HOUSE BILL No. 4498

 

 

April 24, 2019, Introduced by Reps. Rendon, Chirkun, Kuppa, Crawford, Sowerby, Peterson, Cherry, Hertel, Elder, Pagan, Warren, Brann and Hood and referred to the Committee on Judiciary.

 

     A bill to amend 1961 PA 236, entitled

 

"Revised judicature act of 1961,"

 

by amending section 2950 (MCL 600.2950), as amended by 2018 PA 146.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 2950. (1) Except as otherwise provided in subsections

 

(26) and (27), 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 a spouse, a former spouse, an

 

individual with whom he or she has had a child in common, an

 

individual with whom he or she has or has had a dating

 

relationship, or an individual residing or having resided in the

 

same household as the petitioner from doing 1 or more of the

 

following:

 

     (a) Entering onto premises.

 

     (b) Assaulting, attacking, beating, molesting, or wounding a

 

named individual.

 

     (c) Threatening to kill or physically injure a named

 

individual.

 

     (d) Removing minor children from the individual having legal

 

custody of the children, except as otherwise authorized by a

 

custody or parenting time order issued by a court of competent

 

jurisdiction.

 

     (e) Purchasing or possessing a firearm.

 

     (f) Interfering with petitioner's efforts to remove

 

petitioner's children or personal property from premises that are

 

solely owned or leased by the individual to be restrained or

 

enjoined.

 

     (g) Interfering with petitioner at petitioner's place of

 

employment or education or engaging in conduct that impairs

 

petitioner's employment or educational relationship or environment.

 

     (h) If the petitioner is a minor who has been the victim of

 

sexual assault, as that term is defined in section 2950a, by the

 

respondent and if the petitioner is enrolled in a public or

 

nonpublic school that operates any of grades K to 12, attending

 

school in the same building as the petitioner.

 

     (i) Having access to information in records concerning a minor

 

child of both petitioner and respondent that will inform respondent

 

about the address or telephone number of petitioner and

petitioner's minor child or about petitioner's employment address.

 

     (j) 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.

 

     (k) Any of the following with the intent to cause the

 

petitioner mental distress or to exert control over the petitioner

 

with respect to an animal in which the petitioner has an ownership

 

interest:

 

     (i) Injuring, killing, torturing, neglecting, or threatening

 

to injure, kill, torture, or neglect the animal. A restraining

 

order that enjoins conduct under this subparagraph does not

 

prohibit the lawful killing or other use of the animal as described

 

in section 50(11) 50(12) of the Michigan penal code, 1931 PA 328,

 

MCL 750.50.

 

     (ii) Removing the animal from the petitioner's possession.

 

     (iii) Retaining or obtaining possession of the animal.

 

     (l) Any other specific act or conduct that imposes upon or

 

interferes with personal liberty or that causes a reasonable

 

apprehension of violence.

 

     (2) If the respondent 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 licensed or

 

certified by the Michigan commission on law enforcement standards

 

act, 1965 PA 203, MCL 28.601 to 28.615, a sheriff, a deputy sheriff

 

or a member of the Michigan department of state police, a local

 

corrections officer, 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 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 with a mailing address.

 

     (4) The court shall issue a personal protection order under

 

this section if the court determines that there is reasonable cause

 

to believe that the individual to be restrained or enjoined may

 

commit 1 or more of the acts listed in subsection (1). In

 

determining whether reasonable cause exists, the court shall

 

consider all of the following:

 

     (a) Testimony, documents, or other evidence offered in support

 

of the request for a personal protection order.

 

     (b) Whether the individual to be restrained or enjoined has

 

previously committed or threatened to commit 1 or more of the acts

 

listed in subsection (1).

 

     (5) A court shall not issue a personal protection order that

 

restrains or enjoins conduct described in subsection (1)(a) if all

 

of the following apply:

 

     (a) The individual to be restrained or enjoined is not the

 

spouse of the moving party.

 

     (b) The individual to be restrained or enjoined or the parent,

 

guardian, or custodian of the minor to be restrained or enjoined

 

has a property interest in the premises.

     (c) The moving party or the parent, guardian, or custodian of

 

a minor petitioner has no property interest in the premises.

 

     (6) A court shall not refuse to issue a personal protection

 

order solely because of the absence of any of the following:

 

     (a) A police report.

 

     (b) A medical report.

 

     (c) A report or finding of an administrative agency.

 

     (d) Physical signs of abuse or violence.

 

     (7) If the court refuses to grant a personal protection order,

 

it shall state immediately in writing the specific reasons it

 

refused to issue a personal protection order. If a hearing is held,

 

the court shall also immediately state on the record the specific

 

reasons it refuses to issue a personal protection order.

 

     (8) A court shall not issue a mutual personal protection

 

order. Correlative separate personal protection orders are

 

prohibited unless both parties have properly petitioned the court

 

under subsection (1).

 

     (9) A personal protection order is effective and immediately

 

enforceable anywhere in this state after being signed by a judge.

 

Upon service, a personal protection order may also be enforced by

 

another state, an Indian tribe, or a territory of the United

 

States.

