Rule 3.708.Contempt Proceedings for Violation of Personal Protection Orders

MCR 3.708 turns a personal protection order into an enforceable command. Two entry points feed one hearing, and the rule borrows from criminal procedure to protect a respondent who faces jail.

Reach of the rule

Subrule (A)(1) makes an order enforceable under MCL 600.2950(23) and (25), 600.2950a(23) and (25), 764.15b, and 600.1701 et seq., and treats a foreign protection order enforceable in Michigan under MCL 600.29501 as one of them. Subrule (A)(2) draws the line with the juvenile rules: enforcement of a minor personal protection order against a respondent under 18 goes to subchapter 3.900, while enforcement against an adult, or against a respondent now 18 or older, stays here.

Two ways a violation reaches court

Under subrule (B), the petitioner may file a motion supported by affidavit to have the respondent found in contempt, at no fee. If the motion and affidavit establish a basis for a contempt finding, the court either orders the respondent to appear at a specified time or issues a bench warrant, and the papers are served personally at least 7 days before the show cause hearing. Under subrule (C), a respondent arrested under MCL 764.15b(1) is handled by the court in the county of arrest as provided in MCL 764.15b(2) to (5). If no circuit judge will be available within 24 hours after arrest, the respondent goes before a district court within that time, which sets bond and orders an arraignment before the family division.

First appearance and pleas

Subrule (D) requires the court to state the alleged violation and to advise the respondent of the right to contest it at a hearing and of the right to a lawyer, including appointment at public expense where the court determines it might impose jail and the respondent cannot afford one. The court appoints counsel if requested and appropriate, sets a reasonable bond, and either takes a plea under subrule (E) or schedules a hearing under subrule (F). Before accepting a guilty plea the court must speak directly to the respondent about the rights given up and the maximum possible jail sentence, find the plea knowing and voluntary, and establish factual support for guilt.

Scheduling

• A respondent held in custody gets a hearing within 72 hours after arrest, unless extended on motion of the arrested individual or the prosecuting attorney.
• Bond may carry any condition specified in MCR 6.106(D) needed to reasonably ensure the safety of the individuals named in the order, and the release order must comply with MCL 765.6b.
• Where the alleged violation is also the basis of a separate criminal prosecution, the court may postpone the hearing on the prosecutor's motion.

The court notifies the prosecuting attorney of a criminal contempt proceeding and directs the petitioner to appear and give evidence. Under subrule (G), in a criminal contempt proceeding commenced under MCL 764.15b, the prosecuting attorney prosecutes unless the petitioner retains his or her own attorney for the proceeding.

The hearing and the sentence

Subrule (H) gives no right to a jury. The respondent may be present, present evidence, and examine and cross examine witnesses. The rules of evidence apply to both criminal and civil contempt, with criminal contempt proved beyond a reasonable doubt and civil contempt by clear and convincing evidence. The court finds the facts specially, states its conclusions of law separately, and directs entry of the appropriate judgment, stating its findings and conclusions on the record or in a written opinion made part of the record. On criminal contempt the sentence is incarceration for no more than 93 days, with a fine of not more than $500.00 available; on civil contempt, a fine or imprisonment as specified in MCL 600.1715 and 600.1721. The court may also impose other conditions on the personal protection order.