additional commentary by Rep. Timothy Horrigan; January 14, 2014 & March 8, 2014
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HB 1565-FN – AS INTRODUCED 2014 SESSION 14-2356 04/05 HOUSE BILL 1565-FN AN ACT establishing the crime of filing a false lien or encumbrance against a public servant. SPONSORS: Rep. Gidge, Hills 33; Rep. Horrigan, Straf 6 COMMITTEE: Criminal Justice and Public Safety ANALYSIS This bill establishes a criminal offense for filing a false lien or encumbrance against a public servant.
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Explanation: Matter added to current law appears in bold italics. Matter
removed from current law appears [ Matter which is either (a) all new or (b) repealed and reenacted appears in regular type. 14-2356 04/05 STATE OF NEW HAMPSHIRE In the Year of Our Lord Two Thousand Fourteen AN ACT establishing the crime of filing a false lien or encumbrance against a public servant. Be it Enacted by the Senate and House of Representatives in General Court convened: 1 New Section; False Liens or Encumbrance Against Public Servants. Amend RSA 638 by inserting after section 15-a the following new section: 638:15-b False Liens or Encumbrances Against Public Servants. I. Any person who files a lien or encumbrance in a public record or private record that is generally available to the public against the real or personal property of a public servant, as defined in RSA 640:2, II(a), based on the performance of such public servant's official duties, knowing or having reason to know that such lien or encumbrance is false or contains a materially false, fictitious, or fraudulent statement or representation shall be guilty of a class A misdemeanor for a first or second offense, and a class B felony for a third or subsequent offense. II. Any person who violates the provisions of paragraph I shall, upon conviction, be sentenced to a term of imprisonment of not less than one nor more than 10 years, a fine not to exceed $10,000, or both. 2 Effective Date. This act shall take effect January 1, 2015.
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LBAO HB 1565-FN - FISCAL NOTE AN ACT establishing the crime of filing a false lien or encumbrance against a public servant. FISCAL IMPACT: The Judicial Branch, Department of Justice, Department of Corrections, Judicial Council, and New Hampshire Association of Counties state this bill, as introduced, may increase state and county expenditures by an indeterminable amount in FY 2015 and each year thereafter. There will be no impact on local expenditures, or state, county, and local revenue. METHODOLOGY: The Judicial Branch states this bill establishes the crime of filing a false lien or encumbrance against a public servant, punishable as a class A misdemeanor for a first or second offense and a class B felony for a third or subsequent offense. The Branch states it has no information on which to estimate how many prosecutions will be brought under the bill. The Branch does, however, have information on the average cost of processing cases in the trial court. The Branch projects the average cost of processing a class A misdemeanor will be $66.17 in FY 2015, and $67.64 in FY 2016. Any felony offense under the bill will be classified as a routine criminal case in the superior court; the Branch projects that the cost of prosecuting an average routine criminal case in the superior court will be $425.27 in FY 2015, and $433.34 in FY 2016. These numbers do not consider the cost of any appeals that may be undertaken following trial. All costs are estimated based on case weight information from the Branch's last needs assessment completed in 2005. The Department of Justice states that it will likely investigate and prosecute a small number of cases brought as a result of this bill, but that the number and cost cannot be estimated and thus the fiscal impact is indeterminable. The Department of Corrections states it is not able to determine the fiscal impact of this bill because it does not have sufficient detail to predict the number of individuals who would be subject to the legislation. The Department of Corrections states the average annual cost of incarcerating an individual in the general prison population for the fiscal year ending June 30, 2013 was $32,872. The cost to supervise an individual by the Department's division of field services for the fiscal year ending June 30, 2013 was $570. The Judicial Council states the bill may result in an indeterminable increase in general fund expenditures. The Council states that anyone who is charged and cannot afford the assistance of council will be eligible for a lawyer at state expense. Under the statutory order of assignment contained in RSA 604-A:2, representation is provided in the first instance by the public defender program, which provides representation in over 85 percent of indigent-defense cases. If a conflict of interest prevents the public defender program from providing representation in one or more cases, representation is provided by a contract attorney. These attorneys work on a per-unit basis. Misdemeanor cases are paid at a rate of $275 per case, while Class B felonies are paid at a rate of $756.25 per case. Defendants are ordered to repay these costs through the Office of Cost Containment. If a contract attorney is unavailable, the case will go to the assigned counsel system, in which compensation is paid at $60 per hour up to a cap of $1,400 for misdemeanors, and $4,100 for felonies. The New Hampshire Association of Counties states the fiscal impact of the bill is indeterminable. The Association states the average annual cost to incarcerate an individual in a county correctional facility is approximately $35,000. There is no impact on county revenue. |
Here is the written testimony I prepared for a January 14, 2014 hearing:
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Testimony in Favor of House Bill 1565-FN AN ACT establishing the crime of filing a false lien or encumbrance against a public servant.
