Bill Text: MI HB4222 | 2009-2010 | 95th Legislature | Engrossed
Bill Title: Civil procedure; personal protection orders; victims of posting certain messages on the internet, furnishing obscene publications to minors, or criminal sexual conduct; allow to petition for personal protection orders. Amends sec. 2950a of 1961 PA 236 (MCL 600.2950a). TIE BAR WITH: HB 4221'09
Spectrum: Partisan Bill (Democrat 9-0)
Status: (Passed) 2010-03-25 - Assigned Pa 19'10 With Immediate Effect [HB4222 Detail]
Download: Michigan-2009-HB4222-Engrossed.html
HB-4222, As Passed House, June 16, 2009
SUBSTITUTE FOR
HOUSE BILL NO. 4222
A bill to amend 1961 PA 236, entitled
"Revised judicature act of 1961,"
by amending section 2950a (MCL 600.2950a), as amended by 2001 PA
201.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec.
2950a. (1) Except as provided in subsections (25) and
(26)
(28), (29), and (31), by commencing an independent action to
obtain relief under this section, by joining a claim to an action,
or by filing a motion in an action in which the petitioner and the
individual to be restrained or enjoined are parties, an individual
may petition the family division of circuit court to enter a
personal protection order to restrain or enjoin an individual from
House Bill No. 4222 (H-3) as amended June 16, 2009
engaging
in conduct that is prohibited under section 411h, or 411i,
or
411s of the Michigan
penal code, 1931 PA 328, MCL 750.411h, and
750.411i, and 750.411s. Relief under this subsection shall not be
granted unless the petition alleges facts that constitute stalking
as defined in section 411h or 411i, or [conduct that is prohibited under
] section 411s, of the Michigan penal code, 1931 PA 328, MCL
750.411h, and
750.411i, and 750.411s. Relief may be sought and
granted
under this section subsection
whether or not the individual
to be restrained or enjoined has been charged or convicted under
section
411h, or 411i, or 411s of
the Michigan penal code, 1931 PA
328,
MCL 750.411h, and 750.411i, and 750.411s, for the
alleged
violation.
(2) Except as provided in subsections (28), (29), and (31), by
commencing an independent action to obtain relief under this
section, by joining a claim to an action, or by filing a motion in
an action in which the petitioner and the individual to be
restrained or enjoined are parties, an individual may petition the
family division of circuit court to enter a personal protection
order to restrain or enjoin an individual from engaging in any of
the following:
(a) One or more of the acts listed in subsection (3), if the
respondent has been convicted of a sexual assault of the
petitioner, or the respondent has been convicted of furnishing
obscene material to the petitioner under section 142 of the
Michigan penal code, 1931 PA 328, MCL 750.142, or a substantially
similar law of the United States, another state[, or a foreign country]
or
tribal or military law. Relief under this subdivision shall be
House Bill No. 4222 (H-3) as amended June 16, 2009
granted if the court determines that the respondent has been
convicted of a sexual assault of the petitioner or that the
respondent was convicted of furnishing obscene material to the
petitioner under section 142 of the Michigan penal code, 1931 PA
328, MCL 750.142, or a substantially similar law of the United
States, another state[, or a foreign country] or tribal or military
law.
(b) One or more of the acts listed in subsection (3), if the
petitioner has been subjected to, threatened with, or placed in
reasonable apprehension of sexual assault by the individual to be
enjoined. Relief under this subdivision shall not be granted unless
the petition alleges facts that demonstrate that the respondent has
perpetrated or threatened sexual assault against the petitioner.
Evidence that a respondent has furnished obscene material to a
minor petitioner shall constitute evidence that the respondent has
threatened sexual assault against the petitioner. Relief may be
sought and granted under this subdivision regardless of whether the
individual to be restrained or enjoined has been charged with or
convicted of sexual assault or an offense under section 142 of the
Michigan penal code, 1931 PA 328, MCL 750.142, or a substantially
similar law of the United States, another state[, or a foreign country]
or
tribal or military law.
