ALABAMA

HB 412 (Oden) – Private Investigator Licensing.

This legislation, known as the Alabama Private Investigators Licensing and Regulatory Act, would create a commission to regulate and license PIs. The commission would consist of 11 members , at least 5 of whom were engaged as PIs in the state for at least 5 years prior to appointment. The membership of the commission “shall reflect the racial, gender, geographic, urban and rural, and economic diversity of the county.” Applicants must be at least 21 and a citizen of the U.S. or a resident alien. All applicants are required to pass an examination administered by the commission designed to measure knowledge and competence in the investigations field, and they are required to have 6 hours of continuing education in each calendar year. The measure contains the usual boilerplate language found in the PI statutes of other states, but this bill goes beyond the customary acts of wrongdoing. For example, it would make it a punishable offense for the PI to make a material misrepresentation as to his or her ability to perform the investigation required in order to obtain employment, or to continue an investigation when it becomes obvious to the PI that successful completion of an investigation is unlikely unless the PI first advises the client and obtains the client’s approval to continue the investigation.

Comment: Process servers in the act of serving legal process are not exempt from the application of this proposed law. However, there are 5 classes of individuals who are exempt—attorneys and their employees, accountants, government employees, financial/credit reporters, and insurance adjusters.

Status: Introduced 2/12/04. To Judiciary Committee

 

CALIFORNIA

AB 418 (Pacheco) – Substituted Service. This legislation, which now has become law, amended Section 415.20 of the CCP to expand the process by which a business is served by substituted service. In addition to service at a business's known office location, it permits process to be served by leaving a copy of the summons and complaint at the business's usual mailing address, other than a U.S. Postal Service post office box, with a person at least 18 years of age who is apparently in charge of the mailing address, followed by mailing an additional copy to the person to be served at the same location where the complaint was left. This legislation also adds Section 415.95 to the CCP, which permits substituted service, with followup mailing, on a business entity whose form is unknown. Service under this new law, however, is not valid for a corporation with a registered agent for service of process listed with the Secretary of State.

Comment: This bill was sponsored by CAPPS.

Status: **Signed by the Governor 7/27/03**

 

AB 690 (Pacheco) - Garnishment. This measure, which now has become law, permits a more convenient method of attaching the assets of a judgment debtor. Instead of having to personally serve a copy of the writ and notice of levy on the financial institution at which the deposit account is maintained, the levying officer may now serve the writ and notice of levy on one centralized location within the county, as designated by the financial institution, and the attachment lien will reach all accounts on deposit at all locations of that financial institution

Status: **Signed by the Governor 7/23/03**

 

SB 1368 (Ortiz) - Process Service. Would add Section 415.35 to the CCP which would permit substituted service upon a defendant's insurance carrier or its designated agent for service where the insurer has accepted coverage for the loss. If the defendant authorizes the carrier to accept service, the carrier shall respond to the complaint within 30 days of the authorization. If upon request by the carrier the defendant does not authorize carrier to accept service, the carrier shall immediately notify plaintiff and provide plaintiff with the defendant's last known address. Upon receipt of this notification, the plaintiff may then force the carrier to accept service and answer the complaint by providing the carrier with written notice that it will limit its claim to the policy limits. If, however, the defendant participates in discovery after the lawsuit has commenced, the plaintiff's election to limit its demand to the policy limits shall be deemed a nullity.

Status: Introduced 2/18/04. To Judiciary Committee.

 

FLORIDA

SB 222 – Private Mailbox Service. Various changes are proposed in this legislation, the principal changes being the authorization to effect substituted service at private mailboxes on both individuals and registered agents.

Section 48.031 of the Florida Statutes would be amended to add this subsection: (6) If the only address for a person to be served, which is discoverable through public records, is a private mailbox, substitute service may be made by leaving a copy of the process with the person in charge of the private mailbox, but only if the process server determines that the person to be served maintain a mailbox at that location.

Section 48.081 would be amended to add this subsection: (3)(b) If the address provided for the registered agent, officer, director, or principal place of business is a residence or private mailbox, service on the corporation may be made by serving the registered agent, officer, or director in accordance with section 48.031.

Comment: NAPPS member Jack Lippman and the Florida Association of Professional Process Servers (FAPPS). are the movers behind this bill.

Status: Introduced in 2003, the bill has been passed by the Senate and is currently working its way through the House. There is an excellent chance this legislation will pass before the session ends in May.

 

ILLINOIS

HB 1381 (Fritchey) – Process Servers. This bill is another run at breaking the sheriff’s stranglehold on serving civil process in Cook County. By removing the 1 million population requirement it would permit licensed private detectives to serve in all Illinois counties without special appointment.

