5.9Contempts Regarding Personal Protection Orders (PPO)¹

A respondent is subject to contempt for violating a PPO, and a petitioner is subject to contempt for making a false statement in support of his or her petition for a PPO. MCL 600.2950(23)-(24); MCL 600.2950a(23)-(24).

The Family Division of Circuit Court has jurisdiction to enforce PPOs. MCL 764.15b(5)-(6). See also MCL 712A.2(h).²

A.Contempt for Violation of a PPO

MCR 3.708 sets forth the procedures for a contempt proceeding regarding the violation of a PPO by an adult. PPOs, including some foreign protection orders issued under MCL 600.2950l, are 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. MCR 3.708(A)(1). See also MCL 600.2950l(1).

“[A] party may be held in criminal contempt for violating the plain, written conditions delineated in [a] PPO.” In re JCB, 336 Mich App 736, 738 (2021) (noting that “[u]nder MCL 600.2950a(23), a person who fails to comply with a PPO is subject to the criminal contempt powers of the court”).

1.Motion to Show Cause

“If the respondent violates the personal protection order, the petitioner may file a motion, supported by appropriate affidavit, to have the respondent found in contempt. There is no fee for such a motion. 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). See also MCL 764.15b(4)(b) (also requiring the court to notify the prosecuting attorney of the criminal contempt proceeding).

“The petitioner shall 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).

2.Arrest

“If the respondent is arrested for violation of a personal protection order 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 [MCR 3.708].” MCR 3.708(C)(1).

“A contempt proceeding brought in a court other than the one that issued the personal protection order shall be entitled ‘In the Matter of Contempt of [Respondent].’ The clerk shall provide a copy of any documents pertaining to the contempt proceeding to the court that issued the personal protection order.” MCR 3.708(C)(2).

“If it appears that a circuit judge will not be available within 24 hours after 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).

3.First Appearance or Arraignment

“At the respondent’s first appearance before the circuit court, whether for arraignment under MCL 764.15b, enforcement under MCL 600.2950, [MCL] 600.2950a, or [MCL] 600.1701, or otherwise, 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,

(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 of 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.” MCR 3.708(D).

4.Guilty Pleas

“The respondent may plead guilty to the violation. Before accepting a guilty plea, the court, speaking directly to the respondent and receiving the respondent’s response, must

(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)],

(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).

5.Scheduling the Hearing

“Following the respondent’s appearance or arraignment, the court shall do the following:

(1) Set a date for the hearing at the earliest practicable time except as required under MCL 764.15b.

(a) The hearing of a respondent being held in custody for an alleged violation of a personal protection order 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. The court must set a reasonable bond pending the hearing unless the court determines that release will not reasonably ensure the safety of the individuals named in the personal protection order.

(b) If a respondent is released on bond pending the 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 personal protection order, including continued compliance with the personal protection order. The release order shall also comply with MCL 765.6b.

(c) If the alleged violation is based on a criminal offense that is a basis for a separate criminal prosecution, upon motion of the prosecutor, the court may postpone the hearing for the outcome of that prosecution.

(2) Notify the prosecuting attorney of a criminal contempt proceeding.

(3) Notify 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).

Charges for violation of a PPO must be dismissed if a contempt hearing is not held within 72 hours of an arrest if the time is not extended on a motion supported by good cause to support the extension as required by MCL 764.15b(2) and MCR 3.708(F)(1). In re Contempt of Tanksley, 243 Mich App 123, 128-129 (2000). The dismissal is without prejudice to the prosecution’s ability to reinstate the charge against the respondent. Id. at 129.

6.Prosecution After Arrest

“In a criminal contempt proceeding commenced under MCL 764.15b, the prosecuting attorney shall prosecute the proceeding unless the petitioner retains his or her own attorney for the criminal contempt proceeding.” MCR 3.708(G). A “trial court lack[s] legal authority to try [a respondent] for criminal contempt unless the action [is] prosecuted by a prosecuting attorney or an attorney retained by [the petitioner].” In re LT, 342 Mich App 126, 139 (2022). “The absence of a proper prosecutor constitute[s] a jurisdictional defect rendering [a] conviction void.” Id. at 139 (noting that “the trial court had no power to try [the respondent] for criminal contempt when neither the prosecuting attorney nor counsel for [the respondent] appeared on the day set for trial,” and “[a]t that point, the trial court should have dismissed the case for want of jurisdiction”). Accordingly, “the trial court denied [the respondent] the right to a fair hearing before a neutral judge [where] 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.” Id. at 138.

