HB-6403, As Passed House, September 21, 2006

SUBSTITUTE FOR

HOUSE BILL NO. 6403

                     (As amended September 20, 2006)

     A bill to amend 1961 PA 236, entitled

"Revised judicature act of 1961,"

(MCL 600.101 to 600.9947) by adding section 2976.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 2976. (1) Except as provided in subsection (21), a

school, after approval by the [superintendent or his or her designee,]

 may commence an

action in the circuit court requesting the issuance of a student

body protection order to restrain or enjoin an individual from

entering on or coming within 1,000 feet of school property.

     (2) [WITHIN 7 DAYS OF THE COMMENCEMENT OF THE ACTION,] A court

shall issue a student body protection order under

this section if the court determines by clear and convincing

evidence, after notice and a hearing, that the respondent has, on

or within 1,000 feet of school property, committed an act described

House Bill No. 6403 (H-1) as amended September 20, 2006  (1 of 2)

in section 2 of the sex offenders registration act, 1994 PA 295,

MCL 28.722[, OR IF THE INDIVIDUAL IS NOT A STUDENT OF THE DISTRICT

SEEKING THE STUDENT BODY PROTECTION ORDER, ANY OF THE FOLLOWING:

     (A) section 7401 of the public health code, 1978 pa 368, MCL 333.7401 (Manufacturing, creating, delivering, or possessing with intent to manufacture, create, or deliver a controlled substance, prescription form). 

     (B) section 7401a of the public health code, 1978 pa 368, MCL 333.7401a (Delivery of controlled substance).

     (C) section 7401b of the public health code, 1978 pa 368, MCL 333.7401b (Manufacture, delivery, or possession of GHB). 

     (D) section 7401c of the public health code, 1978 pa 368, MCL 333.7401c (Manufacture of controlled substance - operating a drug lab).

     (E) section 7402 of the public health code, 1978 pa 368, MCL 333.7402 (Creating, manufacturing, delivering, or possessing with intent to deliver counterfeit substance or controlled substance analogue). 

     (F) section 7410a of the public health code, 1978 pa 368, MCL 333.7410a (Delivery or intent to deliver controlled substance in or within public or private park).

     (G) section 7416 of the public health code, 1978 pa 368, MCL 333.7416 (Recruiting, inducing, soliciting, or coercing minor to commit felony involving drugs)].

     (3) A court shall not deny a request for a student body

protection order under this section solely because the respondent

has not been charged with or convicted of an offense for the

conduct alleged in the complaint or because there is no police

report related to the conduct alleged in the complaint.

     (4) If a court determines, after notice and a hearing, that a

student body protection order is warranted under this section and

that 1 or more of the following conditions apply, the court may, in

its discretion, tailor the student body protection order as

necessary to balance the rights of the respondent and the safety

and welfare of the school's students:

     (a) The respondent is a student of the school.

     (b) The respondent is a parent of a student of the school.

     (c) The respondent is a registered voter in this state and his

or her polling place is located on school property.

     (5) If a court denies a request for a student body protection

order under this section, it shall immediately state in writing the

specific reasons for the denial. If the denial is made at the

hearing, the court shall also immediately state on the record the

specific reasons for its denial.

     (6) A student body protection order is effective and

immediately enforceable when signed by a judge.

     (7) The court shall designate a law enforcement agency to be

responsible for entering the student body protection order into the

law enforcement information network as provided by the C.J.I.S.

policy council act, 1974 PA 163, MCL 28.211 to 28.215.

     (8) A student body protection order issued under this section

shall include all of the following, to the extent practicable in a

single document:

     (a) A statement that the student body protection order has

been entered to restrain or enjoin conduct listed in the order and

that violation of the student body protection order will subject

the respondent to 1 of the following:

     (i) If the respondent is 17 years of age or older, immediate

arrest and the civil and criminal contempt powers of the court,

and, if found guilty of criminal contempt, imprisonment for not

more than 93 days and a fine of not more than $500.00.

     (ii) If the respondent is less than 17 years of age, immediate

apprehension or being taken into custody and the dispositional

alternatives listed in section 18 of chapter XIIA of the probate

code of 1939, 1939 PA 288, MCL 712A.18.

     (b) A statement that the student body protection order is

effective and immediately enforceable when signed by a judge.

     (c) A statement of the conduct enjoined.

     (d) A clearly stated expiration date.

     (e) A statement that the student body protection order is

enforceable by any appropriate law enforcement agency.

     (f) The law enforcement agency designated by the court to

enter the student body protection order into the law enforcement

information network.

