H.B. 5564 (S-3) & 5567 (S-1): FIRST ANALYSIS - PERSONAL PROTECTION ORDERS
House Bill 5564 (Substitute S-3 as reported)
House Bill 5567 (Substitute S-1 as reported)
Sponsor: Representative Judith Scranton (House Bill 5564)
Representative Kwame Kilpatrick (House Bill 5567)
House Committee: Judiciary
Senate Committee: Judiciary
Date Completed: 9-29-98
RATIONALE
Under the Revised Judicature Act, an individual may petition the circuit court for a personal protection order (PPO) that enjoins or restrains another person from engaging in certain conduct, particularly domestic violence or stalking behavior. Some people have raised concerns about whether PPOs can be sought by or issued against juveniles, how juveniles should be treated when they violate a PPO, whether PPOs are appropriate in parent-child situations, and which court should issue PPOs. Since the PPO provisions were enacted in 1992 and 1994, the family division of circuit court (family court) was created to handle such matters as divorce, custody, child abuse, and juvenile delinquency. It has been suggested that the family court also should be responsible for issuing PPOs. It also has been suggested that the law should clearly spell out the court's authority in regard to juveniles subject to PPOs.
CONTENT
House Bill 5564 (S-3) would amend the juvenile code to provide for the family court's jurisdiction in a proceeding for a personal protection order against a person under 18 years old; and to provide for the apprehension, detention, and disposition of a juvenile who violated a PPO. House Bill 5567(S-1) would amend the Code of Criminal Procedure to allow the warrantless arrest of a 17-year-old who violated a PPO; provide that he or she would be subject to criminal contempt or to the dispositional alternatives listed in the juvenile code; and provide for the family court's jurisdiction to conduct contempt proceedings based upon a juvenile's violation of a PPO.
The bills would take effect January 1, 1999. The bills are tie-barred to each other and to Senate Bills 866 and 874, which would amend the Revised Judicature Act (RJA) to provide that a person could petition the family court for a PPO, and to prohibit a court from issuing a PPO if the respondent were the minor child of the petitioner, or if the petitioner were the minor child of the respondent. (The Senate bills also are tie-barred to the House bills.)
House Bill 5564 (S-3)
The bill provides that the family court would have jurisdiction over a proceeding under Section 2950 or 2950a of the RJA in which a minor under 18 years of age was the respondent (the person to be enjoined or restrained). (Sections 2950 and 2950a apply to domestic violence PPOs and stalking PPOs, respectively.) Venue for an initial action under either section would be proper in the county in which either the petitioner or the respondent resided. If the respondent did not live in this State, venue for the initial action would be proper in the petitioner's county of residence. ("Venue" refers to the county where a case may be brought.)
If the family court exercised jurisdiction over a child in a PPO proceeding, the court's jurisdiction would continue until the order expired, but action regarding the PPO after the respondent's 18th birthday would not be subject to the juvenile code.
Currently, the court may issue an order authorizing a peace officer or other person designated by the court to apprehend a juvenile under certain circumstances. Under the bill, the court also could issue an order authorizing the apprehension of a juvenile who was alleged to have violated a PPO. In addition, the juvenile code provides that any local police officer, sheriff or deputy sheriff, State Police officer, county agent, or probation officer may, without a court order, immediately take into custody any child who is found violating any law or ordinance. The bill would include in this provision a juvenile who was violating or had violated a PPO issued by the family court.
Under the code, if a complaint concerning a child has been made or if a petition has been filed, the family court may order the child to be detained in a facility pending a hearing, or may release the child into the custody of a parent, guardian, or custodian. The bill specifies that this would include a supplemental petition alleging a violation of a PPO. The code also provides that custody, pending a hearing, is limited to certain children. The bill would include children who had allegedly violated a PPO and for whom it appeared there was a substantial likelihood of retaliation or continued violation.
Currently, certain children who are taken into custody may not be detained in a secure facility designed to restrict the movements and activities of juvenile offenders, unless the court finds that a child willfully violated a court order and there is not a less restrictive alternative more appropriate to the child's needs. The bill specifies that this provision would not apply to a child who was at least 17 years old and who was under the family court's jurisdiction pursuant to a supplemental petition on a PPO.
Under the code, a child taken into custody may not be detained in a cell or other secure area of any secure facility designed to incarcerate adults unless the child is under the family court's jurisdiction for an offense that would be a felony if committed by an adult. The bill also would make an exception for a child who was at least 17 and was under the court's jurisdiction pursuant to a supplemental petition on a PPO.
The code provides that in a hearing other than a criminal trial, any person interested in the hearing may demand a jury of six individuals, or the court on its own motion may order a jury of six to try the case. The bill specifies that in a PPO proceeding, a jury could not demanded on a supplemental petition alleging a violation of the PPO. The bill would require the court to advise the child that he or she had a right to an attorney at every stage of the proceeding.
