When you are on the business end of a personal protection order (PPO), an allegation that you violated this court order is no laughing matter. If a judge determines that you violated this order, you can be held in contempt of court and be ordered to pay a fine, go to jail and even have additional conditions added to the existing PPO. If you are the respondent of an active PPO, it is critical that you know what to expect.
First and foremost, a PPO is a one-way street and the conduct of the respondent is the only thing that matters to the judge. The petitioner is free to knock on the front door of your home, call you on the telephone, and send you text messages or emails. However, if the respondent's PPO prohibits specific contact with the petitioner, then it is the respondent who may be held in contempt for opening the door, answering the phone or replying to the text message or email DESPITE THE FACT that the petitioner initiated it. "When evaluating whether there has been a violation of a PPO, the proper focus is on the behavior of the individual against whom the PPO is held, not the behavior of the person who holds the PPO." In re Kabanuk, 295 Mich App 252, 258; 813 NW2d 348 (2012).
There are two ways that PPO violation proceedings can be initiated:
- A peace officer, without a warrant, may arrest and take into custody an individual when the peace officer has or receives positive information that another peace officer has reasonable cause to believe that you are the respondent of a valid PPO order and you violated a term of that order. MCL 764.15b(1). Remember, there is a record of a validly issued PPO on the law enforcement information network (LIEN) readily available to police officers. The respondent will be brought before the circuit court within 24 hours after arrest to be arraigned on criminal contempt charges for violating the PPO. MCL 764.15b(2). The judge will advise the respondent of the violation, set bond, advise respondent that he or she may have court-appointed legal counsel and determine the eligibility for same, accept a guilty plea or set a hearing date regarding the violation that the respondent must attend. MCR 3.708(D).
- The petitioner may file a motion to show cause why the respondent should not be held in contempt for violating the PPO. "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." MCR 3.708(B)(1). The burden is on the petitioner to "serve the motion to show cause and the order on the respondent by personal service at least 7 days before the show cause hearing." MCR 3.708(B)(2). At the show cause hearing, the judge will advise the respondent of the violation, set bond, advise respondent that he or she may have court-appointed legal counsel and determine the eligibility for same, accept a guilty plea or set a hearing date regarding the violation that the respondent must attend. MCR 3.708(D).
If the respondent is held in custody for the alleged PPO violation, the violation hearing must be held within 72 hours of the arrest. MCR 3.708(F)(1)(a). The petitioner must be notified of the heating date as well. The prosecutor of that county has a duty to assist the petitioner in prosecuting a criminal contempt proceeding unless the petitioner retains his or her own legal counsel, or the prosecutor determines there was no PPO violation, or the prosecutor determines pursuing criminal contempt is not in the interests of justice. MCL 764.15b(7).
The judge has the power to impose both civil contempt and criminal contempt sanctions. The penalties for civil contempt include paying any fine (up to $7,500.00), costs or expenses of the proceeding, or coerce the respondent to comply with the order by threat of imprisonment up to 93 days until compliance is achieved. MCL 600.1715. If there was an actual loss or injury to the petitioner, the court can also order civil sanctions to compensate the petitioner for out-of-pocket expenses that include attorney's fees. MCL 600.1721. The penalty for criminal contempt, whether the respondent pleads guilty or is found guilty after a hearing, is up to 93 days in jail or a fine up to $500.00, or both. MCR 3.708(H)(5)(a); MCL 600.2950(23); MCL 600.2950a(23). The court may also impose other conditions on the existing PPO. MCR 3.708(H)(5). It is possible that the respondent may try to work out some type of plea bargain with the prosecutor or petitioner's attorney prior to presenting evidence. The following rules apply to the violation hearing:
- There is no right to a jury. MCR 3.708(H)(1).
- The respondent has the right to be personally present. MCR 3.708(H)(2).
- All of the Michigan rules of evidence apply, including those rules regarding hearsay and privilege. MCR 3.708(H)(3).
- The petitioner or the prosecutor has the burden of proving the respondent guilty of civil contempt by clear and convincing evidence. MCR 3.708(H)(3).
- The petitioner or the prosecutor has the burden of proving the respondent guilty of criminal contempt beyond a reasonable doubt. MCR 3.708(H)(3).
The court will evaluate the credibility of the witnesses and evidence in determining whether or not the PPO was violated. In addition, the respondent has some other defenses available at law:
- Lack of Notice: The respondent cannot be subjected to PPO violation proceedings if he or she has not been served with the PPO or otherwise been provided actual notice of the court order. In fact, when a police officer responds to an alleged PPO violation complaint and determines that the respondent has not been served with the order, then that police officer must serve the PPO and give the respondent an opportunity to comply with the order before making an arrest.
- "Legitimate Purpose" Exception: In cases of non-domestic stalking PPOs, the respondent is prohibited from engaging in "stalking", meaning "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." MCL 750.411h(d). However, "[h]arassment does not include constitutional protected activity or conduct that serves a legitimate purpose." MCL 750.411h(c). "Surveillance by a licensed private investigator is conduct that serves a legitimate purpose as long as the surveillance serves or contributes to the purpose of obtaining information [permitted by law]." Nastal v Henderson & Assoc Investigations, Inc, 471 Mich 712, 723; 691 NW2d 1 (2005)(private investigator conducted surveillance to investigate personal injury claim after car accident). However, sending communications to the petitioner's employer regarding his or her moral character when the statements were slanderous was not protected activity. Cavanaugh v Smith, unpublished per curiam opinion of the Court of Appeals, issued April 23, 2009 (Docket No. 282147).
If the respondent is found not guilty of violating the PPO, he or she must understand that this acquittal does not have the effect of cancelling the PPO. The PPO will remain in effect until the expiration date notwithstanding the findings concerning any violations. The respondent will have to file a motion to modify or terminate the PPO if he or she wants to eliminate it.
If you are a respondent in need of a defense against such allegations, then you could benefit from the representation of an experienced PPO lawyer to guide the way. Trying to defend yourself or relying on bogus legal theories can cost you money and your liberty. If you are involved in PPO violation proceedings, do not hesitate to contact the skilled attorneys at Kershaw, Vititoe & Jedinak PLC to start your best defense as soon as possible.