Opinion
No. 00-23
September 12, 2000.
On order of the Court, this is to advise that the Court is considering amendment of Rules 3.702, 3.703, 3.704, 3.706, 3.707, and 3.708 of the Michigan Court Rules. Before determining whether the proposals should be adopted, changed before adoption, or rejected, this notice is given to afford any interested person the opportunity to comment on the form or the merits of the proposals. We welcome the views of all who wish to address the proposals or who wish to suggest alternatives. Before adoption or rejection, these proposals will be considered at a public hearing by the Court. The Clerk of the Court will publish a schedule of future public hearings.
As whenever this Court publishes an administrative proposal for comment, we emphasize that publication of these proposals does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposals in their present form.
The rules would be amended to read as indicated below.
Rule 3.702 Definitions
When used in this subchapter, unless the context otherwise indicates:
(1) [Unchanged.]
(2) "petition" refers to a pleading for commencing an independent action for personal protection and is not considered a motion as defined in MCR 2.119 ;
(3) — (7) [Unchanged.]
Rule 3.703 Commencing a Personal Protection Proceeding Action
(A) Filing. A personal protection proceeding action is an independent action commenced by filing a petition with a court. There are no fees for filing a personal protection order action and no summons is issued. A personal protection action may not be commenced by filing a motion in an existing case or by joining a claim to an action.
(B) — (E) [Unchanged.]
(F) Minor or Legally Incapacitated Person Individual as Petitioner.
(1) If the petitioner is a minor under 17 years of age or a legally incapacitated person individual, the petitioner may shall proceed through a next friend. The petitioner shall certify that the next friend is not disqualified by statute and that the next friend is an adult.
(2) [Unchanged.]
(G) [Unchanged.]
Rule 3.704 Dismissal
Except as specified in 3.705(A)(5) and (B), an action for a personal protection order may only be dismissed upon motion by the petition prior to the issuance of an order. There is no fee for such a motion.
Rule 3.706 Orders
(A) Form and Scope of Order. An order granting a personal protection order must include the following:
(1) — (6) [Unchanged.]
(7) 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 being served with, or receiving actual notice of, the order, and that motion forms and filing instructions are available from the clerk of the court.
(B) — (D) [Unchanged.]
(E) Oral Notice. If oral notice of the order is made by a law enforcement officer as described in MCL 600.2950(21 22); MSA 27A.2950(21 22) or MCL 600.2950a(18 19); MSA 27A.2950(1)(18 19).
Rule 3.707 Modification, or Recision Termination, or Extension of Order
(A) Modification or Termination.
(A 1) Time for Filing and Service.
(1 a) Either party The petitioner may file a motion to modify or rescind terminate the personal protection order and request a hearing for good cause at any time after the personal protection order is issued. The petitioner may include in such a motion a request to extend the effectiveness of the order by setting a new expiration date. The motion must be filed with the court that issued the personal protection order. A motion to extend the effectiveness of the order must be filed at least 28 days before the expiration date in the order.
(b) The respondent may file a motion to modify or terminate the personal protection order and request a hearing within 14 days after being served with, or receiving actual notice of, the order unless good cause is shown for filing the motion after the 14 days have elapsed.
(2 c) The moving party shall serve the motion to modify or rescind terminate the order and the notice of hearing at least 7 days before the hearing date as provided in MCR 2.105(A)(2) to at the mailing address or addresses provided to the court. On an appropriate showing, the court may allow service in another manner as provided in MCR 2.105(I). If the moving party is a respondent 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 Michigan law enforcement training council act of 1965, 1965 PA 203, MCL 28.601 to 28.616; MSA 4.450(1) to 4.450(16), 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, providing notice one day before the hearing is deemed as sufficient notice to the petitioner.
(B) (2) Hearing on the Motion. The court must schedule and hold a hearing on a motion to modify or rescind terminate a personal protection order within 14 days of the filing of the motion.
(C) (3) Notice of Modification or Recision Termination. If a personal protection order is modified or rescinded terminated the clerk must immediately notify the law enforcement agency specified in the personal protection order of the change. A modified or rescinded terminated order must be served as provided in MCR 2.107.
(B) Extension of Order.
(1) Time for Filing. The petitioner may file an ex parte motion to extend the effectiveness of the order, without hearing, by requesting a new expiration date. The motion must be filed with the court that issued the personal protection order no later than 3 days before the order is to expire. The court must act on the motion within 3 days after it is filed.
(2) Notice of Extension. If the expiration date on a personal protection order is extended, an amended order must be entered. The clerk must immediately notify the law enforcement agency specified in the personal protection order of the change. The order must be served on the respondent as provided in MCR 2.107.
(C) Minors. Petitioners or respondents who are minors must proceed through a next friend, as provided in MCR 3.703(F).
(D) Fees. There are no motion fees for modifying, terminating, or extending a personal protection order.