(3) The court may restrain or enjoin an individual against
whom a protection order is sought under subsection (2) from 1 or
more of the following:
(a) Entering onto premises.
(b) Threatening to sexually assault, kill, or physically
injure petitioner or a named individual.
(c) Purchasing or possessing a firearm.
(d) Interfering with the petitioner's efforts to remove the
petitioner's children or personal property from premises that are
solely owned or leased by the individual to be restrained or
enjoined.
(e) Interfering with the petitioner at the petitioner's place
of employment or education or engaging in conduct that impairs the
petitioner's employment or educational relationship or environment.
(f) Following or appearing within the sight of the petitioner.
(g) Approaching or confronting the petitioner in a public
place or on private property.
(h) Appearing at the petitioner's workplace or residence.
(i) Entering onto or remaining on property owned, leased, or
occupied by the petitioner.
(j) Contacting the petitioner by telephone.
(k) Sending mail or electronic communications to the
petitioner.
(l) Placing an object on, or delivering an object to, property
owned, leased, or occupied by the petitioner.
(m) Engaging in conduct that is prohibited under section 411s
of the Michigan penal code, 1931 PA 328, MCL 750.411s.
(n) Any other specific act or conduct that imposes upon or
interferes with personal liberty or that causes a reasonable
apprehension of violence or sexual assault.
(4) Section 520j of the Michigan penal code, 1931 PA 328, MCL
750.520j, applies in any hearing on a petition for, a motion to
modify or terminate, or an alleged violation of a personal
protection order requested or issued under subsection (2), except
as follows:
(a) The written motion and offer of proof shall be filed at
least 24 hours before a hearing on a petition to issue a personal
protection order or on an alleged violation of a personal
protection order.
(b) The written motion and offer of proof shall be filed at
the same time that a motion to modify or terminate a personal
protection order is filed.
(5) (2)
If the respondent to a petition under this section is
a person who is issued a license to carry a concealed weapon and is
required to carry a weapon as a condition of his or her employment,
a police officer certified by the commission on law enforcement
standards act, 1965 PA 203, MCL 28.601 to 28.616, a sheriff, a
deputy sheriff or a member of the Michigan department of state
police, a local corrections officer, a department of corrections
employee, or a federal law enforcement officer who carries a
firearm during the normal course of his or her employment, the
petitioner shall notify the court of the respondent's occupation
prior
to the issuance of before the personal protection order is
issued. This subsection does not apply to a petitioner who does not
know the respondent's occupation.
(6) (3)
A petitioner may omit his or her
address of residence
from documents filed with the court under this section. If a
petitioner omits his or her address of residence, the petitioner
shall provide the court a mailing address.
(7) (4)
If a court issues or refuses to grant issue
a personal
protection order, the court shall immediately state in writing the
specific
reasons for issuing or refusing to issue a the personal
protection order. If a hearing is held, the court shall also
immediately state on the record the specific reasons for issuing or
refusing to issue a personal protection order.
(8) (5)
A personal protection order shall
not be made mutual.
Correlative separate personal protection orders are prohibited
unless
both parties have properly petitioned the court according to
under subsection (1) or (2).
(9) (6)
A personal protection order is
effective and
immediately enforceable anywhere in this state when signed by a
judge. Upon service, a personal protection order also may be
enforced by another state, an Indian tribe, or a territory of the
United States.
(10) (7)
The court shall designate the law
enforcement agency
that is responsible for entering the personal protection order into
the L.E.I.N.
(11) (8)
A personal protection order issued
under this section
shall
include all of the following, and to the extent practicable
contained
in a single form:
(a) A statement that the personal protection order has been
entered to enjoin or restrain conduct listed in the order and that
violation of the personal protection order will subject the
individual restrained or enjoined to 1 or more of the following:
(i) If the respondent is 17 years of age or more older,
immediate arrest and the civil and criminal contempt powers of the
court. ,
and that if he or she If the
respondent is found guilty of
criminal contempt, he or she shall be imprisoned for not more than
93 days and may be fined not more than $500.00.
