House Bill 1199

AN ACT TO AMEND SECTION 97-43-3, MISSISSIPPI CODE OF 1972, TO REVISE THE DEFINITION OF "RACKETEERING ACTIVITY" IN THE MISSISSIPPI RACKETEER INFLUENCED AND CORRUPT ORGANIZATION ACT, TO INCLUDE THE PREDICATE ACT OFFENSES ENUMERATED IN THE FEDERAL LAW REGARDING RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS; TO AMEND SECTION 97-43-9, MISSISSIPPI CODE OF 1972, TO REMOVE THE REQUIREMENT THAT A PERSON OR ENTITY BE CONVICTED OF ENGAGING IN RACKETEERING ACTIVITY BEFORE HE CAN BE NAMED AS A DEFENDANT IN A CIVIL ACTION SEEKING INJUNCTIVE RELIEF OR DAMAGES FOR INJURY; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 97-43-3, Mississippi Code of 1972, is amended as follows:

97-43-3. The following terms shall have the meanings ascribed to them herein unless the context requires otherwise:

(a) "Racketeering activity" means to commit, to attempt to commit, to conspire to commit, or to solicit, coerce or intimidate another person to commit any crime which is chargeable under the following provisions of law:

(1) Section 97-19-71, Mississippi Code of 1972, which relates to fraud in connection with any state or federally funded assistance programs.

(2) Section 75-71-735, Mississippi Code of 1972, which relates to violations of the Mississippi Securities Act.

(3) Sections 45-13-105, 45-13-109, 97-37-23 and 97-37-25, Mississippi Code of 1972, which relate to unlawful possession, use and transportation of explosives.

(4) Sections 97-3-19 and 97-3-21, Mississippi Code of 1972, which relate to murder.

(5) Section 97-3-7(2), Mississippi Code of 1972, which relates to aggravated assaults.

(6) Section 97-3-53, Mississippi Code of 1972, which relates to kidnapping.

(7) Sections 97-3-73 through 97-3-83, Mississippi Code of 1972, which relate to robbery.

(8) Sections 97-17-19 through 97-17-37, Mississippi Code of 1972, which relate to burglary.

(9) Sections 97-17-1 through 97-17-13, Mississippi Code of 1972, which relate to arson.

(10) Sections 97-29-49, 97-29-51 and 97-29-53, Mississippi Code of 1972, which relate to prostitution.

(11) Sections 97-5-5 and 97-5-31 through 97-5-37, Mississippi Code of 1972, which relate to the exploitation of children and enticing children for concealment, prostitution or marriage.

(12) Section 41-29-139, Mississippi Code of 1972, which relates to violations of the Uniform Controlled Substances Law; provided, however, that in order to be classified as "racketeering activity," such offense must be punishable by imprisonment for more than one (1) year.

(13) Sections 97-21-1 through 97-21-63, Mississippi Code of 1972, which relate to forgery and counterfeiting.

(14) Sections 97-9-1 through 97-9-77, Mississippi Code of 1972, which relate to offenses affecting administration of justice.

(15) Sections 97-33-1 through 97-33-49, Mississippi Code of 1972, which relate to gambling and lotteries.

(16) Any offense defined as racketeering activity in subsection (1) of 18 USCS 1961.

(b) "Unlawful debt" means money or any other thing of value constituting principal or interest of a debt which is legally unenforceable, in whole or in part, because the debt was incurred or contracted in gambling activity in violation of state law or in the business of lending money at a rate usurious under state law, where the usurious rate is at least twice the enforceable rate.

(c) "Enterprise" means any individual, sole proprietorship, partnership, corporation, union or other legal entity, or any association or group of individuals associated in fact although not a legal entity. It includes illicit as well as licit enterprises and governmental, as well as other, entities.

(d) "Pattern of racketeering activity" means engaging in at least two (2) incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents, provided at least one (1) of such incidents occurred after the effective date of this chapter and that the last of such incidents occurred within five (5) years after a prior incident of racketeering conduct.

SECTION 2. Section 97-43-9, Mississippi Code of 1972, is amended as follows:

97-43-9. (1) Any circuit court may, after making due provision for the rights of innocent persons, enjoin violations of the provisions of this chapter by issuing appropriate orders and judgments, including, but not limited to:

(a) Ordering any defendant to divest himself of any interest in any enterprise, including real property.

