This section discusses proceedings to enforce a PPO issued against an adult or to enforce a minor PPO still in effect when the respondent is 18 years of age or older. For a comprehensive discussion on enforcement proceedings involving minor respondents, see the Michigan Judicial Institute’s Juvenile Justice Benchbook, Chapter 13.
A PPO is a court order that prohibits or requires certain actions by a respondent and provides penalties for its violations. Thus, PPOs are enforced by contempt proceedings. For a detailed discussion of contempt of court, see the Michigan Judicial Institute’s Contempt of Court Benchbook and Contempt Quick Reference Materials.
Because PPO violations typically involve past violations of the court’s order and situations where the status quo cannot be restored, criminal contempt sanctions are usually imposed. See MCL 600.2950(23); MCL 600.2950a(23). In rare cases (e.g., where the respondent refuses to relinquish property), civil contempt sanctions may be appropriate; in these cases, MCL 600.1715 applies. See MCL 600.2950(25) and MCL 600.2950a(25). Before initiating contempt proceedings, the court must determine whether civil or criminal contempt proceedings are appropriate because a defendant charged with criminal contempt is entitled to be notified of that fact when he or she is notified of the charges. In re Contempt of Rochlin (Kane v Rochlin), 186 Mich App 639, 649 (1990). For additional information on distinguishing between civil and criminal contempt, see the Michigan Judicial Institute’s Contempt of Court Benchbook, Chapter 2, and Contempt Quick Reference Materials, Comparison of Civil and Criminal Contempt.
“Proceedings to enforce a [PPO] issued against an adult, or to enforce a minor [PPO] still in effect when the respondent is 18 or older, are governed by [MCR 3.708].” MCR 3.708(A)(2). Specifically, MCR 3.708(A)(1) provides that “[a] [PPO] is enforceable under MCL 600.2950(23), [MCL 600.2950](25), [MCL] 600.2950a(23), [MCL 600.2950a](25), [MCL] 764.15b, and [MCL] 600.1701 et seq. For the purpose of this rule, ‘[PPO]’ includes a foreign protection order[1] enforceable in Michigan under MCL 600.2950l.” MCR 3.708(A)(1).
“[T]he behavior of a PPO respondent is the only relevant consideration in a contempt proceeding[.]” In re Kabanuk, 295 Mich App 252, 253 (2012). The person “who holds a PPO is under no obligation to act in a certain way[;] [i]nstead, [when determining if a PPO has been violated,] [the] court must look only to the behavior of the individual against whom the PPO is held.” Id. at 258.
A.Initiating Contempt Proceedings
Under the PPO statutes and MCR 3.708, contempt proceedings against an adult my be initiated by either law enforcement or the petitioner:
•Criminal contempt proceedings may be initiated by a warrantless arrest under MCL 764.15b.2 See MCL 600.2950(23); MCL 600.2950a(23).
•If the respondent has not been arrested for an alleged PPO violation, the petitioner may initiate contempt proceedings by filing a motion to show cause. See MCR 3.708(B).
1.Initiating Criminal Contempt Proceedings by Warrantless Arrest
Criminal contempt proceedings may be initiated by a warrantless arrest under MCL 764.15b. See MCL 600.2950(25); MCL 600.2950a(25). MCL 764.15b(1)(a)-(b) authorize a law enforcement officer to arrest an individual named in a PPO without a warrant on reasonable cause to believe that the individual is violating or has violated the order.3 This sub-subsection discusses the prerequisites to a warrantless arrest on a PPO violation. The warrantless arrest requirements set out in MCL 764.15b do not preclude warrantless arrest on other grounds. See, generally, MCL 764.15 (general provision authorizing warrantless arrest) and MCL 764.15a, (authorizing warrantless arrest for domestic assault).