(ii) If the respondent is less than 17 years of age, to
immediate
apprehension or being taken into custody , and subject to
the dispositional alternatives listed in section 18 of chapter XIIA
of the probate code of 1939, 1939 PA 288, MCL 712A.18.
(iii) If the respondent violates the personal protection order
in
a jurisdiction other than this state, the respondent is subject
to
the enforcement procedures and
penalties of the state, Indian
tribe, or United States territory under whose jurisdiction the
violation occurred.
(b) A statement that the personal protection order is
effective and immediately enforceable anywhere in this state when
signed by a judge, and that upon service, a personal protection
order also may be enforced by another state, an Indian tribe, or a
territory of the United States.
(c) A statement listing each type of conduct enjoined.
(d) An expiration date stated clearly on the face of the
order.
(e) A statement that the personal protection order is
enforceable anywhere in Michigan by any law enforcement agency.
(f) The law enforcement agency designated by the court to
enter the personal protection order into the L.E.I.N.
(g) For an ex parte order, a statement that the individual
restrained or enjoined may file a motion to modify or rescind the
personal protection order and request a hearing within 14 days
after
the individual restrained or enjoined has been served or has
received
is served or receives actual notice of the personal
protection order and that motion forms and filing instructions are
available from the clerk of the court.
(12) (9)
An ex parte personal protection
order shall not be
issued and effective without written or oral notice to the
individual enjoined or his or her attorney unless it clearly
appears from specific facts shown by verified complaint, written
motion, or affidavit that immediate and irreparable injury, loss,
or damage will result from the delay required to effectuate notice
or that the notice will precipitate adverse action before a
personal protection order can be issued.
(13) (10)
A personal protection order issued
under subsection
(9)
(12) is valid for not less than 182 days. The individual
restrained or enjoined may file a motion to modify or rescind the
personal protection order and request a hearing under the Michigan
court rules. The motion to modify or rescind the personal
protection order shall be filed within 14 days after the order is
served
or after the individual restrained or enjoined has received
receives actual notice of the personal protection order unless good
cause is shown for filing the motion after 14 days have elapsed.
(14) (11)
Except as otherwise provided in
this subsection, the
court shall schedule a hearing on the motion to modify or rescind
the
ex parte personal protection order within 14 days after the
filing
of the motion to modify or rescind is filed.
If the
respondent
is a person described in subsection (2) (5) and the
personal protection order prohibits him or her from purchasing or
possessing a firearm, the court shall schedule a hearing on the
motion to modify or rescind the ex parte personal protection order
within
5 days after the filing of the motion to modify or rescind
is filed.
(15) (12)
The clerk of the court that issues
a personal
protection order shall do all of the following immediately upon
issuance without requiring proof of service on the individual
restrained or enjoined:
(a) File a true copy of the personal protection order with the
law enforcement agency designated by the court in the personal
protection order.
(b)
Provide the petitioner with not less than 2 or more true
copies of the personal protection order.
(c)
If respondent the individual
restrained or enjoined is
identified in the pleadings as a law enforcement officer, notify
the
officer's employing law enforcement agency about of the
existence of the personal protection order.
(d)
If the personal protection order prohibits the respondent
individual restrained or enjoined from purchasing or possessing a
firearm, notify the concealed weapon licensing board in
respondent's
the individual's county of residence about of the
existence and content of the personal protection order.
(e)
If the respondent individual
restrained or enjoined is
identified in the pleadings as a department of corrections
employee,
notify the state department of corrections about of the
existence of the personal protection order.
(f)
If the respondent individual
restrained or enjoined is
identified
in the pleadings as being a person who may have access
to information concerning the petitioner or a child of the
petitioner
or respondent individual and that information is
contained in friend of the court records, notify the friend of the
court
for the county in which the information is located about of
the existence of the personal protection order.
(16) (13)
The clerk of the a court
that issues a personal
protection order shall inform the petitioner that he or she may
take a true copy of the personal protection order to the law
enforcement
agency designated by the court in under subsection (7)
(10) to be immediately entered into the L.E.I.N.
