S.B. 114: ENROLLED ANALYSIS - EXPEDITED PPO HEARING FOR POLICE
Senate Bill 114 (as enrolled) - PUBLIC ACT 115 of 1997
Sponsor: Senator Michael J. Bouchard
Senate Committee: Judiciary
House Committee: Judiciary
RATIONALE
The Revised Judicature Act (RJA) specifies procedures for a person to petition the circuit court to issue a personal protection order (PPO) to restrain or enjoin a spouse, a former spouse, an individual with whom the petitioner has had a child in common, an individual with whom the petitioner has or has had a dating relationship, or an individual residing or having resided in the same household as the petitioner from engaging in certain activities. The RJA also specifies procedures for a person to petition the court to issue a PPO to restrain or enjoin an individual from engaging in conduct that would constitute stalking or aggravated stalking. Both types of PPOs may prohibit the enjoined or restrained person from purchasing or possessing a firearm.
The RJA's personal protection order provisions allow an ex parte PPO to be issued and effective without notice to the individual restrained or enjoined or that person's attorney if it appears from specific facts that immediate and irreparable injury, loss, or damage will result from the delay required to effectuate notice or that notice will precipitate adverse action before a PPO can be issued. The RJA provides that an ex parte PPO is valid for at least 182 days, but that the restrained or enjoined individual may file a motion to modify or rescind the PPO and request a hearing. A motion to modify or rescind a PPO must be filed within 14 days after the order is served or after the restrained or enjoined individual receives actual notice of the PPO, and the court must schedule a hearing on the motion to modify or rescind within 14 days after the motion is filed.
Some people feel that the personal protection order provisions can cause problems when the respondent in an ex parte PPO is a police officer or other person who carries a firearm during the course of his or her employment. They believe that, if an officer is the respondent in an ex parte motion to issue a PPO, the RJA should provide for an expedited hearing on a motion to modify or rescind the order and that a petitioner seeking a PPO should be required to notify the court of the respondent's occupation if he or she is someone who carries a firearm during the course of employment.
CONTENT
The bill amended the Revised Judicature Act to provide that, if the respondent in an ex parte motion to issue a domestic violence or stalking personal protection order is a person who has a license to carry a concealed weapon and is required to carry a weapon as a condition of employment, a police officer certified by the Michigan Law Enforcement Training Council Act, 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 employment, the petitioner must notify the court of the respondent's occupation prior to the issuance of the PPO. The requirement does not apply if the petitioner does not know the respondent's occupation. If the respondent has one of those occupations and the PPO prohibits him or her from purchasing or possessing a firearm, the court must schedule a hearing on the motion within five days after its filing.
ARGUMENTS
(Please note: The arguments contained in this analysis originate from sources outside the Senate Fiscal Agency. The Senate Fiscal Agency neither supports nor opposes legislation.)
Supporting Argument
A series of 1994 public acts streamlined the procedures for securing a PPO and added specific activities that may be enjoined or restrained, including the purchase or possession of a firearm. Since those employed in law enforcement may routinely carry a firearm in the course of employment, a PPO prohibiting an officer from possessing a weapon could cause an unintended hardship, especially if the judge is not informed of the occupation of the person to be restrained by the PPO. At least one such instance reportedly occurred when a Lapeer County judge issued an ex parte PPO prohibiting an Oakland County sheriff's deputy from possessing a weapon. In this case, the judge apparently was unaware of the occupation of the person being restrained by the PPO, but later amended the order so that the weapons restriction applied only in Lapeer County. While the RJA provides for a quick hearing on motions to modify or rescind an ex parte PPO, the Act should allow an expedited hearing if a police officer is limited in his or her activities to the point of not being able to perform his or her duties as a result of a PPO's restrictions.
In addition, although PPOs can be an effective tool to provide protection to some people, a PPO should not cause undue hardship to the person subject to it. Since a judge should have access to all relevant information when deciding whether to issue a PPO, it is appropriate to require notification of the court when a person to be restrained is employed in law enforcement. If the Lapper County judge in the case discussed above had been informed of the deputy's occupation at the time the PPO was sought, the order could have limited the weapons restriction from the date of the PPO's issuance, rather than forcing the deputy to seek the modification at some later date.
- Legislative Analyst: P. Affholter
FISCAL IMPACT
The bill will have no fiscal impact on State or local government.
- Fiscal Analyst: B. Bowerman
A9798\S114EA
This analysis was prepared by nonpartisan Senate staff for use by the Senate in its deliberations and does not constitute an official statement of legislative intent.