November Process Server Legislation

• November 15, 2010
• by ServeNow.com Staff
• Legislation

Each month, ServeNow.com takes a look at the legislative news that affects the process server community on both statewide and national levels. If you have news from your state – anything from changes in court fees to information about the formation of a new state association – this is your forum to share it with your peers. Send your process server news to [email protected] and we will include it in the next month’s ServeReport newsletter.

Here’s this month’s news for process servers, by process servers.

CALSPro News Update

This past year has been a very busy one for legislative issues for process servers. We had bills introduced that would have dramatic, profound, and harmful effects on our profession. There were also bills that will clarify current procedures for serving notices at a commercial property and that will codify the practice of electronic service of process.

SB984 would have imposed fines of $10,000.00 and $25,000.00 for serving the wrong person, serving at a bad address, and serving outside of specified hours. It was later amended, removing the proposed fines but required that the first attempt to serve a summons and complaint that initiates an action be made between the hours of 7:00AM and 8:00PM. SB984 never made it to the Senate floor for a vote. A lot of wrangling calls and letters of opposition ultimately led to this bill not moving forward. The Author met with a lot of resistance to this bill and had no support.

With all the concern and efforts to defeat SB984 (Hollingsworth), another bill loomed as a larger threat to our businesses. AB2394 (sponsored by the Los Angeles County Sheriff’s Dept.) as introduced, would have allowed county sheriffs to transmit and receive “Documents”. The definition of a “Document” included “instructions, release, notice to financial institution, earnings withholding order, modification of an earnings withholding order, garnishment, writ, subpoena, court order, warrant of arrest, or another judicial process”. In-person and telephonic meetings were held with the author and the advocate for the Los Angeles County Sheriff’s Dept., as well as members of the Assembly Judiciary Committee, the Judicial Council, Executive Clerk’s of several counties, and representatives of the state Sheriff’s Association. Many concerns were raised including the effect on due process, public policy, and the ability to ensure receipt and compliance with the process. Several revisions were made to the bill. In its’ final version, AB2394 does not allow the Sheriff’s to serve anything electronically. The bill does allow service of an earnings withholding order by First Class mail, instead of the current Certified Mail requirement (saving postage). If they don’t receive the employers return within 15 days from mailing, they must physically serve it. Also, if the instructions to the sheriff state or require physical service at the location, they can not mail it. The bill allows the Sheriff to store a copy of the original writ and they will no longer have to return the original to the court. Instead, a levying officer’s return will be sent to the court indicating a current accounting and may also indicate that the writ is no longer active, thus allowing the court to issue a new writ for a specific county. The Sheriff can transmit and receive their reports, a release, a memorandum of garnishee and instructions electronically, but only if the specific court and the Sheriff jointly determine that they each have the resources and technological ability to do so, and, that they have mutually agreed to electronically act upon documents (they must “opt-in” and have the technological ability to act electronically). This bill was Chaptered on September 30, 2010, and is effective January 1, 2011.

AB1263 was chaptered on August 17, 2010. This bill makes changes to the service of notices under CCP 1161 and 1161a on commercial tenants. The new law which goes into effect January 1st, 2011 no longer requires attempted service at a home address and all mailings must go to the address of the involved property. A lease agreement may contain additional service requirements, but if the lease doesn’t specify, then serve/post/mail at the property only.

SB1274 was chaptered August 18, 2010. This bill deals with “electronic service”. No “primary service” (anything that brings a party under the jurisdiction of the court) is authorized by this bill. Parties have to agree to electronic service. Any document that can be served by mail or overnight delivery can be served electronically. The time period to act is extended by two days with only a few exceptions.

Brett Peters,
CALSPro Legislative Committee Chair

Illinois Association of Professional Process Servers

Illinois Association of Professional Process Servers Officially Up and Running

A new organization has been launched to provide training, professional standards and legal protection to people who serve legal process across the State of Illinois.

The Illinois Association of Professional Process Servers (ILAPPS) last week adopted by-laws, a code of conduct, and elected officers, launching the start of a new trade association in Illinois. Among ILAPPS’ mission will be creating, maintaining, and enforcing high ethical standards, training, and education of its membership, and lobbying the Illinois General Assembly.

For next year’s legislative session, the association hopes to increase penalties for those who batter or assault process servers. Last April, a former Rend Lake Community College president fired a shotgun at a process server as he was chasing her off his property. The man was initially charged with only a misdemeanor.

According to Bill Clutter, a Springfield private investigator, a similar attack occurred last year, as one of his agents was nearly choked to death by a man who refused to accept service. “The person who did this was charged with a simple misdemeanor. Attacking a meter reader carries the penalty of a felony,” said Clutter. “But as a person serving court documents, we don’t have the same protection under the law.” The flaws in the law prompted Clutter to begin organizing an association in Springfield to have a voice with legislators.

“I started serving papers in 1984, and use to joke to people, ‘Don’t shoot me, I’m just the messenger!’ This was a time when banks were foreclosing on farmers. I said this to a farmer as he was walking up with a rifle in his hand. Humor can be disarming in a situation like that, but it’s no joking matter. Process serving can be a dangerous business. Our agents need to be protected.”

Recent attention has been focused on the foreclosure industry, which includes the delivery of court documents by process servers. Dan Schroeder, elected president of ILAPPS on Saturday stated: “Quite frankly, there are some people out there serving process who are doing so contrary to the best practices set by our national trade association, and in some cases, they are committing outright fraud. This is a very serious problem in some areas of the country that needs to be dealt with.”

Schroeder noted that ILAPPS is seeking passage of legislation that would mandate that all process servers in Illinois undergo comprehensive training and certification before they are authorized by the courts to serve process.

For a private individual to serve process, an attorney is required to file a motion to appoint a private process server. This requires approval by a judge. A sheriff can serve process in all 102 counties in Illinois without special court appointment. The Code of Civil Procedure also gives the same status to licensed private detectives, who can serve process without special court appointment in all counties, except Cook.

One goal of the Association, Schroeder noted, is to seek passage of legislation that will allow private detectives in Cook County to serve process without special court appointment. Each time a lawsuit is served in Cook County the attorney must prepare additional pleadings to appoint the process server.

“We want the law in Illinois to be uniform,” said Schroeder. “Cook County is the only county in Illinois that requires the attorney to file this extra paperwork. This would save litigants a lot of unnecessary expense,” said Schroeder.

Schroeder explained licensed private detectives must pass a proficiency test in order to receive a license. Not everyone is qualified to take the private detective test. A person must have at least three years experience either in law enforcement or with a licensed private detective agency. A person must also pass a criminal background check before a Private Investigator license is issued.

“The agents I employ to serve process must receive a 20-hour basic training course,” said Schroeder. “Private individuals who serve process through court appointment don’t have these requirements of experience or training. That is something our association will be working to address.

“We want to bring rouge operators into compliance with the laws that govern service of process and to have them adopt our Code of Conduct and Best Practices,” said Schroeder.

“It’s never a happy occasion when a process server comes knocking on someone’s door,” he said. “The last thing we want to do is worsen the situation for someone with a process server who acts in an unprofessional manner,” said Schroeder.

“We play a vital role in the judicial process by securing jurisdiction over a party to a lawsuit,” said Schroeder. “We want our agents to be courteous, professional, and above all—honest.”

Bill Clutter
ILAPPS Vice President

Have news from your state? Send it to [email protected] and we will include it in next month’s ServeReport News Roundup. You can also request to receive our monthly e-mail reminder asking for your process server news.