HF 1438

1st Engrossment - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to abuse; conforming domestic abuse 
  1.3             definitions; including persons with certain 
  1.4             significant relationships; allowing certain minors to 
  1.5             petition on their own behalf for orders for 
  1.6             protection; modifying petition requirements; providing 
  1.7             for subsequent petitions; modifying requirements for 
  1.8             alternate service; extending time period for certain 
  1.9             domestic abuse arrests; providing for licensure 
  1.10            revocation for peace officers convicted of assault; 
  1.11            appropriating money; amending Minnesota Statutes 1994, 
  1.12            sections 518B.01, subdivisions 2, 4, 8, 14, and by 
  1.13            adding a subdivision; 611A.31, subdivision 2; 629.341, 
  1.14            subdivision 1; and 629.72, subdivisions 1, 2, and 6. 
  1.15  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.16     Section 1.  Minnesota Statutes 1994, section 518B.01, 
  1.17  subdivision 2, is amended to read: 
  1.18     Subd. 2.  [DEFINITIONS.] As used in this section, the 
  1.19  following terms shall have the meanings given them:  
  1.20     (a) "Domestic abuse" means:  (i) 
  1.21     (1) physical harm, bodily injury, assault, or the 
  1.22  infliction of fear of imminent physical harm, bodily injury or 
  1.23  assault, without regard to intent, between family or household 
  1.24  members; or (ii) 
  1.25     (2) terroristic threats, within the meaning of section 
  1.26  609.713, subdivision 1, or criminal sexual conduct, within the 
  1.27  meaning of section 609.342, 609.343, 609.344, or 609.345, 
  1.28  committed against a family or household member by a family or 
  1.29  household member.  
  1.30     (b) "Family or household members" means: 
  2.1      (1) spouses, and former spouses,; 
  2.2      (2) parents and children,; 
  2.3      (3) persons related by blood, and; 
  2.4      (4) persons who are presently residing together or who have 
  2.5   resided together in the past, and; 
  2.6      (5) persons who have a child in common regardless of 
  2.7   whether they have been married or have lived together at any 
  2.8   time.  "Family or household member" also includes; 
  2.9      (6) a man and woman if the woman is pregnant and the man is 
  2.10  alleged to be the father, regardless of whether they have been 
  2.11  married or have lived together at any time; and 
  2.12     (7) persons who have had a significant romantic or sexual 
  2.13  relationship. 
  2.14     Issuance of an order for protection on this the ground in 
  2.15  clause (6) does not affect a determination of paternity under 
  2.16  sections 257.51 to 257.74.  In determining whether persons have 
  2.17  had a significant romantic or sexual relationship under clause 
  2.18  (7), the court shall consider the length of time of the 
  2.19  relationship; type of relationship; frequency of interaction 
  2.20  between the parties; and, if the relationship has terminated, 
  2.21  length of time since the termination. 
  2.22     Sec. 2.  Minnesota Statutes 1994, section 518B.01, 
  2.23  subdivision 4, is amended to read: 
  2.24     Subd. 4.  [ORDER FOR PROTECTION.] There shall exist an 
  2.25  action known as a petition for an order for protection in cases 
  2.26  of domestic abuse.  
  2.27     (a) A petition for relief under this section may be made by 
  2.28  any family or household member personally or on behalf of minor 
  2.29  family or household members.  In addition, a minor age 15 or 
  2.30  older may make a petition on the minor's own behalf. 
  2.31     (b) A petition for relief shall allege the existence of 
  2.32  domestic abuse, and shall be accompanied by an affidavit made 
  2.33  under oath stating the specific facts and circumstances from 
  2.34  which relief is sought.  
  2.35     (c) A petition for relief must state whether the petitioner 
  2.36  has ever had an order for protection in effect against the 
  3.1   respondent. 
  3.2      (d) A petition for relief must state whether there is an 
  3.3   existing order for protection in effect under this chapter 
  3.4   governing both the parties and whether there is a pending 
  3.5   lawsuit, complaint, petition or other action between the parties 
  3.6   under chapter 257, 518, 518A, 518B, or 518C.  The court 
  3.7   administrator shall verify the terms of any existing order 
  3.8   governing the parties.  The court may not delay granting relief 
  3.9   because of the existence of a pending action between the parties 
  3.10  or the necessity of verifying the terms of an existing order.  A 
  3.11  subsequent order in a separate action under this chapter may 
  3.12  modify only the provision of an existing order that grants 
  3.13  relief authorized under subdivision 6, paragraph (a), clause 
  3.14  (1).  A petition for relief may be granted, regardless of 
  3.15  whether there is a pending action between the parties.  
  3.16     (d) (e) The court shall provide simplified forms and 
  3.17  clerical assistance to help with the writing and filing of a 
  3.18  petition under this section.  
