Legislation/Bills Archives - Page 2 of 6 - DGR Legal

VA SB 823 Would Grant Process Servers Access to Gated Communities

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access to gated communitiesVirginia SB 823 would give process servers access to gated communities and multi-family residential dwellings for the purpose of service of process.

“An employee or agent of an owner of multifamily residential real estate or a common interest
48 community, as defined in § 55-528, exercising physical control over common entry points to restrict
49 access to the multifamily residential real estate or the common interest community shall grant entry to a
50 person attempting to execute service on a party who resides in, occupies, or is known to be present in
51 the multifamily residential real estate or the common interest community, provided that the person
52 attempting to execute service (i) is authorized to serve process as set forth in § 8.01-293 and (ii)
53 presents to the owner, or its employee or agent, a valid identification and evidence of the process to be
54 served.”

This bill could be a huge benefit to Virginia process servers, who have all no doubt encountered situations where effectuating service was either difficult or impossible due to the subject residing in a gated community.

The bill also benefits the legal community as a whole. No longer will cases be delayed due to individuals being unable to be served due to their residence being a part of a multi-family or restricted access community. Instead, the judicial process will be expedited.

Additionally, the legislation serves to protect the integrity of due process rights and the rights of every citizen to be adequately notified of legal matters concerning them.

If passed, Virginia would join Illinois, Washington, Florida and California as states where specific rules allow process servers entry to gated communities. Unlike these other states however, Virginia does not have registered or licensed process servers. In order to gain entry the legislation requires process servers to be allowed to serve under Virginia rules as well as provide “a valid identification and evidence of the process to be served”.

SB 823 was introduced by Senator Jennifer T.  Wexton on November 9th, 2016.

For the full text of the bill go here.

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Rule Change Affects New Jersey Process Service and Subpoenas

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new jersey rule change process serviceIn the annual end-of-summer announcement of amendments to the New Jersey Court Rules, a change to R 1:9-3 will affect New Jersey process service.

The rule change allows subpoenas seeking the production of documents to be served through mail rather than the previously required personal service.

The new rule looks as follows with the underline portion being the addition:

1:9-3. Service

A subpoena may be served by any person 18 or more years of age. Service of a subpoena shall be made by delivering a copy thereof to the person named together with tender of the fee allowed by law, except that if the person is a witness in a criminal action for the State or an indigent defendant, the fee shall be paid before leaving the court at the conclusion of the trial by the sheriff or, in the municipal court, by the clerk thereof.  A subpoena which seeks only the production of documents or records may be served by registered, certified or ordinary mail and if served in that manner, shall be enforceable only upon receipt of a signed acknowledgment and waiver of personal service.

While attorneys have been sending these types of subpoenas through the mail for years, the rule changes provide the ability for attorneys to make the subpoena enforceable. Previously the subpoena was mailed in the hope the individual or company would simply comply with the request. If they didn’t respond, the attorney could then send out a process server.

It doesn’t mean attorneys can expect to enforce a subpoena for documents simply by mailing it however. The rule change only allows the subpoena to be enforceable is there is a receipt of a signed acknowledgement and a waiver of person service. To sign the documents and waive personal service is all up to the recipient. A subject who is evading or who just isn’t cooperative means that the subpoena will have the same enforceability it did prior to the rule change – none.

What does this mean for New Jersey process servers?

In order to continue to be the go-to option for attorneys, we must continue to be efficient. Serving a subpoena personally automatically makes it enforceable and gives the subject little room to attempt to claim improper service. Mailing however, opens up a set of issues over the validity of the service and ultimately the overall need to comply with the request for production.

When there is a matter where the production of documents is key to a case or is needed on a time-sensitive basis, a process server should always be the immediate choice. You wouldn’t find out if an individual was going to comply or not with a mailed subpoena until a week or two after receipt of it. In some cases lost time can greatly impact the final ruling.

Because the additional wording was included requiring the signed acknowledgment and waiver, New Jersey process servers won’t be severely impacted by the change. It is important however to maintain the importance of a trusted third party to ensure the receipt of such documents in order to protect due process rights, particularly when the subject hasn’t acknowledged acceptance of service by mail as the initial method of service.

