5.2​Nondomestic Sexual Assault Personal Protection Orders (PPOs)⁹

MCL 600.2950a governs nondomestic personal protection orders (PPOs) (domestic relationship PPOs¹⁰ are governed by MCL 600.2950). Nondomestic PPOs that expressly address stalking are governed by MCL 600.2950a(1) and enjoin a person from engaging in stalking behavior, regardless of that person’s relationship with the individual being stalked. MCL 600.2950a(2) governs nondomestic PPOs in sexual assault cases. This section is limited to a discussion of nondomestic PPOs involving sexual assault.

A.​Initiating a Nondomestic Sexual Assault PPO

1.​Petition for a PPO

An individual may petition the court under MCL 600.2950a(2) for a PPO restraining or enjoining another individual from any of the conduct listed in MCL 600.2950a(3). According to MCL 600.2950a(2), the petitioner may start an independent action to obtain a PPO, or the petitioner may join a claim to, or file a motion in, an action in which the petitioner and the individual to be restrained are parties. MCL 600.2950a(2). However, the methods available for initiating a PPO under MCL 600.2950a conflict with the method of initiating a PPO under MCR 3.703(A). While the statute allows for a PPO to be initiated as part of another action or as an independent action, MCR 3.703(A) expressly states that an action for a PPO is an independent action that “may not be commenced by filing a motion in an existing case or by joining a claim to an action.” (Emphasis added.) If initiating an action by motion as part of an existing action, by joining a claim to an existing action, or by actually beginning an action independent of the existing action, constitute procedural matters, the court rule would govern the initiation of PPO proceedings. See MCR 1.103. This issue has not been addressed by an appellate court.

“A petitioner may omit his or her address of residence from documents filed with the court under [MCL 600.2950a]. If a petitioner omits his or her address of residence, the petitioner shall provide the court a mailing address.” MCL 600.2950a(6).

“An individual who knowingly and intentionally makes a false statement to a court in support of his or her petition for a [PPO] is subject to the contempt powers of the court.” MCL 600.2950a(24).¹¹

2.​Hearing on a Petition for a PPO

a.​Scheduling

If a petitioner does not request an ex parte order, or the petitioner has requested a hearing after the court refused to grant an ex parte order, the court must schedule a hearing as soon as possible. MCR 3.705(B)(1). However, no hearing need be scheduled if, after interviewing the petitioner, the court determines “that the claims are sufficiently without merit [and] that the action should be dismissed without a hearing[.]” MCR 3.705(B)(1)(a)-(b).

Notice. The petitioner must serve the respondent with notice of the hearing along with the petition as provided in MCR 2.105(A).¹² MCR 3.705(B)(2). Two days’ notice of a hearing on a petition for a PPO under MCL 600.2950a(2) is sufficient. MCR 3.705(B)(2).

b.​Record

“The hearing shall be held on the record.” MCR 3.705(B)(3). The court may permit videoconferencing technology in accordance with MCR 2.407. MCR 3.705(B)(3).

c.​Attending the Hearing

The petitioner is required to attend the hearing, and if the petitioner fails to attend, the court may either adjourn and reschedule the hearing or dismiss the petition. MCR 3.705(B)(4).¹³

If the respondent does not appear at the hearing and the court determines that diligent efforts to serve the respondent were made whether the respondent was served or not, the court may enter the PPO without further notice to the respondent if the court determines that the petitioner is entitled to relief. MCR 3.705(B)(5).

3.​Rape-Shield Statute Applies¹⁴

The rape-shield statute, MCL 750.520j, addresses the admissibility of specific instances of a victim’s sexual conduct and opinion or reputation evidence of a victim’s sexual conduct in matters arising under MCL 750.520b–MCL 750.520g. MCL 750.520j(1). The rape-shield statute “applies in any hearing on a petition for, a motion to modify or terminate, or an alleged violation of a [PPO] requested or issued under [MCL 600.2950a(2).]” MCL 600.2950a(4). However, the following time requirements apply to the motion and offer of proof required when a respondent proposes to present evidence covered by the rape-shield statute:

“(a) The written motion and offer of proof must be filed at least 24 hours before a hearing on a petition to issue a [PPO] or on an alleged violation of a [PPO].

(b) The written motion and offer of proof must be filed at the same time that a motion to modify or terminate a [PPO] is filed.” MCL 600.2950a(4).