The code permits the family court to enter certain orders of disposition that are appropriate for the juvenile and society. These include warning the juvenile and dismissing the petition; placing the juvenile on probation; and committing the juvenile to a private or public institution. A juvenile who violates the law or is a runaway or a truant also may be placed in foster care subject to the court's jurisdiction. Under the bill, a juvenile who was the subject of a supplemental petition on a PPO could be placed in foster care, as well. If a juvenile were at least 17 and in violation of a PPO, the court could commit him or her to a county jail within the adult prisoner population. The bill also states that in a family court proceeding for a PPO against a juvenile, this section of the code would apply only to a disposition for a violation of a PPO and subsequent proceedings.
House Bill 5567 (S-1)
The Code of Criminal Procedure permits a peace officer, without a warrant, to arrest an individual and take him or her into custody when the officer has reasonable cause to believe that a PPO has been issued, the individual named in the order is in violation of it, and the PPO states in its face that a violation of its terms subjects the individual to immediate arrest and to criminal contempt of court (and, if guilty of criminal contempt, imprisonment for up to 93 days and a fine of up to $500). Under the bill, the PPO would have to state that a violation would subject the individual to immediate arrest and either of the following:
-- If the individual restrained or enjoined were 17 years of age or older, to criminal contempt of court (subject to the current penalty).
-- If the individual restrained or enjoined were 17 or older, to the dispositional alternatives listed in the juvenile code.
The bill provides that the family court would have jurisdiction to conduct criminal contempt proceedings based upon a violation of a PPO issued under the juvenile code by the family division of circuit court in any county of this State. The family court that conducted the preliminary hearing would have to notify the court that issued the PPO that the issuing court could request the respondent to be returned to that court for violating the order. If the court that issued the PPO requested that the respondent be returned to stand trial, the requesting court would have to bear the transportation cost.
Under the code, an individual is in violation of a PPO if he or she commits one or more of certain acts that the order specifically restrains or enjoins the individual from committing. These acts include interfering with the petitioner at his or her place of employment or engaging in conduct that impairs the petitioner's employment relationship or environment. The bill also would refer to the petitioner's place of education, or the petitioner's educational relationship or environment.
764.15b & 764.15c (H.B. 5567)
ARGUMENTS
(Please note: The arguments contained in this analysis originate from sources outside the Senate Fiscal Agency. The Senate Fiscal Agency neither supports nor opposes legislation.)
Supporting Argument
This package of legislation should clear up any confusion that may exist in regard to whether juveniles are subject to personal protection orders, and how the courts should handle juveniles who violate PPOs. Some of the present uncertainty stems from the criminal aspect of PPO violations; under current law, a PPO violator can be punished for criminal contempt of court, but juvenile offenders generally are not subject to criminal penalties.
While the tie-barred Senate bills would provide in the RJA that an individual could petition the family court for a PPO, the House bills would make it clear in the juvenile code that the family court would have jurisdiction in PPO proceedings involving a person under 18. The House bills also would make it clear that a juvenile under 17 would be subject to the dispositional options prescribed in the juvenile code, while a 17-year-old who violated a PPO could be confined in a jail or other secure facility designed to incarcerate adults. A 17-year-old PPO violator also would be subject to the court's criminal contempt power and could be imprisoned or fined, or could be treated as a juvenile offender.
Supporting Argument
Together with the tie-barred Senate bills, this legislation would clarify the family court's jurisdiction in PPO proceedings. Created by Public Act 388 of 1996, the family court was assigned many matters that formerly were handled by the circuit court or the juvenile division of the probate court. The family court's exclusive jurisdiction includes divorce, child custody, paternity, child abuse and neglect, and juvenile delinquency. Public Act 388 also gave the family court exclusive jurisdiction over domestic violence and stalking cases. The Senate bills would reflect this jurisdiction in the Revised Judicature Act's PPO provisions, and the House bills would make consistent changes in the juvenile code. Considering that PPO actions often involve individuals who have, or used to have, some type of domestic relationship, the family court is the appropriate forum for these matters.
- Legislative Analyst: S. Lowe
FISCAL IMPACT
House Bill 5564 (S-3)
The revised enforcement procedures for personal protection orders regarding juveniles would result in additional costs to local units of government. Costs are not determinable.
House Bill 5567 (S-1)
The bill would have no fiscal impact on State or local government.
- Fiscal Analyst: B. Bowerman
H9798\S5564A
This analysis was prepared by nonpartisan Senate staff for use by the Senate in its deliberations and does not constitute an official statement of legislative intent.