Rule 3.708 Contempt Proceedings for Violation of Personal Protection Orders
(A) In General.
(1) A personal protection order is enforceable under MCL 600.2950(22 23), (25); MSA 27A.2950(22 23), (25), MCL 600.2950a(19 20), (22); MSA 27A.2950(1)(19 20), (22), MCL 764.15b; MSA 28.874(2), and MCL 600.1701 et seq.; MSA 27A.1701 et seq.
(2) [Unchanged.]
(3) A contempt proceeding brought in a court other than the one that issued the personal protection order shall be entitled "In the Matter of Contempt of [Respondent]". The clerk shall provide a copy of the contempt proceeding to the court that issued the personal protection order.
(B) Motion to Show Cause.
(1) Filing. If the respondent violates the personal protection order, the petitioner may file a motion with the court that issued the personal protection order, supported by appropriate affidavit, to have the respondent found in contempt. There is no fee for such a motion. If the petitioner's motion and affidavit establish a basis for a finding of contempt, the court shall either:
(a) order the respondent to appear at a specified time to answer the contempt charge; or
(b) issue a bench warrant for the arrest of the respondent.
(2) Service. The petitioner shall serve the motion to show cause andthe order as provided in MCR 2.107 on the respondent by personal service at least 7 days before the show cause hearing.
(C) Arrest.
(1) If the respondent is arrested for violation of a personal protection order as provided in MCL 764.15b(1); MSA 28.874(2)(1), the court in the county where the arrest is made shall proceed as provided in MCL 764.15b(2)-(5); MSA 28.874(2)(2)-(5), except as provided in this rule.
(2) A contempt proceeding brought in a court other than the one that issued the personal protection order shall be entitled "In the Matter of Contempt of [Respondent]". The clerk shall provide a copy of any documents pertaining to the contempt proceeding to the court that issued the personal protection order. (3) If it appears that a circuit judge will not be available within 24 hours after arrest, the respondent shall be taken, within that time, before a district court, which shall set bond and order the respondent to appear for arraignment before the family division of the circuit court in that county.
(D) Appearance or Arraignment; Advice to Respondent. At the respondent's first appearance before the circuit court, whether for arraignment under MCL 764.15b; MSA 28.874(2), enforcement under MCL 600.2950; MSA 27A.2950 or MCL 600.2950a; MSA 27A.2950(1) or MCL 600.1701; MSA 27A.1701, or otherwise, the court must:
(1) ensure that advise the respondent receives written notice of the alleged violation,
(2) — (6) [Unchanged.]
(E) [Unchanged.]
(F) Scheduling or Postponing Hearing. Following the respondent's appearance or arraignment, the court shall do the following:
(1) Set a date for the hearing at the earliest practicable time except as required under MCL 764.15b; MSA 28.874(2).
(a) The hearing of a respondent being held in custody for an alleged violation of a personal protection order must be held within 72 hours after the arrest, unless extended by the court on the motion of the arrested individual or the prosecuting attorney, or the . The court mustorder the respondent released from custody set a reasonable bond pending the hearing unless the court determines that release will not reasonably ensure the safety of the individuals named in the personal protection order.
(b) If the respondent is released from custody pending the hearing and the court determines that the release will not reasonably ensure the safety of the individuals named in the personal protection order, the court may order release on condition that the respondent continue to comply with the personal protection order or any other condition specified in MCR 6.106(D). If a respondent is released on bond pending the hearing, the bond may include any condition specified in MCR 6.106(D) necessary to reasonably ensure the safety of the individuals named in the personal protection order, including continued compliance with the personal protection order. The release order shall also comply with MCL 765.6b; MSA 28.893(2).
(c) [Unchanged.]
(2) [Unchanged.]
(3) Notify the respondent petitioner and his or her attorney, if any, of the contempt proceeding and direct the party to appear at the hearing and give evidence on the charge of contempt.
(G) [Unchanged.]
(H) The Violation Hearing.
(1) — (2) [Unchanged.]
(3) Evidence; Burden of Proof. The rules of evidence apply to both criminal and civil contempt proceedings. The petitioner or the prosecuting attorney has the burden of proving the respondent's guilt of criminal contempt beyond a reasonable doubt and the respondent's guilt of civil contempt by a preponderance of the evidence as clear and unequivocal.
(4) — (5) [Unchanged.]
STAFF COMMENT: The proposed amendments of MCR 3.702, 3.703, 3.704, 3.706, 3.707, and 3.708 are designed, in part, to clarify the court rule provisions adopted effective September 1, 1997. 456 Mich. clxxxiv (1997).
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption in its present form. Timely comments will be substantively considered and your assistance is appreciated by the Court.
A copy of this order will be given to the secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on this proposal may be sent to the Supreme Court clerk by January 1, 2001. When filing a comment, please refer to our file No. 00-23.