Comment: Numerous efforts over the past decade have been made to open Cook County’s flood gates so that PIs could serve process without the inconvenience and burden of going before the court to get a superfluous special appointment. A partial victory was won in 1999, when the law was changed to allow appointment of a private detective agency—rather than a specific individual—to serve process in Cook County. PIs are hopeful that the time is ripe for the legislature to put and end to the special appointments requirement in Cook County. This bill, unfortunately, does nothing to benefit those process servers in Illinois who do not hold a PI license or work as an employee with a valid Permanent Employee Registration Card (PERC).

Status: Introduced 2/6/03. Referred to Rules Committee 2/6/03 and then to Executive 2/11/03. Re-referred to Rules Committee 3/13/03. Still in Rules Committee in 2004.

HB 7042 (Jones) – Process—Child Support. This bill, obviously supported by the attorney general’s office, would amend the Code of Civil Procedure to authorize licensed private detectives and employees of licensed detective agencies to serve Illinois child support papers in Cook County without special appointment.

Status: Introduced 2/9/04. To Rules Committee.

 

NEW YORK

AB 3660 (Kaufman) – Process Service. This bill is similar to an earlier bill introduced in the 2001 legislature but didn’t make it through. The bill would permit service of process on the doorperson or concierge of a multiple dwelling to satisfy the substituted service requirement of delivering to a person of suitable age and discretion at the usual place of abode of the person to be served and followed by a mailing by first class mail. The proposed law imposes two additional requirements: (1) That it can be demonstrated that the doorperson performs the normal and customary duties associated with such employment; and (2) That access to the usual place of abode of the person to be served was impeded or denied by the doorperson or concierge. The delivery and mailing must be effected within 20 days of each other; and proof of service shall be filed with the clerk of the court within 20 days of either the delivery or the mailing, whichever is effected later. Proof of service shall identify the person of suitable age and discretion and shall state the date, time and place of service.

Comment: This is the 6^th time that similar bills proposing service on doorpersons at gated communities have been introduced in New York. None of the former bills—in 1994, 1996, 1998, 1999, and 2001—ever made it to the Governor’s desk. As a practical matter, this proposal has already become reality as result of case decisions where the New York courts have held that substituted service on an apartment building doorperson was sufficient after the process server was refused admittance into the apartment building’s front entrance. See F.I. duPont, Glore Forgan & Co. v. Chen, 41 N>Y>2d 794; 364 NE 2d 1115 (NY Ct. App. 1977.

Status: Introduced 2/10/03 to Codes Committee. From Codes Committee 3/20/04. In Assembly.

 

SB 5964 (Marcellino) - Private Investigators. Would amend the penal law to exclude a licensed private investigator from the application of unlawful surveillance crimes.

Status: Introduced 1/20/04. To Codes Committee.

 

OHIO

HB 200 (Williamowski) – Process Servers. Would permit a child support enforcement agency to have its process served in one or both of the following ways: 1) by contract with the sheriff to compensate the sheriff’s office for service of process, or 2) by contract with a private person or entity.

Comment: Rule 4.1(2) of the Ohio Rules of Civil Procedure requires private persons to be designated by order of the court to serve process. This bill does not address the matter of process server authorization. It seems logical, therefore, that any private process server or entity which obtained a contract to serve CSE agency documents under this legislation would be exempt from having to be court appointed to serve them.

Status: Introduced 5/21/03. Reported from House Human Services and Aging Committee with Recommendation 6/25/03.

 

TENNESSEE

HB 2738 (Bunch) - Service by Mail. Would amend Section 16-15-903 of the Tennessee Code by adding a new subsection relative to the effect of serving process by certified mail on general sessions court defendants located within the state. Where Tennessee law permits such service, and it is stated on the written return receipt that defendant refused to accept delivery, it shall be deemed a valid service of the writ or other papers. A USPS notation of "unclaimed" on a properly addressed certified letter is sufficient evidence of defendant's refusal to accept.

Status: Introduced 1/26/04.

 

HB 2825 (Buck) same as SB 3020 (Burchett) - Process Servers. Would enact the "Private Process Servers Regulatory Act," which would be under the control of the Secretary of State. It would require all persons who serve Tennessee court process within the state to be either a licensed process server or a certified law enforcement officer. There are no exemptions for attorneys or their employees. This bill would also require any public utility to provide licensed process servers with current addresses of customers, or forwarding addresses if they have moved.

Comment: This bill is sponsored by The Tennessee Association of Professional Process Servers (TAPPS) which sponsored similar legislation in the last session, but it failed to get through due to stiff opposition from the bar association. [Currently, Tennessee attorneys are permitted to serve initial process in their own cases.]

