In Michigan, there are three types of personal protection orders (PPOs) that can be granted by the circuit court:
- Domestic PPO
- Non-Domestic Stalking PPO
- Non-Domestic Sexual Assault PPO
This article will explicitly discuss how to obtain a Non-Domestic Stalking PPO, which, if granted, will restrain and enjoin another person (the "respondent") from engaging in stalking (MCL 750.411h), aggravated stalking (MCL 750.411i) and cyberstalking (MCL 750.411s) against the person applying for this PPO (the "petitioner").
The court cannot grant a Non-Domestic Stalking PPO "unless the petition alleges facts that constitute stalking as defined in section 411h or 411i, or conduct that is prohibited under section 411s (cyberstalking), of the Michigan penal code... [but] [r]elief may be sought and granted under this subsection whether or not the individual to be restrained or enjoined has been charged or convicted under section 411h, 411i, or 411s of the Michigan penal code...". MCL 600.2950a(1). Specifically, the petition must allege that the respondent engaged in one of the following three behaviors:
- MCL 750.411h(d) (Stalking) - "[a] willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested."
- (1) "Course of conduct" means a pattern of conduct composed of a series of 2 or more separate noncontinuous acts evidencing a continuity of purpose. MCL 750.411h(a).
- (2) "Emotional distress" means significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling. MCL 750.411h(b).
- (3) "Harassment" means conduct directed toward a victim that includes, but is not limited to, repeated or continuing unconsented contact that would cause a reasonable individual to suffer emotional distress and that actually causes the victim to suffer emotional distress. Harassment does not include constitutionally protected activity or conduct that serves a legitimate purpose. MCL 750.411h(c).
- (4) "Unconsented contact" means any contact with another individual that is initiated or continued without that individual's consent or in disregard of that individual's expressed desire that the contact be avoided or discontinued. MCL 750.411h(e). Unconsented contact includes, but is not limited to, any of the following:
- (i) Following or appearing within the sight of that individual.
- (ii) Approaching or confronting that individual in a public place or on private property.
- (iii) Appearing at that individual's workplace or residence.
- (iv) Entering onto or remaining on property owned, leased, or occupied by that individual.
- (v) Contacting that individual by telephone.
- (vi) Sending mail or electronic communications to that individual.
- (vii) Placing an object on, or delivering an object to, property owned, leased, or occupied by that individual.
- (5) "Victim" means an individual who is the target of a willful course of conduct involving repeated or continuing harassment. MCL 750.411(f).
- MCL 750.411i(2) (Aggravated Stalking) - Engaging in stalking as defined in MCL 750.411h but the violation includes ANY of the following circumstances:
- (a) At least 1 of the actions constituting the offense is in violation of a restraining order and the individual has received actual notice of that restraining order or at least 1 of the actions is in violation of an injunction or preliminary injunction.
- (b) At least 1 of the actions constituting the offense is in violation of a condition of probation, a condition of parole, a condition of pretrial release, or a condition of release on bond pending appeal.
- (c) The course of conduct includes the making of 1 or more credible threats against the victim, a member of the victim's family, or another individual living in the same household as the victim.
- (d) The individual has been previously convicted of a violation of aggravated stalking or stalking. "Credible threat" means a threat to kill another individual or a threat to inflict physical injury upon another individual that is made in any manner or in any context that causes the individual hearing or receiving the threat to reasonably fear for his or her safety or the safety of another individual. MCL 750.411i(1)b).
- MCL 750.411s(1) (Cyberstalking) - A person shall not post a message through the use of any medium of communication, including the internet or a computer, computer program, computer system, or computer network, or other electronic medium of communication, without the victim's consent, if ALL of the following apply:
- (a) The person knows or has reason to know that posting the message could cause 2 or more separate noncontinuous acts of unconsented contact with the victim.
- (b) Posting the message is intended to cause conduct that would make the victim feel terrorized, frightened, intimidated, threatened, harassed, or molested.
- (c) Conduct arising from posting the message would cause a reasonable person to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.
- (d) Conduct arising from posting the message causes the victim to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.
The court shall not issue a PPO restraining or enjoining the respondent if any of the following circumstances apply:
- The respondent is the unemancipated minor child of the petitioner. MCL 600.2950a(27)(a).
- The petitioner is the unemancipated minor child of the respondent. MCL 600.2950a(27)(b).