Note: Police officers are required to prepare a standard domestic violence incident report whenever they investigate or intervene in a domestic violence incident, and are required to provide the victim with written notice following the intervention or investigation of the domestic violence incident. MCL 764.15c(1)-(4). A domestic violence incident includes “an incident reported to a law enforcement agency involving allegations of . . . [a] violation of a [PPO] issued under . . . MCL 600.2950, or a violation of a valid foreign protection order.” MCL 764.15c(7)(c)(i). For additional information on police reports in cases involving domestic violence, see Section 3.3.
a.Notice Prerequisites to Warrantless Arrest
“Subject to [MCL 600.2950(22) and MCL 600.2950a(22)],” MCL 600.2950(21) and MCL 600.2950a(21) provide for the immediate enforceability of a PPO anywhere in Michigan “by any law enforcement agency that has received a true copy of the order, is shown a copy of it, or has verified its existence on the [LEIN.]”4
If the respondent has not been served with the PPO when the officer responds to an alleged PPO violation, MCL 600.2950(22) and MCL 600.2950a(22) require the law enforcement officer to serve the respondent with the PPO and to give the respondent an opportunity to comply with the PPO before making an arrest.5 If the respondent fails to immediately comply with the PPO, the law enforcement officer has grounds to make an immediate custodial arrest.6 MCL 600.2950(22); MCL 600.2950a(22). A similar provision applies to foreign protection orders. See MCL 600.2950l(9).7
MCL 600.2950(22), MCL 600.2950a(22), and MCL 600.2950l(9) “do[] not preclude an arrest under . . . MCL 764.15 [(general authority to arrest)] [or] [MCL] 764.15a [(arrest for domestic assault)],[8] or a proceeding under . . . MCL 712A.14 [(custodial detention for juvenile)].”
b.Making Warrantless Arrest
MCL 764.15b authorizes a peace officer to make a warrantless arrest “when the peace officer has or receives positive information that another peace officer has reasonable cause to believe all of the following apply:”
•A PPO has been issued under MCL 600.2950, MCL 600.2950a, or is a valid foreign PPO.9
•The restrained or enjoined individual is violating or has violated one or more of the acts specifically prohibited in the PPO.
•The PPO was issued under MCL 600.2950 or MCL 600.2950a and “states on its face that a violation of its terms subjects the [restrained or enjoined] individual to immediate arrest and either of the following:
(i) If the individual restrained or enjoined is 18 years of age or older, to criminal contempt of court and, if found guilty of criminal contempt, to imprisonment for not more than 93 days and to a fine of not more than $500.00.[10]
(ii) If the individual restrained or enjoined is less than 18 years of age, to the dispositional alternatives listed in . . . MCL 712A.18.”11 MCL 764.15b(1).
Reasonable cause to make an arrest means “having enough information to lead an ordinarily careful person to believe that the defendant committed a crime.” People v Freeman, 240 Mich App 235, 236-237 (2000) (“the arresting officer’s reliance on the LEIN information provided reasonable cause to believe that [the] defendant had notice of the [PPO] and had violated its provisions, thereby subjecting [the defendant] to [an] immediate arrest”).
MCL 28.243(1) requires law enforcement agencies to collect biometric data of individuals arrested for criminal contempt of court for an alleged violation of a PPO.
Note that MCL 764.9c(3)(b) prohibits a police officer from issuing an appearance ticket for persons subject to detainment for violation of a PPO.
c.Arraignment
“If the respondent is arrested for violation of a [PPO] as provided in MCL 764.15b(1), the court in the county where the arrest is made shall proceed as provided in MCL 764.15b(2)-(5), except as provided in this rule.” MCR 3.708(C)(1).
MCL 764.15b(2) requires the respondent who was arrested for a PPO violation under MCL 764.15b to be “brought before the family division of the circuit having jurisdiction in the cause within 24 hours after arrest to answer to a charge of contempt for violating the [PPO][.]” “If it appears that a circuit judge will not be available within 24 hours after [the] arrest, the respondent shall be taken, within that time, before a district court, which shall set bond and order the respondent to appear for arraignment before the family division of the circuit court in that county.” MCR 3.708(C)(3).12 “If the district court will not be open within 24 hours after [the] arrest, a judge or district court magistrate shall set bond and order the defendant to appear before the circuit court in the county for a hearing on the charge.” MCL 764.15b(3).