Rep. Timothy Horrigan (Strafford 6) January 14, 2014 |
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I became interested in the issues behind this bill in 2011 and 2012, while I was serving on the now defunct Petitions & Redress of Grievances Committee. These issues were at the heart of Petition 28, filed by Ghislain "Gus" Breton. Ironically, Mr. Breton was the person who the filed bogus encumbrances against several individuals' property. He filed a "common law trademark" on the name "Ghislain Breton" and then he sued those individuals when they used his name while trying to get him to repay his debts. Some of the victims of this scheme were public servants as defined in RSA 640:2.
I never had any liens placed on my property while serving on that committee, but I was threatened with legal action by at least two petitioners who disagreed with my positions on their petitions. (Mr. Breton was not one of them.) RSA 640 is the statute on bribery, Bribery is giving an official something in exchange for doing something you want him or her to do. Filing bogus liens on a public servant's property is bribery in reverse. It should be punished the same way bribery is punished.
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On March 7, 2014, the Criminal Justice Committee heavily amended the bill. It will be voted on at the March 12, 2014 session, or soon thereafter::
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Rep.
Pantelakos, Rock. 25
Amendment to HB 1565-FN
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Amend the title of the bill by replacing it with the following:
AN ACT relative to the filing with a registry of deeds of a fraudulent document purporting to create a lien or claim against real property. |
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Amend the bill by replacing all after the enacting clause with the following:
1 New Subdivision; Fraudulent Filings. Amend RSA 478 by inserting after section 41 the following new subdivision: Fraudulent Filings 478:42 Fraudulent Filings. I. A person may not intentionally or knowingly present for filing or cause to be presented for filing in the registry, any type of document that is an alleged judgment or other document purporting to memorialize or evidence an act, order, directive, or process of creating a lien without having been authorized under state law, the Constitution, or the laws of the United States. For purposes of this section, a document or instrument purporting to create a lien on real or personal property is presumed to be fraudulent if: (a) The document or instrument alleges to create a lien or assert a claim against real or personal property or an interest in real or personal property and is not certified or ordered by a court or a judicial entity expressly created or established under the Constitution or the laws of this state or of the United States; or (b) Is not a document or instrument provided for by the Constitution or the laws of this state or the United States; or (c) Is not created by implied or express consent or agreement of the obligor, debtor, or owner of the real or personal property or an interest in the real or personal property; or (d) Is not an equitable, constructive, or other lien imposed by a court with jurisdiction created or established under the Constitution or laws of this state or the United States. II. If a register of deeds believes in good faith that a document filed with the registry of deeds alleges to create a lien that is fraudulent, the register shall index the document only under the signer of the document in the grantor index and shall identify the document as a notice in the document type. No other names appearing on the document shall be indexed. (a) The register shall send a copy of such document to the New Hampshire attorney general's office for review and possible prosecution. (b) Any such document or instrument on file with the registry of deeds presumed to be fraudulent or deemed fraudulent as described in this section shall be considered invalid, void, and having no force or effect on any named person or persons named within the document or instrument. III. Any person who shall knowingly or intentionally file a document or instrument with the express intent to fraudulently create a lien on real or personal property shall be guilty of a class B felony. 2 Effective Date. This act shall take effect 60 days after its passage. |
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2014-0241h AMENDED ANALYSIS This bill establishes requirements for registers of deeds presented with a fraudulent filing of a document purporting to create a lien of real property. The bill establishes criminal penalties for persons who file fraudulent documents or instruments with the registry of deeds. |
See Also:
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