 

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Assault Against Process Servers Becomes Felony Charge in New York

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New York process servers will now have additional protection against assaults with the passage of SB2991, which makes assault against a process server a Class D felony.

It took the bill four legislative sessions to finally be passed, but it was worth the wait. In an age where process servers are facing increasing tension and violence, this new law will help to create further penalties for anyone who attacks a process serve. Not only does the new law offer some form of deterrent, but it also provides a means with which to hold assailants accountable for their actions against a process server who is supporting the legal system.

Quote from an article from the Times Union shows clear support of both the Assembly and Senate for the newly passed bill:

“Process servers play an important role in our justice system. It is reprehensible that someone would intentionally injure a process server simply for conducting the business of the courts and citizens of New York State. This new protection will elevate repercussions for those who harm process servers, keeping more New Yorkers safe.”   -Senator Catharine Young

“Process servers are considered the legal system’s delivery agents and should be given the same laws of protection as we do law enforcement agents. This legislation will give process servers the protection they need and deserve and I thank Governor Cuomo for signing it into law.”   -Assemblyman J. Gary Pretlow

New York joins California, Florida and Illinois, all who have laws in place making assault against a process server a felony.

A big congratulations is in order for New York process servers and the New York State Professional Process Servers Association (NYSPPSA) who have put in countless hours, funds and determination to help see this bill from development to passage.

 

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Two New York Process Server Bills Pass Senate

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New York process server billTwo bills affecting process servers have passed the New York Senate – one which would remove the logbook requirement and another which would make assault against a process server a Class D felony.

The bill concerning logbooks , SB 4916 (same as A-05656), was passed by the Senate on March 22, 2016 and sponsored by Senator Martin J. Golden. The goal of the bill is:

“To eliminate the mandated redundancy and duplication of efforts in record keeping by a process server that has incurred since the inception of NYC municipal laws that now mandate a digital record requirement.”

The bill looks to the states’ requirements of general business law Sec. 89-cc to build its justification, citing that the requirement to record the same information twice in both digital and handwritten formats is an undue burden without any clear benefit to any regulatory authority.

The other bill, SB 2991 (same as A01250), would make assault a process server a Class D felony in assault of the second degree.  This bill would grant New York process servers additional protection while out serving and goes so far as to include the releasing of an animal upon a process server as grounds to be charged with a felony.

The bill will amend the penal law in relation to assaults upon process servers to include:

“ With intent to prevent or obstruct a process server, as defined in section eighty-nine-t of the general business  law,  from  performing  a lawful  duty  pursuant  to  article  three of the civil practice law and rules, or intentionally, as retaliation against such  a  process  server for  the  performance  of  the  process server’s duties pursuant to such article, including by means of releasing or failing to control an animal evincing the actor’s intent that the  animal  prevent  or  obstruct  the lawful  duty of the process server or as retaliation against the process server, he or she causes physical injury to such process server.”

The New York State Process Servers Association (NYSPPSA) has seen the same assault legislation bill pass the Senate last year. With the bill not passing Senate until June 11th and the session closing on June 19th, there wasn’t enough time for it to make it to the Assembly floor before the session closed.

It is the hopes of the New York State Professional Process Servers Association that both bills will pass without issue in the Assembly.

For full text of the logbook Senate bill go here.
For the full text of the assault Senate bill go here.

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Illinois Bill Proposes Process Servers Wear Body Camera

Posted by | Legislation/Bills | One Comment

process server body cameraWearing a body camera could become a requirement for process servers in Illinois.

A recently introduced bill would require process servers in counties with a population of 3,000,000 or more to wear a body camera while serving and record all attempts.

The bill, HB6327, also requires the process server to store the data until the case involving the service is fully adjudicated.

While currently only one county, Cook, has a population of more 3,000,000, if the bill is passed it could set a dangerous precedent.

The use of body cameras by law enforcement has always raised one primary budget concern – the cost associated with the organization and storing of data. For process servers, many of whom operate on a lower-scale budget, this requirement could prove to be an unbearable cost.