Note, however, that the court must not “rescind a [PPO], dismiss a contempt proceeding based on a [PPO], or impose any other sanction for a failure to comply with a time limit prescribed in [MCL 764.15b].” MCL 764.15b(8).
If the respondent is arrested in a county other than the one with which the PPO was issued, the hearing on the charged PPO violation may take place in either the arraigning court or the issuing court.13 See MCL 764.15b(5), which provides the “family division of circuit court in each county of [Michigan]” with jurisdiction to conduct contempt proceedings based on a PPO violation issued in Michigan or a valid foreign protection order.
“The [arraigning] court . . . shall notify the court that issued the [PPO] or foreign protection order that the issuing court may request that the defendant be returned to that court for violating the [PPO] or foreign protection order.”14 MCL 764.15b(5).
Because after-hours arrests are common in domestic violence cases, the editorial advisory committee suggests for courts to clearly communicate with law enforcement officers and jail officials about procedures following after-hours arrests.
Note also that the warrantless arrest statute and PPO court rules are silent as to the time with which the district court should schedule an arraignment. The editorial advisory committee suggests that the district court schedule the arraignment in circuit court for the earliest possible time and without unnecessary delay. See MCL 764.15b(2)(a) and MCR 3.708(F)(1)(a), which require the circuit court to set a hearing for an alleged PPO violation within 72 hours after the arrest, and MCR 6.104(A), which requires district courts15 and circuit courts to arraign an individual without unnecessary delay when the individual is arrested in a criminal case and who remains in custody.
2.Motion to Show Cause
“If the respondent violates the [PPO], the petitioner may file a motion, supported by appropriate affidavit, to have the respondent found in contempt.” MCR 3.708(B)(1). The court may not charge a fee for the filing of such motion. Id.
“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).
MCR 3.708(B)(2) requires 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.”
B.First Appearance or Arraignment Following Warrantless Arrest or Motion to Show Cause
At the respondent’s first court appearance before the circuit court whether for an arraignment under MCL 764.15b, or for a show cause proceeding, the court must:
“(1) advise the respondent of the alleged violation,
(2) advise the respondent of the right to contest the charge at a contempt hearing,
(3) advise the respondent that he or she is entitled to a lawyer’s assistance at the hearing and, if the court determines it might sentence the respondent to jail, that the court, or the local funding unit’s appointing authority if the local funding unit has determined that it will provide representation to respondents alleged to have violated a personal protection order, will appoint a lawyer at public expense if the individual wants one and is financially unable to retain one,
(4) if requested and appropriate, appoint a lawyer or refer the matter to the appointing authority,
(5) set a reasonable bond pending a hearing of the alleged violation,[16]
(6) take a guilty plea as provided in [MCR 3.708](E) or schedule a hearing as provided in [MCR 3.708](F).
As long as the respondent is either present in the courtroom or has waived the right to be present, on motion by either party, the court may use telephonic, voice, or videoconferencing technology to take testimony from an expert witness or, upon a showing of good cause, any person at another location.”17 MCR 3.708(D).
The notice of violation should advise the respondent whether the proceedings involve allegations of criminal or civil contempt and “the specific offense with which he [or she] is charged.” In re Contempt of Rochlin (Kane v Rochlin), 186 Mich App 639, 649 (1990).