  3.19     (e) (f) The court shall advise a petitioner under paragraph 
  3.20  (d) (e) of the right to file a motion and affidavit and to sue 
  3.21  in forma pauperis pursuant to section 563.01 and shall assist 
  3.22  with the writing and filing of the motion and affidavit.  
  3.23     (f) (g) The court shall advise a petitioner under paragraph 
  3.24  (d) (e) of the right to serve the respondent by published notice 
  3.25  under subdivision 5, paragraph (b), if the respondent is 
  3.26  avoiding personal service by concealment or otherwise, and shall 
  3.27  assist with the writing and filing of the affidavit. 
  3.28     (g) (h) The court shall advise the petitioner of the right 
  3.29  to seek restitution under the petition for relief. 
  3.30     Sec. 3.  Minnesota Statutes 1994, section 518B.01, is 
  3.31  amended by adding a subdivision to read: 
  3.32     Subd. 6a.  [SUBSEQUENT ORDERS AND EXTENSIONS.] Upon 
  3.33  application, notice to all parties, and hearing, the court may 
  3.34  extend the relief granted in an existing order for protection 
  3.35  or, if a petitioner's order for protection is no longer in 
  3.36  effect when an application for subsequent relief is made, grant 
  4.1   a new order.  The court may extend the terms of an existing 
  4.2   order or, if an order is no longer in effect, grant a new order 
  4.3   upon a showing that: 
  4.4      (1) the respondent has violated a prior or existing order 
  4.5   for protection; 
  4.6      (2) the petitioner is reasonably in fear of physical harm 
  4.7   from the respondent; or 
  4.8      (3) the respondent has engaged in acts of harassment or 
  4.9   stalking within the meaning of section 609.749, subdivision 2. 
  4.10     A petitioner does not need to show that physical harm is 
  4.11  imminent to obtain an extension or a subsequent order under this 
  4.12  subdivision. 
  4.13     Sec. 4.  Minnesota Statutes 1994, section 518B.01, 
  4.14  subdivision 8, is amended to read: 
  4.15     Subd. 8.  [SERVICE; ALTERNATE SERVICE; PUBLICATION.] (a) 
  4.16  The petition and any order issued under this section shall be 
  4.17  served on the respondent personally. 
  4.18     (b) When service is made out of this state and in the 
  4.19  United States, it may be proved by the affidavit of the person 
  4.20  making the service.  When service is made outside the United 
  4.21  States, it may be proved by the affidavit of the person making 
  4.22  the service, taken before and certified by any United States 
  4.23  minister, charge d'affaires, commissioner, consul, or commercial 
  4.24  agent, or other consular or diplomatic officer of the United 
  4.25  States appointed to reside in the other country, including all 
  4.26  deputies or other representatives of the officer authorized to 
  4.27  perform their duties; or before an office authorized to 
  4.28  administer an oath with the certificate of an officer of a court 
  4.29  of record of the country in which the affidavit is taken as to 
  4.30  the identity and authority of the officer taking the affidavit.  
  4.31     (c) If personal service cannot be made, the court may order 
  4.32  service of the petition and any order issued under this section 
  4.33  by alternate means, or by publication, which publication must be 
  4.34  made as in other actions.  The application for alternate service 
  4.35  must include the last known location of the respondent; the 
  4.36  petitioner's most recent contacts with the respondent; the last 
  5.1   known location of the respondent's employment; the names and 
  5.2   locations of the respondent's parents, siblings, children, and 
  5.3   other close relatives; the names and locations of other persons 
  5.4   who are likely to know the respondent's whereabouts; and a 
  5.5   description of efforts to locate those persons. 
  5.6      The court shall consider the length of time the 
  5.7   respondent's location has been unknown, the likelihood that the 
  5.8   respondent's location will become known, the nature of the 
  5.9   relief sought, and the nature of efforts made to locate the 
  5.10  respondent.  The court shall order service by first class mail, 
  5.11  forwarding address requested, to any addresses where there is a 
  5.12  reasonable possibility that mail or information will be 
  5.13  forwarded or communicated to the respondent.  
  5.14     The court may also order publication, within or without the 
  5.15  state, but only if it might reasonably succeed in notifying the 
  5.16  respondent of the proceeding.  Also, the court may require the 
  5.17  petitioner to make efforts to locate the respondent by telephone 
  5.18  calls to appropriate persons.  Service shall be deemed complete 
  5.19  21 14 days after mailing or 21 14 days after court-ordered 
  5.20  publication. 