When the DCA implemented GPS requirements for services on NYC process servers, one effect was nearly 60% of process servers choosing not to renew their license in the two years following. The costs were simply too burdensome for many process servers to take on.

There is no doubt if body cameras were required in Illinois for process servers a similar effect would take place. This is unfortunate, as it eliminates healthy competition and reduces attorneys’ options.

The Illinois Association of Professional Process Servers (ILAPPS) has drafted points in opposition to the bill.  While the association determines next steps, ILAPPS is encouraging members to write to their elected officials in opposition to the bill.

To read the full bill click here.

To read ILAPPS’ submitted comments click here.

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Virginia Looked To End Prohibition of Service on Sundays

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Prohibition of Service on SundaysVirginia entered a bill into the Senate which would eliminate the prohibition of process on Sundays.

Sponsored by Senator Jennifer Wexton, the bill was introduced on December 21, 2015 but was defeated in the Courts of Justice (6-Y 9-N). The bill called for the repeal of  §8.01-289 of the Code of Virginia.

Virginia isn’t the only state which prohibits service on Sundays. Other states which don’t allow service on Sundays includes:

  • Florida
  • Maine
  • Massachusetts
  • Minnesota
  • New York
  • Rhode Island
  • South Dakota
  • Tennessee
  • Texas
  • Virginia
  • West Virginia

Allowing service to be completed on Sundays would provide a valuable and much-needed weekend day to complete service. Many individuals who are not home on the weekdays tend to be home on the weekend, particularly in the morning hours or Sunday evenings.

Virginia currently has its own process server association, the Commonwealth of Virginia Association of Professional Process Servers (CoVAPPS).

Here is the full text of the original bill:  https://legiscan.com/VA/text/SB75/2016

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Process Service Legislation in Full Swing in Florida

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process service legislationThe Florida Association of Professional Process Servers (FAPPS) has been very diligent in staying on top of process service legislation.

FAPPS awareness of legislative issues allowed them to be an active part of having wording changed on two bills which are set to impact process servers. The first bill, HB 651, would allow the Department of Financial Services to create a system for accepting service of process documents electronically.  In order to ensure traditional process service was not completely eliminated, a meeting with FAPPS and the department resulted in making sure the amendment is in addition to standard service of process. The Department of Financial Services has stated their intent with this bill was to make sure service couldn’t be sent to them via certified mail.

FAPPS was also able to intervene on behalf of its members in a bill that is still is being drafted. The Florida Bankers Association (FBA) is seeking to create a central authority for process service to be made, essentially a registered agent for any company conducting business in Florida. Thankfully the FBA agreed to remove wording which would have allowed for service by mail or other delivery service. Wording is still included which required service by a trusted third party authorized to serve.

For FAPPS original proposed suggestions go here.

FAPPS is also looking to include a new bill to amend Chapter 48.031 to allow for service on virtual, executive or mini office suites such as a Regency and to allow for service to made on the person in charge the same way it would be upon a private mail box location.

In recognizing through the OASIS proposal the impending use of electronic service of process, FAPPS is also seeking to amend Chapter 49 to add in a definition of what “electronic service” is and to include a provision that electronic service via social media can only be made by a trusted third party authorized to serve in Florida.

FAPPS is looking for assistance with seeking sponsors for the bill and asks members to reach out to any member of Senate or Congress they may know to see if they will help in sponsoring the bill.

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Florida Process Servers Now Able To Post Deposition Subpoena After 1 Attempt

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SB672 recently passed in Florida, allowing process servers in the state to post subpoenas for depositions for criminal witnesses after 1 attempt has been made.

Any other type of subpoena, including those for trial or any one hearing aside from a deposition, for criminal witnesses still requires three attempts. After the three attempts the subpoena may be posted.

In both situations, the subpoena must be posted at least five days before the witness’s required appearance.