 

     (10) The issuing court shall designate a law enforcement

 

agency that is responsible for entering a personal 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.

 

     (11) A personal protection order 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 restrain or enjoin 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 and,

 

if he or she is 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.

 

     (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 after

 

being 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 the type or types of conduct enjoined.

 

     (d) Unless the order is issued ex parte under subsection (12),

 

a statement that the respondent is restrained and enjoined as

 

provided in subsection (30).

 

     (e) (d) An expiration date stated clearly on the face of the

order.

 

     (f) (e) A statement that the personal protection order is

 

enforceable anywhere in this state by any law enforcement agency.

 

     (g) (f) The name of the law enforcement agency designated by

 

the court to enter the personal protection order into the law

 

enforcement information network.

 

     (h) (g) For ex parte orders, 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 actual notice of the order and that motion forms and

 

filing instructions are available from the clerk of the court.

 

     (12) A court shall issue an ex parte personal protection order

 

without written or oral notice to the individual restrained or

 

enjoined or his or her attorney if 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 itself 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. A motion to modify or rescind the personal protection order

 

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

 

individual restrained or enjoined has received actual notice of the

personal protection order unless good cause is shown for filing the

 

motion after the 14 days have elapsed.

 

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

 

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

 

ex parte personal protection order within 14 days after the motion

 

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 motion is filed.

 

     (15) The clerk of the court that issues a personal protection

 

order shall do all of the following immediately upon issuance and

 

without requiring a 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 respondent is identified in the pleadings as a law

 

enforcement officer, notify the officer's employing law enforcement

 

agency, if known, about the existence of the personal protection

 

order.

 

     (d) If the personal protection order prohibits the respondent

 

from purchasing or possessing a firearm, notify the county clerk of

 

the respondent's county of residence about the existence and

 

contents of the personal protection order.

     (e) If the respondent is identified in the pleadings as a

 

department of corrections employee, notify the state department of

 

corrections about the existence of the personal protection order.

 

     (f) If the respondent 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 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 the existence of the personal protection order.

 

     (16) The clerk of the court 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 law enforcement information

 

network.

 

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

 

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

 

immediately and without requiring proof of service enter the

 

personal 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.

 

     (18) A personal protection order issued under this section

 

must 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 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

 

respondent is less than 18 years of age, the parent, guardian, or

 

custodian of the individual 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 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 its

 

immediate enforcement under subsections (21) and (22).

 

     (19) The clerk of the court that issued the personal

 

protection order shall immediately notify the law enforcement

 

agency that received the personal protection order under subsection

 

(15) or (16) if either of the following occurs:

 

     (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 law enforcement information

 

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

163, MCL 28.211 to 28.215.

 

     (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 law

 

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

 

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

 

     (22) If the individual restrained or enjoined has not been

 

served, a law enforcement agency or officer responding to a call

 

alleging a violation of a 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 law enforcement

 

information network 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 the personal protection order.

 

If the individual restrained or enjoined has not received notice of

 

the personal protection order, the individual restrained or

 

enjoined 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.

 

The 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 who is 17 years of age or older and who

 

refuses or fails to comply with a personal protection order under

 

this section is subject to the criminal contempt powers of the

 

court and, if found guilty, must 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

 

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 under this section may be imposed in addition to a

 

penalty that may be imposed for another criminal offense arising

 

from the same conduct.

 

     (24) An individual who knowingly and intentionally makes a

 

false statement to the 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 section 15b of chapter IV of the code of

 

criminal procedure, 1927 PA 175, MCL 764.15b, and chapter 17.

 

     (26) 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.

 

     (27) 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.

 

     (28) 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 477.

 

     (29) For purposes of subsection (1)(k), a petitioner has an

 

ownership interest in an animal if 1 or more of the following are

 

applicable:

 

     (a) The petitioner has a right of property in the animal.

 

     (b) The petitioner keeps or harbors the animal.

 

     (c) The animal is in the petitioner's care.

 

     (d) The petitioner permits the animal to remain on or about

 

premises occupied by the petitioner.

 

     (30) A personal protection order entered under this section

 

after a hearing of which the respondent received actual notice, and

 

at which the respondent had the opportunity to participate, must

 

restrain and enjoin the respondent from possessing, using,

 

transporting, selling, purchasing, carrying, shipping, receiving,

 

or distributing a firearm or ammunition. This subsection applies

 

regardless of whether the petitioner requests relief under

subsection (1)(e).

 

     (31) (30) As used in this section:

 

     (a) "Dating relationship" means frequent, intimate

 

associations primarily characterized by the expectation of

 

affectional involvement. Dating relationship does not include a

 

casual relationship or an ordinary fraternization between 2

 

individuals in a business or social context.

 

     (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) "Neglect" means that term as defined in section 50 of the

 

Michigan penal code, 1931 PA 328, MCL 750.50.

 

     (d) "Personal protection order" means an injunctive order

 

issued by the family division of circuit court restraining or

 

enjoining activity and individuals listed in subsection (1).