Rule 3.721.Contempt Proceedings for Violation of Extreme Risk Protection Order

MCR 3.721 supplies the enforcement machinery. It starts with who may accuse, moves through arraignment and the choice between a plea and a hearing, and ends with the burdens of proof for criminal and civil contempt. Subrule (A) notes the order is enforceable under MCL 691.1810(4)-(5), MCL 691.1815(4), and MCL 691.1819.

Starting the proceeding

Under subrule (B)(1), the prosecuting attorney for the county where the order was issued, or a law enforcement officer, may file a motion supported by an appropriate affidavit asking that the respondent be found in contempt. There is no fee. If the motion and affidavit establish probable cause for a finding of contempt, the court must either order the respondent to appear at a specified time to answer the charge or issue a bench warrant. When the court issues an order to show cause, the hearing must be held within 5 days, and the moving prosecutor or officer serves the motion and order on both the respondent and the petitioner under MCR 2.107. Subrule (C) allows an accompanying affidavit for a search warrant when the alleged violation is that the respondent has a firearm or concealed pistol license in possession or control.

Arraignment and pleas

At the first appearance the court advises the respondent of the alleged violation, of the right to contest the charge at a hearing, and of the right to a lawyer's assistance. If the court determines it might impose jail, it advises that a lawyer will be appointed at public expense for a respondent who wants one and cannot afford one, by the court or by the local funding unit's appointing authority. The court appoints or refers if requested, sets a reasonable bond, and either takes a plea or schedules a hearing.

A guilty plea requires a colloquy. Speaking directly to the respondent and hearing the response, the court explains that pleading guilty gives up the contested hearing and, for an unrepresented respondent, the right to counsel described in subrule (D)(1)(c); states the maximum possible jail sentence; and warns that a guilty plea means the court will automatically extend the order for 1 year after the expiration of the preceding order. The court must find the plea understanding, voluntary, and knowing, and establish factual support for guilt.

Scheduling, bond, and the hearing

• The hearing is set at the earliest practicable time. A respondent held in custody gets a hearing within 72 hours after arrest, unless extended on the motion of the arrested individual or the prosecuting attorney.
• The court sets a reasonable bond pending hearing unless release will not reasonably ensure the safety of the respondent or others. Bond may carry any condition in MCR 6.106(D) needed for safety, including continued compliance with the order, and the release order complies with MCL 765.6b.
• If 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, and notifies the petitioner, the petitioner's attorney, and any officer who filed the motion, directing the party to appear and give evidence.

There is no right to a jury trial. The respondent may be present, present evidence, and examine and cross-examine witnesses. The rules of evidence apply to both criminal and civil contempt. The prosecuting attorney, who must prosecute the proceeding, carries the burden of proving criminal contempt beyond a reasonable doubt and civil contempt by clear and convincing evidence. The court states its findings and conclusions on the record or in a written opinion, and may impose sanctions as MCL 600.1701 et seq. provides.