Rule 3.987.Violation Hearing

MCR 3.987 is where a denied allegation gets tried. The rule reads like a compressed trial rule, and its most consequential lines are the deadline in subrule (A) and the two burdens of proof in subrule (F).

Timing

When the respondent denies the allegations in the supplemental petition, the court sets the violation hearing at the completion of the preliminary hearing. A detained respondent must have the hearing within 72 hours of apprehension, excluding Sundays and holidays as defined in MCR 8.110(D)(2). A respondent who is not detained must have the hearing within 21 days. Custody sets the pace.

Who prosecutes

Subrule (B) allocates the contempt case. If a criminal contempt proceeding is commenced under MCL 764.15b, the prosecuting attorney prosecutes it unless the petitioner retains an attorney to do so. The prosecuting attorney need not prosecute if the attorney determines that the personal protection order was not violated or that prosecution would not be in the interest of justice, which leaves room for charging judgment inside a proceeding a private petitioner started.

Preliminary matters

Subrule (C) opens the hearing. The court determines whether the appropriate parties were notified and are present. The respondent has the right to be present along with parents, guardian, or custodian, a guardian ad litem, and an attorney, and the original petitioner has the right to be present as well. The court may proceed without a parent who was properly noticed to appear, provided the respondent is represented by an attorney. The allegations in the supplemental petition are read unless waived.

If no attorney appears with the minor, subrule (C)(3) requires the court to explain the right to an attorney and that one will be appointed at public expense if the court determines it might sentence the respondent to jail or order secure detention and the respondent wants an attorney and cannot afford to retain one. A minor who asks to proceed alone must be told of the dangers and disadvantages of self-representation, and the court must determine whether the minor is literate and competent to conduct the defense.

Proof and findings

There is no right to a jury trial under subrule (D). Under subrule (E) the respondent has the right to be present, to present evidence, and to examine and cross-examine witnesses. Subrule (F) sets the standards that decide the case. The rules of evidence apply to both criminal and civil contempt proceedings, so the hearing is not run on a relaxed record. The petitioner or the prosecuting attorney must prove guilt of criminal contempt beyond a reasonable doubt, and guilt of civil contempt by a preponderance of the evidence. The same facts can therefore support one and fail the other, which makes the character of the contempt charged a live question before the proof starts.

Subrule (G) closes the hearing. The court must make specific findings of fact, state its conclusions of law separately, and direct entry of the appropriate judgment, stating findings and conclusions on the record or in a written opinion made part of the record.