Note that the timing of a motion and offer of proof seeking the admission of evidence governed by the rape-shield statute in PPO cases differs from the timing set forth in the rape-shield statute for the admission of such evidence. See MCL 750.520j(2).

B.​Issuing a Nondomestic Sexual Assault PPO¹⁵

1.​Court’s Decision on a Petition for a Nondomestic Sexual Assault PPO

In a PPO proceeding under MCL 600.2950a, the court must immediately state in writing the specific reasons for issuing or denying a PPO. MCL 600.2950a(7); MCR 3.705(B)(6). If the court’s decision on a petition for a PPO follows a hearing, the court must also immediately state on the record the specific reasons for issuing or refusing to issue a PPO. MCL 600.2950a(7); MCR 3.705(B)(6).

If a nondomestic PPO is issued, the PPO must state its expiration date clearly, and the date must appear on the face of the order. MCL 600.2950a(11)(d); MCR 3.706(A)(4). 

2.​PPO Must Be Issued

The family division of circuit court must issue a PPO against a respondent “if the court determines that the respondent has been convicted of a sexual assault of the petitioner or that the respondent was convicted of furnishing obscene material to the petitioner under . . .  MCL 750.142, or a substantially similar law of the United States, another state, or a foreign country or tribal or military law.” MCL 600.2950a(2)(a).

3.​PPO May Be Issued

The court may issue a PPO “if the petitioner has been subjected to, threatened with, or placed in reasonable apprehension of sexual assault by the individual to be enjoined.” MCL 600.2950a(2)(b). The court must not issue a PPO under MCL 600.2950a(2)(b) “unless the petition alleges facts that demonstrate that the respondent has perpetrated or threatened sexual assault against the petitioner.” Id. “Evidence that a respondent has furnished obscene material to a minor petitioner is evidence that the respondent has threatened sexual assault against the petitioner.” Id. The court may issue a PPO under MCL 600.2950a(2)(b) without regard to whether the respondent was charged with or convicted of sexual assault or of violating MCL 750.142, or a substantially similar federal, state, foreign, tribal, or military law. MCL 600.2950a(2)(b).

4.​PPO Must Not Be Issued

A court must not issue a nondomestic sexual assault PPO under MCL 600.2950a if:

•​the respondent is the petitioner’s unemancipated minor child. MCL 600.2950a(27)(a).

•​the petitioner is the respondent’s unemancipated minor child. MCL 600.2950a(27)(b).

•​the respondent is a minor child under the age of 10. MCL 600.2950a(27)(c).

•​the petitioner is a prisoner. MCL 600.2950a(30). If a court erroneously issues a PPO to a petitioner who is a prisoner, the court must “rescind the [PPO] upon notification and verification that the petitioner is a prisoner.” Id.

Additionally, “[a] court shall not issue a mutual personal protection order.” MCL 600.2950a(8). See also MCR 3.706(B). “Correlative separate personal protection orders are prohibited unless both parties have properly petitioned the court under [MCL 600.2950a(1) or MCL 600.2950a(2)].” MCL 600.2950a(8).

C.​Conduct Subject to a Nondomestic Sexual Assault PPO

“The court may restrain or enjoin an individual against whom a [nondomestic sexual assault PPO] is sought under [MCL 600.2950a(2)] from 1 or more of the following:

(a) Entering onto premises.

(b) Threatening to sexually assault, kill, or physically injure petitioner or a named individual.

(c) Purchasing or possessing a firearm.

(d) Interfering with the petitioner’s efforts to remove the petitioner’s children or personal property from premises that are solely owned or leased by the individual to be restrained or enjoined.

(e) Interfering with the petitioner at the petitioner’s place of employment or education or engaging in conduct that impairs the petitioner’s employment or educational relationship or environment.

(f) Following or appearing within the sight of the petitioner.

(g) Approaching or confronting the petitioner in a public place or on private property.

(h) Appearing at the petitioner’s workplace or residence.

(i) Entering onto or remaining on property owned, leased, or occupied by the petitioner.

(j) Contacting the petitioner by telephone.

(k) If the petitioner is a minor who is enrolled in a public or nonpublic school that operates any of grades K to 12, attending school in the same building as the petitioner.

(l) Sending mail or electronic communications to the petitioner.