(17) (14)
The law enforcement agency that
receives a true copy
of
the a personal protection order under subsection (12)
or (13)
(15) or (16) shall immediately, without requiring proof of service,
enter the personal protection order into the L.E.I.N.
(18) (15)
A personal protection order issued
under this
section
shall be served personally, or by registered or certified
mail, return receipt requested, delivery restricted to the
addressee at the last known address or addresses of the individual
restrained
or enjoined or by any other manner provided in method
allowed by the Michigan court rules. If the individual restrained
or enjoined has not been served, a law enforcement officer or clerk
of the court who knows that a personal protection order exists may,
at any time, serve the individual restrained or enjoined with a
true copy of the order or advise the individual restrained or
enjoined
about of the existence of the personal protection order,
the specific conduct enjoined, the penalties for violating the
order, and where the individual restrained or enjoined may obtain a
copy
of the order. If the respondent individual
restrained or
enjoined is less than 18 years of age, the parent, guardian, or
custodian
of that the individual shall also be served personally or
by registered or certified mail, return receipt requested, delivery
restricted to the addressee at the last known address or addresses
of
the parent, guardian, or custodian. of the individual restrained
or
enjoined. A proof of service or
proof of oral notice shall be
filed with the clerk of the court issuing the personal protection
order. This subsection does not prohibit the immediate
effectiveness of a personal protection order or immediate
enforcement
under subsection (18) or (19) (21)
or (22).
(19) (16)
The clerk of the court that issued a personal
protection order shall immediately notify the law enforcement
agency that received the personal protection order under subsection
(12)
(15) or (13) (16) if either or both of
the following occurs
occur:
(a)
The clerk of the court has received receives proof that
the individual restrained or enjoined has been served.
(b) The personal protection order is rescinded, modified, or
extended by court order.
(20) (17)
The law enforcement agency that
receives information
under
subsection (16) (19) shall enter the information or cause the
information to be entered into the L.E.I.N.
(21) (18)
Subject to subsection (19) (22),
a personal
protection order is immediately enforceable anywhere in this state
by any law enforcement agency that has received a true copy of the
order, is shown a copy of it, or has verified its existence on the
L.E.I.N.
(22) (19)
If the individual restrained or
enjoined by a
personal
protection order has not been served, the
a law
enforcement agency or officer responding to a call alleging a
violation
of a the personal protection order shall serve the
individual restrained or enjoined with a true copy of the order or
advise
the individual restrained or enjoined about of the
existence
of the personal protection order, the specific conduct enjoined,
the penalties for violating the order, and where the individual
restrained or enjoined may obtain a copy of the order. The law
enforcement officer shall enforce the personal protection order and
immediately enter or cause to be entered into the L.E.I.N. that the
individual restrained or enjoined has actual notice of the personal
protection order. The law enforcement officer also shall file a
proof of service or proof of oral notice with the clerk of the
court
issuing that issued the personal protection order. If the
individual restrained or enjoined has not received notice of the
personal protection order, the individual restrained or enjoined
shall be given an opportunity to comply with the personal
protection order before the law enforcement officer makes a
custodial arrest for violation of the personal protection order.
Failure to immediately comply with the personal protection order is
grounds for an immediate custodial arrest. This subsection does not
preclude an arrest under section 15 or 15a of chapter IV of the
code of criminal procedure, 1927 PA 175, MCL 764.15 and 764.15a, or
a proceeding under section 14 of chapter XIIA of the probate code
of 1939, 1939 PA 288, MCL 712A.14.
(23) (20)
An individual 17 years of age or more
older who
refuses or fails to comply with a personal protection order issued
under this section is subject to the criminal contempt powers of
the court and, if found guilty of criminal contempt, shall be
imprisoned for not more than 93 days and may be fined not more than
$500.00. An individual less than 17 years of age who refuses or
fails to comply with a personal protection order issued under this
section is subject to the dispositional alternatives listed in
section 18 of chapter XIIA of the probate code of 1939, 1939 PA
288,
MCL 712A.18. The criminal penalty provided for under this
section may be imposed in addition to any penalty that may be
imposed for any other criminal offense arising from the same
conduct.
