
AN ACT 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,
INCLUDING COURT COSTS AND ATTORNEY'S FEES; 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, TO
REQUIRE A RETURN ADDRESS ON EACH DOCUMENT FILED,
AND TO ALLOW TEN BUSINESS DAYS FOR THE DOCUMENT TO
BE AFFIRMED BY AFFIDAVIT AS GENUINE BEFORE REMOVAL
FROM THE PUBLIC RECORDS OR BEFORE FINAL REFUSAL TO
FILE; AND TO AMEND CHAPTER 75, TITLE 15, RELATING TO
CIVIL ACTIONS FOR WRONGFUL CONDUCT, BY ADDING
SECTION 15-75-60, SO AS TO PROVIDE FOR CIVIL REMEDIES
FOR INJURY BY A SHAM LEGAL PROCESS, TO INCLUDE COURT
COSTS AND REASONABLE ATTORNEY'S FEES.
Be it enacted by the General Assembly of the State of South Carolina:
Impersonation of official; sham legal process
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 acting or purporting to
act in an official capacity or taking advantage of such actual or purported
capacity commits a misdemeanor if, knowing that his conduct is illegal,
he:
(1) subjects another to arrest, detention, search, seizure,
mistreatment, dispossession, assessment, lien, or other infringement of
personal or property rights; or
(2) denies or impedes another in the exercise or enjoyment of any
right, privilege, power, or immunity.
A person violating the provisions of this subsection is guilty of a
misdemeanor and, upon conviction, must be fined not more than two
thousand 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 two thousand 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 commissioned 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 than two thousand 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 a 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.
Removing invalid judgment or other lien
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; or
(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)."
Refusal to file false document; removal of false filing
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 the
office in which he files all conveyances, mortgages, judgments, 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 and the property affected by the instrument. A return
address must be provided on each conveyance, mortgage, judgment, lien,
contract, or other document submitted for filing with the clerk of court or
register of deeds. A document may be refused for filing if it lacks a
complete return address.
(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.
However, if the person presenting the conveyance, mortgage, judgment,
lien, contract, or other document to the clerk of court or the register of
deeds resubmits the document within ten business days after the refusal
with a sworn, written affidavit asserting the validity of the document and
establishing the identity, mailing address, and phone number of all parties
connected to the document, the clerk of court or register of deeds must
accept the document for filing.
(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 and allowing at least ten
business days for a response through the form of a sworn, written affidavit
asserting the validity of the document and establishing the identity,
mailing address, and phone number of all parties connected to the
document. If a sworn, written affidavit is received by the clerk of court
or register of deeds from the person on whose behalf the document was
filed, the conveyance, mortgage, judgment, lien, contract, or other
document must be accepted for filing.
(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 assert 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."
Civil remedies for sham legal process
SECTION 4. Chapter 75, Title 15 of the 1976 Code is amended by
adding:
"Section 15-75-60. A person who is injured by a sham legal process
involving a violation of Section 16-17-735 has the following civil
remedies against the person who committed the violation or who caused
the violation to be committed:
(1) actual damages;
(2) punitive damages;
(3) costs; and
(4) reasonable attorney's fees. The amount of the recovery for the
plaintiff is not determinative of the attorney's fee."
Time effective
SECTION 5. This act takes effect upon approval by the Governor.
Approved the 12th day of June, 1998. |
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