- The respondent is a minor child less than 10 years of age. MCL 600.2950a(27)(c).
- The petitioner is a prisoner. MCL 600.2950a(30).
This version of the PPO is intended for petitioners who do not have a domestic relationship with the respondent. However, if the petitioner is either a spouse or former spouse of the respondent, has a child in common with the respondent, is or was in a dating relationship with the respondent, or is or was a member of the respondent's household, then the petitioner should consider filing a domestic PPO action. Unlike the non-domestic stalking PPO, a petitioner in a domestic relationship does not have to prove two or more instances of stalking conduct and enjoys the lower evidentiary proof standard of "reasonable cause".
A PPO action is an independent court action initiated by filing a petition with the circuit court. There are no fees for filing a PPO action and no summons is issued. A PPO cannot be commenced by filing a motion in an existing case (e.g. divorce or child custody court file) or by joining a claim to an action. MCR 3.703(A).
A petitioner can, and often does, request that a PPO be issued ex parte without any oral or written notice to the respondent or his or her attorney. The court must rule on a request for an ex parte order within 24 hours of the filing of the petition. MCR 3.705(A)(1). The court shall grant the PPO ex parte if, in addition to alleging stalking, the petitioner shows "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 [PPO] can be issued." MCL 600.2950a(12). If the court refuses to enter the PPO ex parte, then it must advise the petitioner of the right to request a hearing. MCR 3.705(A)(5). If an ex parte PPO is granted, it is valid for not less than 182 days and must state an expiration date. MCL 600.2950a(13); MCR 3.705(A)(3).
The court is prohibited from issuing a mutual PPO for both parties. Either party has the burden of filing their own PPO and having the judge consider each one individually on its own merits. MCL 600.2950a(8).
Upon an ex parte order being granted, the petitioner must serve the petition and order upon the respondent. The petitioner's failure to serve the order does not affect its validity or effectiveness. MCR 3.705(A)(4). "A personal protection order is effective and immediately enforceable anywhere in this state after being signed by a judge, [and], [u]pon service, a personal protection order may also be enforced by another state, an Indian tribe, or a territory of the United States." MCL 600.2950a(9). "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." MCL 600.2950a(7).
If the respondent violates any of the terms of the PPO, he or she is subject to immediate arrest and the full civil and criminal contempt powers of the court. If found guilty of criminal contempt, the respondent could be punished by up to 93 days in jail or a fine up to $500.00, or both. MCL 600.2950a(23). However, the respondent cannot be penalized for PPO violations, and the order cannot be entered into the law enforcement information network (LEIN), until the PPO order is actually served. MCL 600.2950(22). Upon effective service, failure of the respondent to immediately comply with the order subjects him or her to immediate arrest.
The respondent may file a motion to modify or terminate the PPO within 14 days of being served with the ex parte order or receiving actual notice of the order (if 14 days has lapsed, the respondent must also show good cause). MCL 600.295a0(13); MCR 3.707(A)(1)(b). Upon the filing of a motion to modify or terminate, the court must schedule a hearing within 14 days. MCL 600.2950a(14); MCR 3.707(A)(2). At a hearing on a motion to modify or terminate the PPO, the petitioner has the burden of justifying the continuation of a PPO that was granted ex parte. MCR 3.310(B)(5); Pickering v Pickering, 253 Mich App 694, 698-699; 659 NW2d 649 (2002).
Respondents often feel that they have been deprived due process rights since a judge will often grant an ex parte order solely on the word of the petitioner. Despite the lack of initial notice, appellate courts have upheld the PPO statutes despite challenges for unconstitutionality. An active PPO restricts the ability of the respondent to own or possess a gun. Furthermore, if the respondent is already on probation or parole, a PPO violation can constitute a "violation of a court order" which can trigger violation proceedings in the criminal case. A record of the PPO will remain on LEIN, even after the original order has lapsed. Respondents often have nothing to lose by attempting to terminate the PPO, but they have a short period of time to make the decision and file the appropriate pleadings.
If you are contemplating applying for a personal protection order, or you are a respondent looking to terminate an existing PPO or defend against alleged violations, then you could benefit from the advice of an experienced PPO lawyer to guide the way. For the best legal assistance, do not hesitate to contact the skilled attorneys at Kershaw, Vititoe & Jedinak PLC today.