Current Status Bill Number:4821 Ratification Number:518 Act Number:385 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19980318 Primary Sponsor:Jennings All Sponsors:Jennings Drafted Document Number:DKA\4829MM.98 Companion Bill Number:1121 Date Bill Passed both Bodies:19980604 Date of Last Amendment:19980528 Governor's Action:S Date of Governor's Action:19980612 Subject:Impersonation of public employee or official in sham legal process; Courts, Crimes, Judgments, Torts, Liens
Body Date Action Description Com Leg Involved
______ ________ _______________________________________ _______ ____________
------ 19980624 Act No. A385
------ 19980612 Signed by Governor
------ 19980610 Ratified R518
House 19980604 Concurred in Senate amendment,
enrolled for ratification
Senate 19980604 Read third time, returned to House
with amendment
Senate 19980528 Read second time, ordered to
third reading with notice of
general amendments
Senate 19980528 Amended
Senate 19980528 Committee amendment adopted
Senate 19980527 Committee report: Favorable with 11 SJ
amendment
Senate 19980428 Introduced, read first time, 11 SJ
referred to Committee
House 19980423 Read third time, sent to Senate
House 19980423 Request for debate withdrawn
by Representative R. Smith
House 19980422 Amended, read second time
House 19980422 Request for debate by Representative Tripp
Cato
Vaughn
Loftis
Leach
Hamilton
Davenport
Mason
R. Smith
Whatley
Knotts
House 19980422 Amended
House 19980416 Committee report: Favorable with 25 HJ
amendment
House 19980318 Introduced, read first time, 25 HJ
referred to Committee
View additional legislative information at the LPITS web site.
(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.