Bill Text: MI HB4622 | 2015-2016 | 98th Legislature | Introduced

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Bill Title: Civil procedure; personal protection orders; personal protection orders for victims of human trafficking; provide for. Amends sec. 2950a of 1961 PA 236 (MCL 600.2950a).

Spectrum: Partisan Bill (Democrat 13-0)

Status: (Introduced - Dead) 2015-05-20 - Printed Bill Filed 05/20/2015 [HB4622 Detail]

Download: Michigan-2015-HB4622-Introduced.html

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HOUSE BILL No. 4622

 

May 19, 2015, Introduced by Reps. Hovey-Wright, Plawecki, Chirkun, Greig, Darany, Faris, Cochran, Chang, Geiss, Irwin, Smiley, Sarah Roberts and Brinks 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 2010 PA

 

19.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 2950a. (1) 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 conduct

 

that is prohibited under section 411h, 411i, or 411s or chapter

 

LXVIIA of the Michigan penal code, 1931 PA 328, MCL 750.411h,

 

750.411i, and 750.411s, and 750.462a to 750.462h. Relief A court

 

shall not grant 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 or chapter LXVIIA, of the Michigan penal code,

 

1931 PA 328, MCL 750.411h, 750.411i, and 750.411s, and 750.462a to

 

750.462h. Relief may be sought and granted under this subsection

 

whether or not the individual to be restrained or enjoined has been

 

charged or convicted under section 411h, 411i, or 411s or chapter

 

LXVIIA of the Michigan penal code, 1931 PA 328, MCL 750.411h,

 

750.411i, and 750.411s, and 750.462a to 750.462h, 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 A court shall grant

 

relief under this subdivision shall be 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 A court shall not grant 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 is 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 must 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 must be filed

 

at the same time that a motion to modify or terminate a personal

 

protection order is filed.

 

     (5) If the respondent to a petition under this section is a

 

person an individual 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 before the personal protection order is

 

issued. This subsection does not apply to a petitioner who does not

 

know the respondent's occupation.

 

     (6) 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) If a court issues or refuses to issue a personal

 

protection order, the court shall immediately state in writing the

 

specific reasons for issuing or refusing to issue 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) A court shall not issue a mutual personal protection

 

order. shall not be made mutual. Correlative separate personal

 

protection orders are prohibited unless both parties have properly

 

petitioned the court under subsection (1) or (2).

 

     (9) A personal protection order is effective and immediately

 

enforceable anywhere in this state when after being 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) The court that issues a personal protection order shall

 

designate the a law enforcement agency that is responsible for

 

entering the personal protection order into the L.E.I.N.

 

     (11) A personal protection order issued under this section

 

shall must include all of the following, to the extent practicable

 

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 older, immediate

 

arrest and the civil and criminal contempt powers of the court. If

 

the respondent is found guilty of criminal contempt, he or she

 

shall must 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, 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.

 

     (iii) If the respondent violates the personal protection order

 

in a jurisdiction other than this state, 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

 

after being signed by a judge, and that upon on 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 this state by any law enforcement

 

agency.

 

     (f) The name of 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 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) An ex parte A court shall not issue a personal protection

 

order shall not be issued and effective ex parte without written or

 

oral notice to the individual enjoined or his or her attorney

 

unless it clearly appears from specific facts shown by a 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) A personal protection order issued under subsection (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 A motion to modify or rescind the personal protection

 

order shall must be filed within 14 days after the order is served

 

or after the individual restrained or enjoined receives actual

 

notice of the personal protection order unless good cause is shown

 

for filing the motion after 14 days have elapsed.

 

     (14) Except as otherwise provided in this subsection, the a

 

court shall schedule a hearing on the a motion to modify or rescind

 

the an ex parte personal protection order within 14 days after the

 

motion to modify or rescind is filed. If the respondent is a person

 

described in subsection (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

 

motion to modify or rescind is filed.

 

     (15) 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 2 or more true copies of the

 

personal protection order.

 

     (c) If the individual restrained or enjoined is identified in

 

the pleadings as a law enforcement officer, notify the officer's

 

employing law enforcement agency of the existence of the personal

 

protection order.

 

     (d) If the personal protection order prohibits the individual

 

restrained or enjoined from purchasing or possessing a firearm,

 

notify the concealed weapon licensing board in the individual's

 

county of residence of the existence and content of the personal

 

protection order.

 

     (e) If the individual restrained or enjoined is identified in

 

the pleadings as a department of corrections employee, notify the

 

department of corrections of the existence of the personal

 

protection order.

 

     (f) If the individual restrained or enjoined is identified in

 

the pleadings as a person who may have access to information

 

concerning the petitioner or a child of the petitioner or

 

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 of the existence of the personal protection

 

order.

 

     (16) The clerk of 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 under subsection (10) to be immediately

 

entered into the L.E.I.N.

 

     (17) The law enforcement agency that receives a true copy of a

 

personal protection order under subsection (15) or (16) shall

 

immediately, without requiring proof of service, enter the personal

 

protection order into the L.E.I.N.

 

     (18) A personal protection order issued under this section

 

shall must 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 individual restrained or

 

enjoined or by any other 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 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

 

individual restrained or enjoined is less than 18 years of age, the

 

parent, guardian, or custodian of the individual shall must 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. A

 

proof of service or proof of oral notice shall must 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

 

(21) or (22).

 

     (19) 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 (15) or

 

(16) if either or both of the following occur:

 

     (a) The clerk of the court 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) The law enforcement agency that receives information

 

under subsection (19) shall enter the information or cause the

 

information to be entered into the L.E.I.N.

 

     (21) Subject to subsection (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) If the individual restrained or enjoined by a personal

 

protection order has not been served, a law enforcement agency or

 

officer responding to a call alleging a violation of 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 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 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 must 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) An individual 17 years of age or 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 must 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 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) An individual who knowingly and intentionally makes a

 

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

 

personal protection order is subject to the contempt powers of the

 

court.

 

     (25) 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) A personal protection order issued under this section may

 

enjoin or restrain an individual from purchasing or possessing a

 

firearm.

 

     (27) A personal protection order issued under this section is

 

also enforceable under chapter 17.

 

     (28) 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) If the respondent is less than 18 years 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) A personal protection order 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) 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) 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) "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) "L.E.I.N." means the law enforcement information network

 

administered under the C.J.I.S. policy council act, 1974 PA 163,

 

MCL 28.211 to 28.215.

 

     (d) "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 subsection (1) or

 

(3).

 

     (e) "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

 

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 takes effect 90 days

 

after the date it is enacted into law.