MCR 3.708(E) permits a respondent to plead guilty to a PPO violation. Before a court accepts a guilty plea, while “speaking directly to the respondent and receiving the respondent’s response,” it must do the following:
“(1) advise the respondent that by pleading guilty the respondent is giving up the right to a contested hearing and, if the respondent is proceeding without legal representation, the right to a lawyer’s assistance as set forth in [MCR 3.708](D)(3),[18]
(2) advise the respondent of the maximum possible jail sentence for the violation,
(3) ascertain that the plea is understandingly, voluntarily, and knowingly made, and
(4) establish factual support for a finding that the respondent is guilty of the alleged violation.” MCR 3.708(E).
“The court must set a reasonable bond pending the [violation] hearing unless the court determines that release will not reasonably ensure the safety of the individuals named in the [PPO].” MCR 3.708(F)(1)(a).
The bond must be set within 24 hours after the respondent’s arrest for a PPO violation. MCL 764.15b(2)(b). See also MCR 3.708(D)(5) and MCR 3.708(F)(1)(a), which also require the court to set a reasonable bond pending a violation hearing.
If a circuit court judge is not available within 24 hours after a respondent’s arrest, the district court must set bond and “order the respondent to appear for arraignment before the family division of the circuit court in that county.” MCR 3.708(C)(3). See also MCL 764.15b(3). “If the district court will not be open within 24 hours after the [respondent’s] arrest, a judge or district court magistrate shall set bond and order the [respondent] to appear before the circuit court in the county for a hearing on the charge.” MCL 764.15b(3).
“If a respondent is released on bond pending the [violation] hearing, the bond may include any condition specified in MCR 6.106(D) necessary to reasonably ensure the safety of the individuals named in the [PPO], including continued compliance with the [PPO]. The release order shall also comply with MCL 765.6b.”19 MCR 3.708(F)(1)(b).
3.Timing of Violation Hearing
“Following the respondent’s appearance or arraignment, the court shall . . . [s]et a date for the [violation] hearing at the earliest practicable time except as required under MCL 764.15b.” MCR 3.708(F)(1).
“The [violation] hearing of a respondent being held in custody for an alleged violation of a [PPO] must be held within 72 hours after the arrest, unless extended by the court on the motion of the arrested individual or the prosecuting attorney.”20 MCR 3.708(F)(1)(a). See also MCL 764.15b(2)(a), which contains substantially similar language.
In all contempt proceedings involving an alleged PPO violation, the court may extend the time for holding the violation hearing pending the outcome of a separate prosecution “[i]f the alleged violation is based on a criminal offense that is a basis for a separate criminal prosecution, upon motion of the prosecutor[.]”21 MCR 3.708(F)(1)(c).
Note: State and federal constitutional guarantees against double jeopardy are of particular concern in contempt proceedings for alleged PPO violations because the behavior may also provide the basis for separate criminal charges. For a detailed discussion on the interplay between double jeopardy and contempt proceedings, see the Michigan Judicial Institute’s Contempt of Court Benchbook, Chapter 4.
The court must extend the violation hearing beyond the time period for holding the violation hearing (72 hours in arrest cases; as soon as practicable in appearance cases) but “for not less than 14 days or a lesser period requested if the prosecuting attorney [who is prosecuting the contempt proceeding] moves for adjournment.” MCL 764.15b(7).
Note, however, that the court must not “rescind a [PPO], dismiss a contempt proceeding based on a [PPO], or impose any other sanction for a failure to comply with a time limit prescribed in [MCL 764.15b].” MCL 764.15b(8).
4.Notification Requirements
Following the respondent’s appearance or arraignment, the court must provide notice to:
•“the prosecuting attorney of a criminal contempt proceeding.” MCR 3.708(F)(2). See also MCL 764.15b(2)(c); MCL 764.15b(4)(b).
•“the petitioner and his or her attorney, if any, of the contempt proceeding and direct the party to appear at the hearing and give evidence on the charge of contempt.” MCR 3.708(F)(3). See also MCL 764.15b(2)(d); MCL 764.15b(4)(a).