7.The Violation Hearing

The respondent does not have a right to a jury trial for violation of a PPO. MCR 3.708(H)(1). See also Brandt v Brandt, 250 Mich App 68, 72, 76 (2002) (further noting that a respondent in a contempt proceeding does not have the right to allocution because MCR 3.708 governs actions regarding the violation of a PPO not MCR 6.425(C)(2)(c)).³

“The respondent has the right to be present at the 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 of 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.” MCR 3.708(H)(2). However, the “respondent cannot relitigate the validity of the PPO in his challenge to the criminal contempt.” In re JCB, 336 Mich App 736, 750 (2021).

“The rules of evidence apply to both criminal and civil contempt proceedings.” MCR 3.708(H)(3).

Burden of Proof. “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.” MCR 3.708(H)(3).

Note that “one who holds a PPO is under no obligation to act in a certain way. Instead, [when determining if a PPO has been violated,] a court must look only to the behavior of the individual against whom the PPO is held.” In re Kabanuk, 295 Mich App 252, 256-258 (2012) (holding that there was “competent evidence” to find that the PPO was violated when the respondent approached and confronted the holder of the PPO at a courthouse and “lunged toward” her while insulting her and saying she hated her; the fact that some witness testimony was contradictory did not change the Court’s holding because the Court of Appeals does not weigh the evidence or the credibility of witnesses).

“[T]he trial court needs to have the ability to examine and consider the totality of the circumstances when ruling on a PPO petition.” In re SB, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted). “[I]n determining whether respondent’s conduct constituted ‘stalking,’ conduct plainly prohibited by the PPO, it was appropriate for the trial court to evaluate the combined effect of respondent’s ‘repeated or continuing acts’ to determine, beyond a reasonable doubt, whether they rose to the level of a ‘willful pattern of conduct involving repeated or continuing harassment’ that ‘would cause a reasonable individual to feel terrorized, frightened, intimidated, threatened, harassed, or molested’ and that actually caused petitioner to feel that way.” SB, ___ Mich App at ___, quoting MCL 750.411h(1)(e).

In order to present sufficient evidence to support criminal contempt premised on a violation of a PPO, a “petitioner [is] not required to demonstrate anew the requirements necessary to obtain a PPO.” In re JCB, 336 Mich App at 750-751. There was sufficient evidence to support the respondent’s conviction of criminal contempt where the trial court did not find respondent’s testimony credible, and instead credited evidence “that petitioner was harassed and attacked by respondent” in violation of the express terms of the PPO, which also “plainly apprised respondent that if he committed a listed prohibited act, he was subject to immediate arrest and civil and criminal contempt”; accordingly, “[r]espondent’s contention that petitioner had to demonstrate a pattern of action before seeking to hold respondent in criminal contempt [was] not supported by the language of the order.” Id. at 751-753 (noting that “all relevant present and past incidents arising between the parties [was] pertinent for consideration” where the PPO was premised on the stalking statute).

There was sufficient evidence to support the respondent’s conviction of criminal contempt where there was testimony that the respondent made contact with the person who the holder of the PPO was having an affair with and gave him a dollar bill with insults written on it and told him “next time you talk to [the holder of the PPO], tell her I said this.” Brandt, 250 Mich App at 73-74.

There was sufficient evidence to support the respondent’s conviction of criminal contempt where the holder of the PPO was tagged in a Facebook comment and testified that “based on her long history with [the respondent], she was confident the posts originated from him, as the posts were consistent with his style and the content of his past social-media use.” ARM v KJL, 342 Mich App 283, 296 (2022). Further, circumstantial evidence supported the conclusion that the respondent’s sister—who testified that she was the person who created and controlled the profile that tagged the holder of the PPO—posted messages requested by the respondent word-for-word despite her testimony that she did not post word-for-word messages. Id. at 296-297 (considering recorded phone calls made by the respondent where he directed other people to post to Facebook accounts using specific language and spacing, and noting that although these calls were made after petitioner moved to show cause they were relevant, circumstantial evidence that the respondent had a scheme, plan, or system of directing messages posted on various Facebook sites and suggested that this sort of coordination was common practice).

Required 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.” MCR 3.708(H)(4).