     (9) The clerk of a court that issues a student body protection

order under this section shall do both of the following immediately

on issuance and without requiring proof of service on the

respondent:

     (a) File a true copy of the student body protection order with

the law enforcement agency designated in the order.

     (b) Provide the petitioner with 2 or more true copies of the

student body protection order.

     (10) The clerk of a court that issues a student body

protection order under this section shall inform the petitioner

that he or she may take a true copy of the student body protection

order to the law enforcement agency designated in the student body

protection order for immediate entry into the law enforcement

information network.

     (11) A law enforcement agency that receives a true copy of a

student body protection order under subsection (9) or (10) shall

immediately and without requiring proof of service enter the

student body protection order into the law enforcement information

network as provided by the C.J.I.S. policy council act, 1974 PA

163, MCL 28.211 to 28.215.

     (12) A student body protection order issued under this section

shall be served personally; by registered or certified mail, return

receipt requested, delivery restricted to the addressee at the last

known address or addresses of the respondent; or by any other

method allowed by the Michigan court rules. If the respondent has

not been served, a law enforcement officer or clerk of the court

who knows that a student body protection order exists may, at any

time, serve the respondent with a true copy of the student body

protection order or advise the respondent about the existence of

the student body protection order, the specific conduct enjoined,

the penalties for violating the student body protection order, and

where the respondent may obtain a copy of the student body

protection order. If the respondent is less than 18 years of age,

the parent, guardian, or custodian of the respondent shall also be

served personally; 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; or by

any other method allowed by the Michigan court rules. A proof of

service or proof of oral notice shall be filed with the clerk of

the court that issued the student body protection order. This

subsection does not prohibit the immediate effectiveness of a

student body protection order or its immediate enforcement under

subsections (15) and (16).

     (13) The clerk of a court that issued a student body

protection order under this section shall immediately notify the

law enforcement agency that received the student body protection

order under subsection (9) or (10) if either of the following

occurs:

     (a) The clerk receives proof that the respondent has been

served.

     (b) The student body protection order is rescinded, modified,

or extended by court order.

     (14) A law enforcement agency that receives information under

subsection (13) shall enter the information or cause the

information to be entered into the law enforcement information

network as provided by the C.J.I.S. policy council act, 1974 PA

163, MCL 28.211 to 28.215.

     (15) Subject to subsection (16), a student body protection

order is immediately enforceable by any law enforcement agency that

has received a true copy of the student body protection order, is

shown a copy of it, or has verified its existence on the law

enforcement information network as provided by the C.J.I.S. policy

council act, 1974 PA 163, MCL 28.211 to 28.215.

     (16) If the respondent has not been served, a law enforcement

agency or officer who responds to a call alleging a violation of a

student body protection order issued under this section shall serve

the respondent with a true copy of the student body protection

order or advise the respondent about the existence of the student

body protection order, the specific conduct enjoined, the penalties

for violating the student body protection order, and where the

respondent may obtain a copy of the student body protection order.

The law enforcement officer shall enforce the student body

protection order and immediately enter or have entered into the law

enforcement information network that the respondent has actual

notice of the student body protection order. The law enforcement

officer also shall file a proof of service or proof of oral notice

with the clerk of the court that issued the student body protection

order. If the respondent has not received notice of the student

body protection order, the respondent shall be given an opportunity

to comply with the student body protection order before the law

enforcement officer makes a custodial arrest for violation of the

student body protection order. Failure to immediately comply with

the student body 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.

     (17) An individual who is 17 years of age or older and who

refuses or fails to comply with a student body protection order

issued under this section is subject to the criminal contempt

powers of the court and, if found guilty, shall be imprisoned for

not more than 93 days and may be fined not more than $500.00. An

individual who is less than 17 years of age and who refuses or

fails to comply with a student body 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. A criminal penalty may be imposed under this

section in addition to any penalty that may be imposed for another

criminal offense arising from the same conduct.

     (18) An individual who knowingly and intentionally makes a

false statement to a court in support of his or her petition for a

student body protection order is subject to the contempt powers of

the court.

     (19) A student body 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.

     (20) A student body protection order issued under this section

is also enforceable under chapter 17.

     (21) A court shall not issue a student body protection order

under this section if the respondent is less than 10 years of age.

     (22) If the respondent is less than 18 years of age, issuance

of a student body 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.

     (23) As used in this section, "school" and "school property"

mean those terms as defined in section 33 of the sex offenders

registration act, 1994 PA 295, MCL 28.733.

     Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted.

     Enacting section 2. This amendatory act does not take effect

unless all of the following bills of the 93rd Legislature are

enacted into law:

     (a) House Bill No. 6404.

     (b) House Bill No. 6405.

     (c) House Bill No. 6406.