C.Prosecution of Criminal Contempt Proceeding
The prosecuting attorney must prosecute a criminal contempt proceeding, unless:
•the petitioner retains his or her own attorney for the criminal contempt proceeding. MCL 764.15b(7); MCR 3.708(G).
•the prosecutor determines that the PPO was not violated. MCL 764.15b(7).
•the prosecutor decides that it would not be in the interests of justice to prosecute the criminal contempt violation. MCL 764.15b(7).
See In re LT, 342 Mich App 126, 138 (2022) (“[T]he trial court denied [the respondent] the right to a fair hearing before a neutral judge because the court allowed petitioner to prosecute the contempt proceedings unrepresented by counsel, assisted petitioner with the presentation of his case, and otherwise rendered a verdict tainted by the court’s prior involvement with the parties.”).
“If the prosecuting attorney prosecutes the criminal contempt proceeding, the court may dismiss the proceeding upon motion of the prosecuting attorney for good cause shown.” MCL 764.15b(7). Note, however, that the court must not “dismiss a contempt proceeding based on a [PPO] . . . for a failure to comply with a time limit prescribed in [MCL 764.15b].” MCL 764.15b(8).
1.Jurisdiction
“The family division of circuit court in each county of [Michigan] has jurisdiction to conduct contempt proceedings based upon a violation of a [PPO] . . . issued by the circuit court in any county of this state or upon violation of a foreign protection order.” MCL 764.15b(5).22
If the respondent is arrested in a county other than the one within which the PPO was issued, the hearing on the charged PPO violation may take place in either the arraigning court or the issuing court. However, “[t]he [arraigning] court shall notify the court that issued the [PPO] or foreign protection order that the issuing court may request that the defendant be returned to that court for violating the [PPO] or foreign protection order.” MCL 764.15b(5).
Note: “If the court that issued the [PPO] or foreign protection order requests that the respondent be returned to that court to stand trial, the county of the requesting court shall bear the cost of transporting the respondent to that county.” MCL 764.15b(5).
“A contempt proceeding brought in a court other than the one that issued the [PPO] shall be entitled ‘In the Matter of Contempt of [Respondent].’” MCR 3.708(C)(2). The court clerk must provide the issuing court with a copy of all documents pertaining to the contempt proceeding. Id.
“[A] trial court lacked legal authority to try [the respondent] for criminal contempt unless the action was prosecuted by a prosecuting attorney or an attorney retained by [the petitioner].” In re LT, 342 Mich App 126, 139 (2022) (holding that “[t]he absence of a proper prosecutor constituted a jurisdictional defect rendering [the respondent’s] conviction void”; when an individual authorized to prosecute a respondent for criminal contempt does not appear at the hearing, the court must dismiss the matter “for want of jurisdiction”).
2.Hearing Procedures
MCR 3.708(H)(1)-(4) sets out the procedures for hearings on alleged PPO violations:
“(1) Jury. There is no right to a jury.
(2) Conduct of the Hearing. The respondent has the right to be present at the [violation] hearing, to present evidence, and to examine and cross-examine witnesses. As long as the respondent is either present in the courtroom or has waived the right to be present, on motion by either party, and with the consent of the parties, the court may use telephonic, voice, or videoconferencing technology to take testimony from an expert witness or, upon a showing of good cause, any person at another location.[23]
(3) Evidence; Burden of Proof. The rules of evidence apply to both criminal and civil contempt proceedings. The petitioner or the prosecuting attorney has the burden of proving the respondent’s guilt of criminal contempt beyond a reasonable doubt and the respondent’s guilt of civil contempt by clear and convincing evidence.[24]
(4) Judicial Findings. At the conclusion of the hearing, the court must find the facts specially, state separately its conclusions of law, and direct entry of the appropriate judgment. The court must state its findings and conclusions on the record or in a written opinion made a part of the record.”
The court must not “rescind a [PPO], dismiss a contempt proceeding based on a [PPO], or impose any other sanction for a failure to comply with a time limit prescribed in [MCL 764.15b].” MCL 764.15b(8).