(b) Imposing reasonable restrictions upon the future activities or investments of any defendant, including, but not limited to, prohibiting any defendant from engaging in the same type of endeavor as the enterprise in which he was engaged in violation of the provisions of this chapter.

(d) Ordering the suspension or revocation of a license or permit granted to any enterprise by any agency of the state.

(e) Ordering the forfeiture of the charter of a corporation organized under the laws of the state, or the revocation of a certificate authorizing a foreign corporation to conduct business within the state, upon finding that the board of directors or a managerial agent acting on behalf of the corporation, in conducting the affairs of the corporation, has authorized or engaged in conduct in violation of this chapter and that, for the prevention of future criminal activity, the public interest requires the charter of the corporation forfeited and the corporation dissolved or the certificate revoked.

(2) All property, real or personal, including money, used in the course of, intended for use in the course of, derived from, or realized through, conduct in violation of a provision of this chapter is subject to civil forfeiture to the state pursuant to the provisions of Section 97-43-11; provided, however, that a forfeiture of personal property encumbered by a bona fide security interest or real property encumbered by a bona fide mortgage, deed of trust, lien or encumbrance of record shall be subject to the interest of the secured party or subject to the interest of the holder of the mortgage deed of trust, lien of encumbrance of record if such secured party or holder neither had knowledge of or consented to the act or omission.

(3) Property subject to forfeiture may be seized by law enforcement officers upon process issued by any appropriate court having jurisdiction over the property. Seizure without process may be made if:

(a) The seizure is incident to an arrest or a search under a search warrant or an inspection under a lawful administrative inspection;

(b) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding based upon this article;

(4) The Attorney General, any district attorney or any state agency having jurisdiction over conduct in violation of a provision of this chapter may institute civil proceedings under this section. In any action brought under this section, the circuit court shall proceed as soon as practicable to the hearing and determination. Pending final determination, the circuit court may at any time enter such injunctions or restraining orders, or take such actions, including the acceptance of satisfactory performance bonds, as the court may deem proper.

(5) Any aggrieved person may institute a civil proceeding under subsection (1) of this section against any person or enterprise * * * engaging in activity in violation of this chapter. In such proceeding, relief shall be granted in conformity with the principles that govern the granting of injunctive relief from threatened loss or damage in other civil cases, except that no showing of immediate and irreparable injury, loss or damage to the person shall have to be made.

(6) Any person who is injured by reason of any violation of the provisions of this chapter shall have a cause of action against any person or enterprise * * * engaging in activity in violation of this chapter for threefold the actual damages sustained and, when appropriate, punitive damages. Such person shall also recover attorney's fees in the trial and appellate courts and costs of investigation and litigation, reasonably incurred.

(a) The defendant or any injured person may demand a trial by jury in any civil action brought pursuant to this subsection.

(b) Any injured person shall have a right or claim to forfeited property or to the proceeds derived therefrom superior to any right or claim the state has in the same property or proceeds.

(7) The Attorney General may, upon timely application, intervene in any civil action or proceeding brought under subsections (5) or (6) of this section if he certifies that, in his opinion, the action or proceeding is of general public importance. In such action or proceeding, the state shall be entitled to the same relief as if the Attorney General instituted the action or proceeding.

(8) Notwithstanding any other provision of law, a criminal or civil action or proceeding under this chapter may be commenced at any time within five (5) years after the conduct in violation of a provision of this chapter terminates or the cause of action accrues. If a criminal prosecution or civil action or other proceeding is brought, or intervened in, to punish, prevent or restrain any violation of the provisions of this chapter, the running of the period of limitations prescribed by this section with respect to any cause of action arising under subsections (5) or (6) of this section which is based, in whole or in part, upon any matter complained of in any such prosecution, action or proceeding shall be suspended during the pendency of such prosecution, action or proceeding and for two (2) years following its termination.

(9) The application of one (1) civil remedy under any provision of this chapter shall not preclude the application of any other remedy, civil or criminal, under this chapter or any other provision of law. Civil remedies under this chapter are supplemental.

SECTION 3. This act shall take effect and be in force from and after July 1, 2012.