The trial court complied with the requirement to make factual findings in MCR 3.708(H)(4) by adopting the proposed findings of fact submitted by the petitioner. Brandt, 250 Mich App at 73.

8.Sentencing

“If the respondent pleads or is found guilty of criminal contempt, the court shall impose a sentence of incarceration for no more than 93 days and may impose a fine of not more than $500.00.” MCR 3.708(H)(5)(a).

“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 and [MCL] 600.1721.” MCR 3.708(H)(5)(b).

The defendant may be ordered to pay certain expenses upon a finding of guilt for criminal contempt for violation of a PPO issued under MCL 600.2950 or MCL 600.2950a, for violation of a foreign protection order that satisfies the conditions for validity provided in MCL 600.2950i. MCL 769.1f(1)(i). Specifically, “in addition to any other penalty authorized by law, the court may order the person convicted to reimburse the state or a local unit of government for expenses incurred in relation to that incident including, but not limited to, expenses for an emergency response and expenses for prosecuting the person[.]” MCL 769.1f(1).⁴

“In addition to such a sentence, the court may impose other conditions to the personal protection order.” MCR 3.708(H).

“[I]t is appropriate for the trial court to determine when sentencing a respondent for criminal contempt for violating a PPO what, if any, additional conditions are warranted to adequately protect the petitioner going forward.” In re SB, ___ Mich App ___, ___ (2024). The Court concluded “that ‘other conditions’ under MCR 3.708(H)(5) do indeed include modifications to a PPO’s expiration date.” SB, ___ Mich App at ___. “Accordingly, the dates specifying when a PPO is in effect constitute a ‘condition’—i.e., a stipulation, provision, prerequisite, or qualification—to the PPO.” Id. at ___.

“[A] court may not deprive a prisoner of good-time credit to which the prisoner may be entitled under statute before that prisoner has even begun serving the term of imprisonment.” ARM v KJL, 342 Mich App 283, 302-303 (2022) (quotation marks and citation omitted) (holding that the sentence credit statute was violated where the trial court’s sentencing orders specified that the respondent was not entitled to credit on the basis of a local sheriff’s policy that categorically prohibited certain offenders from earning good-time credit, including offenders incarcerated for contempt of court).

“‘A consecutive sentence may be imposed only if specifically authorized by statute.’” People v Veilleux, 493 Mich 914, 914 (2012), quoting People v Lee, 233 Mich App 403, 405 (1999). See also People v Chambers, 430 Mich 217, 222 (1988). Note that the statutes under which PPOs are enforceable do not authorize consecutive sentences. See MCL 600.2950; MCL 600.2950a; MCL 764.15b; MCL 600.1701.

The respondent was not denied an individualized sentence where the trial court stated that it “has a policy of a 30-day jail time” for violations of PPOs because the trial court further explained that it was “not going to change it for [the respondent’s] case” and was going to apply its 30-day sentence; thus, the trial court was “simply explaining that, in a typical contempt of court case, it believed that a thirty-day sentence was appropriate[,]” and it thought the respondent’s case was typical. Brandt, 250 Mich App at 76-77 (noting that the 30-day sentence was less than the maximum sentence of 93 days’ jail time and that the evidence supported the inference that the respondent’s violation of the PPO was typical).

9.Videoconferencing

“The use of videoconferencing technology under [MCR 3.708] must be in accordance with the standards established by the State Court Administrative Office.^[5] All proceedings at which videoconferencing technology is used must be recorded verbatim by the court.” MCR 3.708(I). See also MCR 2.407, the court rule governing videoconferencing in trial court proceedings. For additional information and resources pertaining to remote proceedings, visit the Virtual Courtrooms webpage.⁶

10.Statutory Grounds and Sanctions

Grounds for obtaining a PPO are set forth in MCL 600.2950 (“domestic relationship” PPOs) and MCL 600.2950a (non-domestic relationship “stalking” PPOs and non-domestic sexual assault PPOs). Violation of a PPO subjects the adult offender to sanctions as provided in MCL 600.2950 and MCL 600.2950a, which provide for criminal contempt penalties consisting of a maximum 93-day jail term and a possible fine of not more than $500:

“An individual who is 17 years of age or more and who refuses or fails to comply with a [PPO] under this section is subject to the criminal contempt powers of the court and, if found guilty, shall be imprisoned for not more than 93 days and may be fined not more than $500.00.” MCL 600.2950(23). See also MCL 600.2950a(23); MCR 3.708(H)(5)(a) (containing similar provisions).