(m) Placing an object on, or delivering an object to, property owned, leased, or occupied by the petitioner.

(n) Engaging in conduct that is prohibited under . . . MCL 750.411s [electronic communication].

(o) Any other specific act or conduct that imposes upon or interferes with personal liberty or that causes a reasonable apprehension of violence or sexual assault.” MCL 600.2950a(3). 

D.​Constitutionality of PPOs

“MCL 600.2950a provides sufficient procedural safeguards to satisfy due process.” IME v DBS, 306 Mich App 426, 437 (2014) (recognizing the substantially similar safeguards in both MCL 600.2950 and MCL 600.2950a), citing Kampf v Kampf, 237 Mich App 377, 383-386 (1999). The Kampf Court stated that “[t]here is no procedural due process defect [under MCL 600.2950] in obtaining an emergency order of protection without notice to a respondent when the petition for the emergency protection order is supported by affidavits that demonstrate exigent circumstances justifying entry of an emergency order without prior notice, and where there are appropriate provisions for notice and an opportunity to be heard after the order is issued.” Kampf, 237 Mich App at 383-384 (citation omitted). Because the procedural safeguards in MCL 600.2950a “are substantially similar to the procedural safeguards provided under MCL 600.2950,” the procedural safeguards set out in MCL 600.2950a satisfy due process. IME, 306 Mich App at 437. Those safeguards are found in the following subsections:

•​MCL 600.2950a(1)-(2), issuing a PPO.

•​MCL 600.2950a(13), filing a motion to modify or rescind an ex parte PPO.

•​MCL 600.2950a(14), hearing on a motion to modify or rescind an ex parte PPO.

•​MCL 600.2950a(18), giving notice to respondent of the PPO.

•​MCL 600.2950a(22), giving the respondent actual notice of the PPO and an opportunity to comply with the PPO before arresting the respondent whenever a law enforcement officer responding to a call that a PPO was violated discovers that the respondent had no notice of the PPO.

“When issuing a PPO under MCL 600.2950a(2)(a), a trial court may restrain or enjoin a variety of conduct.” IME, 306 Mich App at 440. In IME, the respondent argued that “[MCL 600.2950a] impermissibly allows a court to issue a PPO that—in theory—could interfere with a variety of fundamental rights[.]” IME, 306 Mich App at 439 (the respondent argued that the PPO issued by the court denied him his constitutional right to bear arms). The Court of Appeals concluded that MCL 600.2950a(2)(a) “does not on its face impair a fundamental right,” IME, 306 Mich App at 441, and that several reasons exist to support a petitioner’s right to the issuance of a PPO enjoining from specific conduct the respondent who sexually assaulted the petitioner. Id. at 442-443. “The Legislature’s decision to allow the victims of sexual assault to seek [PPOs] against the persons convicted of assaulting them is reasonably related to the legitimate government purpose of protecting the victims of sexual assault from further victimization.” Id. at 443. In addition, “trial courts have substantial discretion to fashion a PPO that balances the petitioner’s need for appropriate protection and the respondent’s liberty interests.” Id. “Th[e] flexibility [involved in issuing a PPO] advances the Legislature’s interest in protecting the victims of sexual assault while ensuring that the perpetrators’ liberty interests are not arbitrarily or unreasonably restrained.” Id. at 444.

“PPO proceedings are civil in nature”; however, “because of the potential criminal consequences for a respondent’s violation of a PPO, and the liberty interests at stake, . . . plain-error review . . . applies to unpreserved issues in PPO proceedings.” HMM v JS, ___ Mich App ___, ___ (2024).

E.​Notice to Respondent of a PPO

“A [PPO] issued under [MCL 600.2950a] must be served personally, by registered or certified mail, return receipt requested, delivery restricted to the addressee at the last known address or addresses of the individual restrained or enjoined or by any other method allowed by the Michigan court rules.” MCL 600.2950a(18). See also MCR 3.706(D).

Failure to serve a respondent with a PPO “does not affect [the PPO’s] validity or effectiveness.” MCR 3.706(D). See also MCL 600.2950a(18) (a PPO’s immediate effectiveness or immediate enforcement is not affected by whether the respondent has been served with the PPO).