3.Sentencing for Criminal Contempt
“If the respondent pleads or is found guilty of criminal contempt, the court shall impose a sentence of incarceration for not more than 93 days and may impose a fine of not more than $500.00.” MCR 3.708(H)(5)(a). See also MCL 600.2950(23) and MCL 600.2950a(23), which contain similar criminal contempt sanctions.
A PPO is enforceable under the Revised Judicature Act, MCL 600.1701 et seq.25 MCL 600.2950(25); MCL 600.2950a(25). MCL 600.1715(1) permits the court to punish a contemnor with a fine of not more than $7,500, imprisonment not to exceed 93 days, or “probation in the manner provided for persons guilty of a misdemeanor as provided in . . . MCL 771.1 to [MCL] 771.14a.”26
Because domestic violence can have lethal consequences, safety is of primary concern in imposing a sentence upon conviction of a PPO violation. There are many danger signals to look for when making a safety assessment. This is known as assessing any present “lethality factors.” For additional information on lethality indicators, see the Batterer Intervention Standards for the State of Michigan, Section 5.2, at http://www.biscmi.org/aboutus/docs/michigan_standards_final.html.
As part of the sentence for a conviction of criminal contempt, including probation, the court may order a person who is found guilty of criminal contempt for violation of a PPO to reimburse the state or a local unit of government for expenses incurred in relation to the PPO violation. MCL 769.1f(1)(i); MCL 769.1f(5). Reimbursable expenses incurred in relation to a PPO violation include but are not limited to the expenses for an emergency response and for prosecution. MCL 769.1f(1). MCL 769.1f(4) requires the payment of any court-ordered reimbursement to be made immediately, unless the court provides for payment within a specified period or in specified installments. For additional information on ordering reimbursement for state and local government enforcement of PPO violations, including a list of reimbursable expenses the court may order, see MCL 769.1f.
In addition to sentencing the respondent for a PPO violation:
•the court may also impose other conditions to the PPO. MCR 3.708(H)(5).
•the court may impose other penalties for other criminal offenses arising from the same conduct. MCL 600.2950(23); MCL 600.2950a(23).
MCL 769.16a(1) requires the clerk of the court to report to the Michigan State Police the final disposition of criminal contempt charges for violation of a PPO or a foreign protection order.
If fingerprints have not already been taken, the court must order as part of the sentence for a conviction of criminal contempt “that the fingerprints of the person convicted be taken and forwarded to the [Michigan State Police].”27 MCL 769.16a(5). The Michigan State Police must collect and file “criminal history record information on all persons arrested” for criminal contempt for violation of a PPO or a foreign protection order.28 MCL 28.242(1).
4.Sentencing for Civil Contempt
“If the respondent pleads or is found guilty of civil contempt, the court shall impose a fine or imprisonment as specified in MCL 600.1715.”29 MCR 3.708(H)(5)(b). See also MCL 600.2950(25) and MCL 600.2950a(25), which indicate that PPOs are enforceable under the Revised Judicature Act, MCL 600.1701 et seq.30
Specifically, MCL 600.1715 provides:
“(1) Except as otherwise provided by law, punishment for contempt may be a fine of not more than $7,500.00, or imprisonment which, except in those cases where the commitment is for the omission to perform an act or duty which is still within the power of the person to perform shall not exceed 93 days or both, in the discretion of the court. . . .
(2) If the contempt consists of the omission to perform some act or duty that is still within the power of the person to perform, the imprisonment shall be terminated when the person performs the act or duty or no longer has the power to perform the act or duty, which shall be specified in the order of commitment, and pays the fine, costs, and expenses of the proceedings, which shall be specified in the order of commitment.”
In addition to sentencing the respondent to jail and/or a fine for a PPO violation, the court may also “impose other conditions to the [PPO].” MCR 3.708(H)(5).