Additionally, “MCR 3.708(H)(5) can be reasonably construed as granting the trial court discretion to impose different or additional stipulations, provisions, qualifications, or prerequisites to the PPO—i.e., to limit or expand the scope of the PPO—when sentencing a respondent for criminal contempt.” In re SB, ___ Mich App ___, ___ (2024). “Construing MCR 3.708(H)(5) as permitting the trial court to extend the PPO at sentencing is reasonable because the respondent’s guilt has been established, and the trial court has been fully apprised of the situation between the parties such that it can readily evaluate the need to impose ‘other conditions’ to the PPO, such as, in this case, extending its expiration date.” SB, ___ Mich App at ___.

“MCR 3.708(H)(5) explicitly provides different punishments for criminal-contempt cases involving a PPO violation and civil-contempt cases involving a PPO violation . . . .” LAC v GLS, ___ Mich App ___, ___ (2024). MCL 600.1715 and MCL 600.1721 “provide a specific punishment for a PPO violation that does not include the assessment of attorney fees.” LAC, ___ Mich App at ___. “[O]nly MCR 3.708(H)(5)(b) permitted the award of costs as set forth in MCL 600.1715 and MCL 600.1721 for civil contempt.” LAC, ___ Mich App at ___.

Further, “[t]axation of costs is generally not allowed absent authority flowing from a statute or court rule.” LAC, ___ Mich App at ___ (quotation marks and citation omitted). “There is nothing in the sentencing scheme in MCR 3.708(H)(5) that expresses an abrogation of this general rule in the case of contempt as a result of a PPO violation.” LAC, ___ Mich App at ___ (quotation marks and citation omitted). “Therefore, criminal contempt sanctions under [MCR 3.708(H)(5)(a)] do not include the indemnification provisions of MCL 600.1721.” LAC, ___ Mich App at ___ (quotation marks and citation omitted). Thus, “the trial court erred when it ruled that attorney fees may be awarded in a criminal contempt proceeding for violation of a PPO.”⁷ Id. at ___.

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. 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); MCL 600.2950a(25). See also MCR 3.708(H)(5)(b). The person injured by a PPO violation may also recover damages under MCL 600.1721.⁸ See also MCR 3.708(H)(5)(b).

11.Right to Free Speech

“[T]he domestic PPO statutory scheme specifically exempts from its reach the protected speech of those covered by an order, MCL 600.2950(1)(j); [MCL 750.411h(1)(d)].” ARM v KJL, 342 Mich App 283, 297 (2022). A PPO order prohibiting the respondent from stalking the petitioner did not include a prior restraint on speech on its face where the stalking statute “specifically exempts ‘constitutionally protected activity’ from the scope of harassment that can constitute stalking.” Id. at 299, quoting MCL 750.411h(1)(d). Further, “[w]hile a person subject to a PPO does not give up the constitutional right to free speech merely by being subject to an order, the right to speak freely is not absolute.” ARM, 342 Mich App at 299 (quotation marks and citation omitted). “[A] person’s right to free speech must be understood in light of another person’s interest in being left alone.” Id. The basis of respondent’s contempt conviction was his action of tagging the petitioner in a post, “thereby ensuring that she would receive notification of the post,” and this contact with the petitioner violated her “right to be left alone, as embodied by the PPO.” Id. at 300. “The violation of the PPO did not result from the content of the post—rather, the violation resulted from the tagged contact.” Id. “Accordingly, because the trial court found [the respondent] in contempt for electronically contacting [the petitioner], rather than for the content of the speech he used to do so, the contempt finding did not violate [the respondent’s] right to freedom of speech.” Id. at 300-301 (noting that “had [the respondent] made the post about [the petitioner] without applying a tag, the post likely would have been protected speech”).

B.Contempt for False Statement in Support of PPO

Providing a false statement in support of a PPO petition subjects the petitioner to sanctions as provided in       MCL 600.2950 (“domestic relationship” PPOs) and MCL 600.2950a (non-domestic relationship “stalking” PPOs and non-domestic sexual assault PPOs). These statutes provide that “[a]n individual who knowingly and intentionally makes a false statement to the court in support of his or her petition for a [PPO] is subject to the contempt powers of the court.” MCL 600.2950(24). See also MCL 600.2950a(24) for a substantially similar provision.