A respondent who has not been served may, or in some circumstances, must be served with a true copy or given oral notice of the PPO by a law enforcement officer. See MCL 600.2950a(18) (allowing an officer, at any time, to either serve an actual copy or “advise the individual” of the PPO’s existence, the conduct enjoined, the penalties for violating the PPO, and where the individual may obtain a copy); MCL 600.2950a(22) (requiring an officer who discovers, when responding to a call for a PPO violation, that the respondent had no notice of the PPO, to either serve an actual copy or “advise the individual” of the PPO’s existence, the conduct enjoined, the penalties for violating the PPO, and where the individual may obtain a copy); MCR 3.706(E). “A proof of service or proof of oral notice must be filed with the clerk of the court issuing the [PPO].” MCL 600.2950a(18). See also MCL 600.2950a(22); MCR 3.706(E).

In cases where a police officer responds to a call that a PPO was violated and discovers that the respondent had no notice of the PPO against him or her, the officer must give the respondent the opportunity to comply with the PPO before being arrested for violating it. MCL 600.2950a(22).

F.​Violation and Enforcement of a PPO

A PPO issued under MCL 600.2950a is effective and immediately enforceable anywhere in Michigan as soon as the order is signed by a judge. MCL 600.2950a(9).¹⁶ After a PPO has been served on the respondent, the PPO is also enforceable by another state, an Indian tribe, or a territory of the United States. Id.

At a respondent’s first appearance in circuit court for the enforcement of a PPO issued under MCL 600.2950a, the court must advise the respondent as provided in MCR 3.708(D)(1)-(6).

Specifically, PPOs are enforceable under MCL 600.2950(23), MCL 600.2950a(23),¹⁷ MCL 764.15b, and MCL 600.1701. Under MCL 600.2950a, an individual 17 years of age or older who refuses or fails to comply with the conditions of a PPO issued against him or her is subject to the criminal contempt powers of the court.¹⁸ MCL 600.2950a(23). “The criminal penalty under [MCL 600.2950a] may be imposed in addition to any penalty that may be imposed for any other criminal offense arising from the same conduct.” MCL 600.2950a(23).

A PPO issued under MCL 600.2950a may also be enforced under MCL 764.15b. MCL 600.2950a(25). MCL 764.15b(1)(a)-(c) authorize a peace officer to arrest an individual, without a warrant, when the officer has reasonable cause to believe, or when the officer has positive information that another peace officer has reasonable cause to believe, all of the following:

•​a PPO was issued under MCL 600.2950a or there is a valid foreign protection order,

•​the individual against whom the PPO was issued violated or is violating the PPO,¹⁹ and

•​if the PPO was issued under MCL 600.2950a, the PPO states on its face that the individual who violates the terms of the PPO is subject to immediate arrest.

An individual 18 years of age or older who violates a PPO issued under MCL 600.2950a is subject to criminal contempt of court and if found guilty of criminal contempt, he or she is subject to not more than 93 days of imprisonment and a fine of no more than $500. MCL 764.15b(1)(c)(i).

G.​Motion to Modify or Terminate a PPO²⁰

When the respondent is a person licensed to carry a concealed weapon and who must carry it as a condition of their employment or a law enforcement officer specified in MCL 600.2950a(5) who carries a firearm during the normal course of their employment, the court must schedule a motion to modify or terminate a PPO within five days of when the motion was filed. MCR 3.707(A)(2).

H.​Ex Parte PPOs

1.​Petition for an Ex Parte PPO

A petition requesting an ex parte PPO “must set forth specific facts showing that immediate and irreparable injury, loss, or damage will result to the petitioner from the delay required to effect notice or from the risk that notice will itself precipitate adverse action before an order can be issued.” MCR 3.703(G).

2.​Time for Ruling on an Ex Parte PPO

“The court must rule on a request for an ex parte order within one business day of the filing date of the petition.” MCR 3.705(A)(1).

3.​Granting an Ex Parte PPO

The court must grant an ex parte order “[i]f it clearly appears from specific facts shown by verified complaint, written petition, or affidavit that the petitioner is entitled to relief [and] if immediate and irreparable injury, loss, or damage will result from the delay required to effectuate notice or . . . notice will itself precipitate adverse action before a [PPO] can be issued.” MCR 3.705(A)(2).²¹ See also MCR 3.703(G) and MCL 600.2950a(12), which contain substantially similar language. In a proceeding under MCL 600.2950a, “the court must state in writing the specific reasons for issuance of the [ex parte PPO].” MCR 3.705(A)(2).