Status: Introduced 1/28/04. To Judiciary Committee

 

VIRGINIA

SB 335 (Stolle) - Process Service. The effect of this bill is to exclude private process servers from serving any process on school property (upon teachers or other school personnel) where the subject matter involves custody or visitation of a minor child. The sheriff would be the only authorized server.

Status: Introduced 2/10/04. Passed House 3/8/04.

 

WASHINGTON

HB 2912 (Schindler) - DMV Records. Would amend RCW 46.52.130 to add licensed private investigators, licensed investigative agencies, and licensed security services to the list of persons/entities authorized to obtain certified abstracts of driving records for a period covering not more than the last 3 years.

Status: Introduced 1/22/04. To Transportation Committee.

 

 

WISCONSIN

AB 568 (Gard) - Process Servers. This is a very unusual bill. It would authorize any adult who resides in Illinois, Iowa, Michigan, or Minnesota and who is not a party to the action to serve initial process in Wisconsin. Current law permits service (of Wisconsin process) to be made by any adult resident of the state where service is made. Wisconsin is now inviting process servers from 4 neighboring states to come in and serve process issued out of Wisconsin courts. Very odd indeed.

Status: Introduced 10/6/03. To Judiciary Committee 2/25/04.

 

 

LEGISLATION INVOLVING INCREASE IN SHERIFFS’ FEES FOR SERVING PROCESS

 

IDAHO: Effective 7/1/03 the county sheriffs will be allowed to establish service of process fees in an amount reasonably related to the actual cost of service, but not to exceed such actual cost.

 

INDIANA: Pertains only to cases filed outside of Indiana. On 1/12/04 SB 372 was introduced to permit the sheriff to raise the fee for service of out-of-state process from $40 to $80. On 1/20/04 HB 1439 was introduced to raise the fee from $40 to $50.

 

MICHIGAN: Effective 1/1/04 the service fee was raised from $16 to $18 plus mileage. The fee will automatically increase by $1.00 for the succeeding three years, commencing October 1, 2004.

 

NORTH CAROLINA: HB 918 was introduced in April 2003 to raise the sheriff’s service of process fee from $5 to $15. It quickly passed the House but has been mired in the Senate’s Finance Committee—without any reported action—since July 2003.

 

OHIO: On 6/26/03 legislation was enacted to increase the sheriff’s fee for service and return of all summons, writs, orders, or notices from $3 to $6 plus mileage of $1 for the first mile and 50-cents for each mile thereafter. [Seems that Ohio, North Carolina and Utah are in a pitched battle to see who can have the lowest service of process fee in the nation.]

 

OKLAHOMA Effective 7/1/03 the sheriff’s fee for service of process was raised from $35 to $50

 

PENNSYLVANIA: HB 305, introduced on 2/13/03, would increase from $18 to $28 the sheriffs’ fees for receiving, docketing, and making return of each service of process. Bill has been in House Judiciary Committee since 2/18/03.

[Note: Philadelphia (and several other counties) are permitted to establish their own fees, which are, as one might expect, sky high.]

 

TENNESSEE: On 1/29/04 SB 2785 was introduced which would increase the sheriffs’ fee from $20 to $40 for each process served. Bill is in the Judiciary Committee.

 

VIRGINIA: Pertains only to papers received from out of state. Legislation that increases the service fee sheriffs may charge—from $50 to $75--for all out-of-state process has been passed by both House and Senate and sent to the Governor for approval.

 

WEST VIRGINIA: On 1/16/04 HB 4056 was introduced for the purpose of increasing the sheriffs’ fee for service of process from $20 to $25. The $5 increase will be divided up, with $2 going to the WV deputy sheriff retirement fund and $3 to the county general revenue account.

 

 

MISCELLANEOUS LEGISLATION:

INTERFERENCE WITH SERVICE OF PROCESS AND CREATION OF THE CRIME OF BATTERY OF AN OFFICER OF THE COURT.

 

INDIANA: A bill introduced on 1/13/04—HB 1210—provides that a person who resists, obstructs, or interferes with a law enforcement officer engaged in official duties, or with the authorized service of process or execution of a court order, commits the offense of resisting law enforcement regardless of whether the person uses force. Violation is a Class A misdemeanor unless a vehicle or deadly weapon is used, in which case it is a Class B, C, or D felony. [There is nothing in the text of this bill that would offer any protection to private process servers.]

 

LOUISIANA: This bill—HB 721, filed 3/18/04—creates the crime of battery of an “officer of the court.” Officer of the court is defined as “any judicial officer, probation or parole officer, attorney, or employee of the court.”