(24) (21)
An individual who knowingly and
intentionally makes
a
false statement to the a court in support of his or her petition
for a personal protection order is subject to the contempt powers
of the court.
(25) (22)
A personal protection order issued
under this
section is also enforceable under chapter XIIA of the probate code
of 1939, 1939 PA 288, MCL 712A.1 to 712A.32, and section 15b of
chapter IV of the code of criminal procedure, 1927 PA 175, MCL
764.15b.
(26) (23)
A personal protection order issued
under this
section may enjoin or restrain an individual from purchasing or
possessing a firearm.
(27) (24)
A personal protection order issued
under this
section is also enforceable under chapter 17.
(28) (25)
A court shall not issue a personal
protection order
that restrains or enjoins conduct described in subsection (1) or
(3) if any of the following apply:
(a) The respondent is the unemancipated minor child of the
petitioner.
(b) The petitioner is the unemancipated minor child of the
respondent.
(c) The respondent is a minor child less than 10 years of age.
(29) (26)
If the respondent is less than 18
years of age old,
issuance of a personal protection order under this section is
subject to chapter XIIA of the probate code of 1939, 1939 PA 288,
MCL 712A.1 to 712A.32.
(30) (27)
A personal protection order that
is issued before
March 1, 1999 is not invalid on the ground that it does not comply
with 1 or more of the requirements added by 1998 PA 476.
(31) (28)
A court shall not issue a personal
protection order
under this section if the petitioner is a prisoner. If a personal
protection order is issued in violation of this subsection, a court
shall rescind the personal protection order upon notification and
verification that the petitioner is a prisoner.
(32) (29)
As used in this section:
(a) "Convicted" means 1 of the following:
(i) The subject of a judgment of conviction or a probation
order entered in a court that has jurisdiction over criminal
offenses, including a tribal court or a military court.
(ii) Assigned to youthful trainee status under sections 11 to
15 of chapter II of the code of criminal procedure, 1927 PA 175,
MCL 762.11 to 762.15, if the individual's status of youthful
trainee is revoked and an adjudication of guilt is entered.
(iii) The subject of an order of disposition entered under
section 18 of chapter XIIA of the probate code of 1939, 1939 PA
288, MCL 712A.18, that is open to the general public under section
28 of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL
712A.28.
(iv) The subject of an order of disposition or other
adjudication in a juvenile matter in another state or country.
(b) (a)
"Federal law enforcement
officer" means an officer or
agent employed by a law enforcement agency of the United States
government whose primary responsibility is the enforcement of laws
of the United States.
(c) (b)
"L.E.I.N." means the law
enforcement information
network
administered under the L.E.I.N. C.J.I.S.
policy council
act, of
1974, 1974 PA 163, MCL 28.211 to 28.216 28.215.
(d) (c)
"Personal protection
order" means an injunctive order
issued by the circuit court or the family division of circuit court
restraining
or enjoining conduct prohibited under section 411h or
411i
of the Michigan penal code, 1931 PA 328, MCL 750.411h and
750.411i
subsection (1) or (3).
(e) (d)
"Prisoner" means a person
subject to incarceration,
detention, or admission to a prison who is accused of, convicted
of, sentenced for, or adjudicated delinquent for violations of
federal, state, or local law or the terms and conditions of parole,
probation, pretrial release, or a diversionary program.
(f) "Sexual assault" means an act, attempted act, or
House Bill No. 4222 (H-3) as amended June 16, 2009
conspiracy to engage in an act of criminal conduct as defined in
section 520b, 520c, 520d, 520e, or 520g of the Michigan penal code,
1931 PA 328, MCL 750.520b, 750.520c, 750.520d, 750.520e, and
750.520g, or an offense under a law of the United States, another
state[, or a foreign country] or tribal or military law that is
substantially
similar to an offense listed in this subdivision.
Enacting section 1. This amendatory act does not take effect
unless House Bill No. 4221 of the 95th Legislature is enacted into
law.
