5.25Contempt of Court—Extreme Risk Protection Orders (ERPOs)
A.Statutory Authority to Hold ERPO Violators in Contempt
MCR 3.721(A) provides that an ERPO is enforceable under the following:
•MCL 691.1810(4)-MCL 691.1810(5) (failure to comply with MCL 691.1810(1)(a) or MCL 691.1810(1)(b) or failure to appear at compliance hearing; court finds probable cause exists to believe the restrained individual has a firearm or concealed pistol license in their possession or control)
•MCL 691.1815(4) (failure to comply with an ERPO)
•MCL 691.1819 (court may enforce ERPO by charging restrained individual with contempt of court under MCL 600.1701-MCL 600.1745).
Additionally, MCL 691.1809(1)(i) provides that if the court determines under MCL 691.1807 that an ERPO should be issued, the court must include a statement in the ERPO that violation of the order will subject the restrained individual to the contempt powers of the court.
If a respondent violates an ERPO, the prosecuting attorney for the county in which the order was issued or a law enforcement officer may file a motion, supported by appropriate affidavit, to have the respondent found in contempt. MCR 3.721(B)(1). There is no fee for such a motion. Id.
If the motion and affidavit establish probable cause for a finding of contempt, the court must either:
(1) order the respondent to appear at a specified time to answer the contempt charge; or
(2) issue a bench warrant for the arrest of respondent. MCR 3.721(B)(1).
If issuing an order to show cause, the hearing must be held within five days. MCR 3.721(B)(2). The prosecuting attorney or law enforcement officer must serve the motion to show cause and the order on the respondent and the petitioner as provided in MCR 2.107. MCR 3.721(B)(2).
If the violation alleges that the respondent has a firearm or concealed pistol license in their possession or control, a law enforcement officer or prosecuting attorney may also file an affidavit requesting that the court issue a search warrant to search the location(s) where the firearm(s) or concealed pistol license is believed to be and to seize any firearm(s) or concealed pistol license discovered during the search. MCR 3.721(C). The law enforcement officer’s affidavit may include affirmative allegations contained in the complaint, and if the affidavit establishes probable cause to believe the location(s) to be searched are places where the firearm(s) or concealed pistol license is believed to be, the court must issue the search warrant. Id.
D.Arraignment and Advice to Respondent
At the respondent’s first appearance before the court for arraignment on contempt of court, the court must do the following:
•Advise respondent of the alleged violation;
•Advise respondent of the right to contest the charge at a contempt hearing;
•Advise respondent that they are entitled to a lawyer’s assistance at the hearing, and if the court determines it might sentence the respondent to jail, that the court1 will appoint a lawyer at public expense if the individual wants one and is financially unable to retain one. MCR 3.721(D).
•Appoint a lawyer2 if requested and appropriate.
•Set a reasonable bond pending a hearing of the alleged violation; and
•Take a guilty plea as provided in MCR 3.721(E) or schedule a hearing as provided in MCR 3.721(F). MCR 3.721(D).
The respondent may plead guilty to the ERPO violation. MCR 3.721(E). Before accepting a guilty plea, the court, speaking directly to respondent and receiving the respondent’s response, must do the following:
•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 out in MCR 3.721(D)(1)(c);
•Advise the respondent of the maximum possible jail sentence for the violation;
•Advise the respondent that if they plead guilty to violating the ERPO, the court will automatically extend the duration of the ERPO for one year after the expiration of the preceding order;
•Ascertain that the plea is understandingly, voluntarily, and knowingly made; and
•Establish factual support for a finding that the respondent is guilty of the alleged violation. MCR 3.721(E).
F.Scheduling or Postponing Hearing
Following the respondent’s appearance or arraignment, the court must do the following:
•Set a date for the hearing at the earliest practicable time;
•Notify the prosecuting attorney of the contempt proceeding; and
•Notify the petitioner and the petitioner’s attorney (if any) and the law enforcement officer that filed the motion (if applicable) of the contempt proceeding and direct the party to appear at the hearing and give evidence on the charge of contempt. MCR 3.721(F).
The hearing of a respondent being held in custody for an alleged violation of an ERPO 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. MCR 3.721(F)(1)(a). The court must set a reasonable bond pending the hearing unless the court determines that release will not reasonably ensure the safety of the respondent or any other individual(s). Id.
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 respondent and other individuals, including continued compliance with the ERPO. MCR 3.721(F)(1)(b). The release order must comply with MCL 765.6b. MCR 3.721(F)(1)(b).
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. MCR 3.721(F)(1)(c).
If the court holds a contempt proceeding, the prosecuting attorney must prosecute the proceeding. MCR 3.721(G).
At a violation hearing, there is no right to a jury trial. MCR 3.721(H)(1).
The respondent has the right to be present at the hearing, to present evidence, and to examine and cross-examine witnesses. MCR 3.721(H)(2).
The rules of evidence apply to both criminal and civil contempt proceedings. MCR 3.721(H)(3).
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 3.721(H)(3).
At the conclusion of the hearing, the court must find the facts specifically, state separately its conclusion of law, and direct entry of the appropriate judgment. MCR 3.721(H)(4). The court must state its findings and conclusion on the record or in a written opinion made a part of the record. Id.
If the respondent is found in contempt, the court may impose sanctions as provided by MCL 600.1701 et seq. MCR 3.721(H)(5).
1 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 an ERPO. MCR 3.721(D)(1)(c).
2 Or refer the matter to the appointing authority. MCR 3.721(D)(2).