June 25, 2008, Introduced by Reps. Ebli, Condino, Sheltrown, Angerer, Corriveau, Young, Bauer, Robert Jones, Vagnozzi, Mayes, Valentine, Polidori and Rick Jones and referred to the Committee on Judiciary.
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), 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 conduct
that is prohibited under section 411h or 411i of the Michigan penal
code, 1931 PA 328, MCL 750.411h and 750.411i. Relief shall not be
granted
unless the petition alleges facts 1 or both of the
following:
(a) Facts that constitute stalking as defined in section 411h
or 411i of the Michigan penal code, 1931 PA 328, MCL 750.411h and
750.411i.
Relief may be sought and granted under this section
subdivision whether or not the individual to be restrained or
enjoined has been charged or convicted under section 411h or 411i
of the Michigan penal code, 1931 PA 328, MCL 750.411h and 750.411i,
for the alleged violation.
(b) That the respondent has been convicted of committing an
offense under 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, and that the petitioner was the victim of
the offense.
(2) If the respondent to a petition for a personal protection
order 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 before the issuance of the
personal protection order. This subsection does not apply to a
petitioner who does not know the respondent's occupation.
(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.
(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.
(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
subsection (1).
(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.
(7) The court shall designate the law enforcement agency that
is responsible for entering the personal protection order into the
L.E.I.N.
(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 is found guilty of criminal contempt,
he
or she shall be imprisoned imprisonment for not more than 93
days
and may be fined a fine of 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.
(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.
(10) A personal protection order issued under subsection (9)
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.
(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) 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.
(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 fewer than
2 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 the
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.
(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)
to be immediately entered into the L.E.I.N.
(14) The law enforcement agency that receives a true copy of
the
a personal protection order under subsection (12) or
(13) shall
immediately, without requiring proof of service, enter the personal
protection order into the L.E.I.N.
(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 orally notify 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).
(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) or
(13)
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.
(17) The law enforcement agency that receives information
under subsection (16) shall enter the information or cause the
information to be entered into the L.E.I.N.
(18) Subject to subsection (19), 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.
(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 orally notify 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.
(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.
(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.
(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.
(23) A personal protection order issued under this section may
enjoin or restrain an individual from purchasing or possessing a
firearm.
(24) A personal protection order issued under this section is
also enforceable under chapter 17.
(25) A court shall not issue a personal protection order that
restrains or enjoins conduct described in subsection (1) 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.
(26) If the respondent is less than 18 years of age, 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.
(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.
(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.
(29) As used in this section:
(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.
(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.
(c) "Personal protection order" means an injunctive order
issued
by the circuit court, or the family
division of circuit
court, or a district 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.
(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.