Here is the complete bill text (underlined text represents additions):

1

2         An act relating to service of process; amending s.

3         48.031, F.S.; authorizing a criminal witness subpoena

4         commanding a witness to appear for a deposition to be

5         posted at the witness’s residence by an authorized

6         person if one attempt to serve the subpoena has

7         failed; reenacting ss. 48.196(2) and 409.257(5), F.S.,

8         to incorporate the amendment made to s. 48.031, F.S.,

9         in references thereto; providing an effective date.

10

11  Be It Enacted by the Legislature of the State of Florida:

12

13         Section 1. Paragraph (b) of subsection (3) of section

14  48.031, Florida Statutes, is amended to read:

15         48.031 Service of process generally; service of witness

16  subpoenas.—

17         (3)

18         (b) A criminal witness subpoena commanding the witness to

19  appear for a court appearance may be posted by a person

20  authorized to serve process at the witness’s residence if three

21  attempts to serve the subpoena, made at different times of the

22  day or night on different dates, have failed. A criminal witness

23  subpoena commanding the witness to appear for a deposition may

24  be posted by a person authorized to serve process at the

25  witness’s residence if one attempt to serve the subpoena has

26  failed. The subpoena must be posted at least 5 days before prior

27  to the date of the witness’s required appearance.

28         Section 2. Subsection (2) of s. 48.196 and subsection (5)

29  of s. 409.257, Florida Statutes, are reenacted for the purpose

30  of incorporating the amendment made by this act to s. 48.031,

31  Florida Statutes, in references thereto.

32         Section 3. This act shall take effect July 1, 2015.

 

 

               

 

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Hawaii Passes Bill Protecting Process Servers From Trespass

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process server no trespassingHawaii recently passed HB87 on June 10th, which protects process servers from criminal trespass.

This protection only applies to process servers who are attempting to serve in good faith and does not apply when the premises are surrounded by a locked gate.  The wording of the rule leaves it open to interpretation as it says “unless the land or premises are secured with a fence and locked gate”. If the property only had locked gate which covered the driveway, it appears the server could walk onto the property without using the driveway. If there is a fence which surrounds the property but there is only a latch on the gate, then the server is also able to enter the property without fear of trespass charges.

The rule also indicates the servers must be attempting to serve the owner or occupant of the land or premises, an agent of the owner or a lessee. It is unclear if this rule applies to a server attempting to serve an individual who they know is currently at the location (visiting a friend, staying a few nights temporarily, etc.), but does not fall into any of the previously listed individuals.

Here is the full addition to the rule:

(2)  Subsection (1) shall not apply to a process server who enters or remains in or upon the land or premises of another, unless the land or premises are secured with a fence and locked gate, for the purpose of making a good faith attempt to serve process upon any of the following:

(a)  An owner or occupant of the land or premises;

(b)  An agent of the owner or occupant of the land or premises; or

(c)  A lessee of the land or premises.

“Process server” means any person authorized under the supreme court rules or section 353C-10 to serve process.

 

For the complete bill and text regarding trespass go here.

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Cause For Concern For Process Servers In Washington?

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A fellow blogger recently published a series of several articles which highlights some growing issues in the state regarding service by mail and alternate methods as replacement for traditional service.

One of these posts stands out as not only a concern as to where the future of process service is headed, but also as a problem for everyone who believes in the right to due process.

One of the articles references SHB 1730, which would allow service of a summons on a party to a real estate purchase and sale agreement by first-class mail. This piece completely disregards any need for due diligence.

The new rule also doesn’t require mailing by certified or registered mail, as service via mail usually does. Here is another big issue. How can there be proof of service? What’s to prevent someone from simply saying the summons was mailed? As Robin points out, there is nothing to protect the defendant’s in the case.  While this is a minimal portion of the entire bill and how service can be pursued in various scenarios, that this provision even made its way into the bill is a problem.

As process servers, we need to be aware of what legislation is going on in our state and take steps to oppose any part we feel is detrimental to both our industry and to the right to due process. This is one piece of legislation which shows the types of service which could make its way into law and slowly spread to be included in other rules and service scenarios if we are not diligent in keeping an eye on the bills in our state Senate and House.

 

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