“A petitioner bears the burden of proof when seeking to obtain an ex parte PPO.” HMM v JS, ___ Mich App ___, ___ (2024) (cleaned up). “In Michigan, there are two aspects of the ‘burden of proof’—the burden of persuasion and the burden of going forward with the evidence.” Id. at ___ (quotation marks and citation omitted). “Although the latter burden might shift throughout a proceeding as evidentiary presumptions rise and fall, the former burden always remains with the petitioner.” Id. at ___ (citations omitted).

4.​Refusing to Grant Ex Parte PPO

If the court refuses to grant the petition, the court must state in writing its reasons for refusing to grant an ex parte PPO. MCR 3.705(A)(5). Additionally, if the court denies the petition for an ex parte PPO, the court must advise the petitioner of his or her right to request a hearing as described in MCR 3.705(B) within 21 days of the order’s entry. MCR 3.705(A)(5). If no hearing is requested, the ex parte PPO becomes final. Id.

5.​Record Made of Evidence Supporting Ex Parte PPO

“A permanent record or memorandum must be made of any nonwritten evidence, argument or other representations made in support of issuance of an ex parte order.” MCR 3.705(A)(2). See, e.g., HMM v JS, ___ Mich App ___, ___ (2024), where the trial court’s order denying respondent’s motion to terminate the ex parte PPO against him was vacated and the matter was remanded because “the procedure employed at the hearing did not permit the circuit court to consider the evidence properly, nor did the circuit court require petitioner to establish that she had been sexually assaulted or was in reasonable apprehension of sexual assault.” The trial court allowed petitioner to testify off-camera and significantly limited respondent’s ability to cross-examine her about the sexual assault allegation in her petition. Id. at ___. The Court found that the record on appeal was inadequate to determine if plaintiff met her burden of proof to obtain an ex parte PPO under MCL 600.2950a(2)(b). HMM, ___ Mich App at ___.

6.​Duration of Ex Parte PPO

An ex parte PPO is valid for not less than 182 days. MCL 600.2950a(13); MCR 3.705(A)(3). The order must state the date it expires. MCR 3.705(A)(3).

7.​Service of an Ex Parte PPO

“If an ex parte order is entered, the petitioner shall serve the petition and order as provided in MCR 3.706(D).^[22] However, failure to make service does not affect the order’s validity or effectiveness.” MCR 3.705(A)(4).

8.​Motion to Modify or Rescind an Ex Parte PPO

“The individual restrained or enjoined may file a motion to modify or rescind the [PPO] and request a hearing under the Michigan court rules. A motion to modify or rescind the [PPO] must be filed within 14 days after the order is served or after the individual restrained or enjoined receives actual notice of the [PPO] unless good cause is shown for filing the motion after 14 days have elapsed.” MCL 600.2950a(13).²³ See also MCR 3.707(A)(1)(b).

A hearing on a respondent’s motion to modify or rescind a PPO must be scheduled and held within 14 days after the motion is filed. MCL 600.2950a(14); MCR 3.707(A)(2). If the respondent is a person described in MCL 600.2950a(5) (listing individuals who are authorized to carry a weapon and must do so as condition of their employment or in the normal course of their employment), and the PPO prohibits the respondent from purchasing or possessing a firearm, the court must schedule a hearing on the respondent’s motion to modify or rescind the PPO within five days after the motion is filed. MCL 600.2950a(14); MCR 3.707(A)(2).

“[O]n a motion to terminate or modify [an] ex parte PPO, the burden of proof remains with a petitioner who seeks to establish a justification for the continuance of a PPO.” HMM v JS, ___ Mich App ___, ___ (2024) (cleaned up).²⁴ It was an abuse of discretion for the circuit court to shift the burden of proof to respondent. Id. at ___.

“Due-process protections apply to proceedings on a motion to terminate a PPO.” Id. at ___. “Due process mandates an opportunity for the respondent to present evidence at a hearing to terminate a PPO, and this includes the opportunity for meaningful cross examination.” Id. at ___(quotation marks and citations omitted). “[T]he circuit court abused its discretion by prohibiting respondent’s counsel from fully cross examining petitioner,” which, along with other plain errors, “affected respondent’s substantial rights, specifically his liberty interests.” Id. at ___.