  5.21     Sec. 5.  Minnesota Statutes 1994, section 518B.01, 
  5.22  subdivision 14, is amended to read: 
  5.23     Subd. 14.  [VIOLATION OF AN ORDER FOR PROTECTION.] (a) 
  5.24  Whenever an order for protection is granted pursuant to this 
  5.25  section, and the respondent or person to be restrained knows of 
  5.26  the order, violation of the order for protection is a 
  5.27  misdemeanor.  Upon conviction, the defendant must be sentenced 
  5.28  to a minimum of three days imprisonment and must be ordered to 
  5.29  participate in counseling or other appropriate programs selected 
  5.30  by the court.  If the court stays imposition or execution of the 
  5.31  jail sentence and the defendant refuses or fails to comply with 
  5.32  the court's treatment order, the court must impose and execute 
  5.33  the stayed jail sentence.  A person is guilty of a gross 
  5.34  misdemeanor who violates this paragraph during the time period 
  5.35  between a previous conviction under this paragraph; sections 
  5.36  609.221 to 609.224; 609.713, subdivision 1 or 3; 609.748, 
  6.1   subdivision 6; 609.749; or a similar law of another state and 
  6.2   the end of the five years following discharge from sentence for 
  6.3   that conviction.  Upon conviction, the defendant must be 
  6.4   sentenced to a minimum of ten days imprisonment and must be 
  6.5   ordered to participate in counseling or other appropriate 
  6.6   programs selected by the court.  Notwithstanding section 
  6.7   609.135, the court must impose and execute the minimum sentence 
  6.8   provided in this paragraph for gross misdemeanor convictions. 
  6.9      (b) A peace officer shall arrest without a warrant and take 
  6.10  into custody a person whom the peace officer has probable cause 
  6.11  to believe has violated an order granted pursuant to this 
  6.12  section restraining the person or excluding the person from the 
  6.13  residence or the petitioner's place of employment, even if the 
  6.14  violation of the order did not take place in the presence of the 
  6.15  peace officer, if the existence of the order can be verified by 
  6.16  the officer.  The person shall be held in custody for at least 
  6.17  36 hours, excluding the day of arrest, Sundays, and holidays, 
  6.18  unless the person is released earlier by a judge or judicial 
  6.19  officer.  A peace officer acting in good faith and exercising 
  6.20  due care in making an arrest pursuant to this paragraph is 
  6.21  immune from civil liability that might result from the officer's 
  6.22  actions. 
  6.23     (c) A violation of an order for protection shall also 
  6.24  constitute contempt of court and be subject to the penalties 
  6.25  therefor.  
  6.26     (d) If the court finds that the respondent has violated an 
  6.27  order for protection and that there is reason to believe that 
  6.28  the respondent will commit a further violation of the provisions 
  6.29  of the order restraining the respondent from committing acts of 
  6.30  domestic abuse or excluding the respondent from the petitioner's 
  6.31  residence, the court may require the respondent to acknowledge 
  6.32  an obligation to comply with the order on the record.  The court 
  6.33  may require a bond sufficient to deter the respondent from 
  6.34  committing further violations of the order for protection, 
  6.35  considering the financial resources of the respondent, and not 
  6.36  to exceed $10,000.  If the respondent refuses to comply with an 
  7.1   order to acknowledge the obligation or post a bond under this 
  7.2   paragraph, the court shall commit the respondent to the county 
  7.3   jail during the term of the order for protection or until the 
  7.4   respondent complies with the order under this paragraph.  The 
  7.5   warrant must state the cause of commitment, with the sum and 
  7.6   time for which any bond is required.  If an order is issued 
  7.7   under this paragraph, the court may order the costs of the 
  7.8   contempt action, or any part of them, to be paid by the 
  7.9   respondent.  An order under this paragraph is appealable.  
  7.10     (e) Upon the filing of an affidavit by the petitioner, any 
  7.11  peace officer, or an interested party designated by the court, 
  7.12  alleging that the respondent has violated any order for 
  7.13  protection granted pursuant to this section, the court may issue 
  7.14  an order to the respondent, requiring the respondent to appear 
  7.15  and show cause within 14 days why the respondent should not be 
  7.16  found in contempt of court and punished therefor.  The hearing 
  7.17  may be held by the court in any county in which the petitioner 
  7.18  or respondent temporarily or permanently resides at the time of 
  7.19  the alleged violation.  The court also shall refer the violation 
  7.20  of the order for protection to the appropriate prosecuting 
  7.21  authority for possible prosecution under paragraph (a). 
  7.22     (f) If it is alleged that the respondent has violated an 
  7.23  order for protection issued under subdivision 6 and the court 
  7.24  finds that the order has expired between the time of the alleged 
  7.25  violation and the court's hearing on the violation, the court 
  7.26  may grant a new order for protection under subdivision 6 based 
  7.27  solely on the respondent's alleged violation of the prior order, 
  7.28  to be effective until the hearing on the alleged violation of 
  7.29  the prior order.  If the court finds that the respondent has 
  7.30  violated the prior order, the relief granted in the new order 
  7.31  for protection shall be extended for a fixed period, not to 
  7.32  exceed one year, except when the court determines a longer fixed 
  7.33  period is appropriate. 
  7.34     (g) The admittance into petitioner's dwelling of an abusing 
  7.35  party excluded from the dwelling under an order for protection 
  7.36  is not a violation by the petitioner of the order for protection.
  8.1      A peace officer is not liable under section 609.43, clause 
  8.2   (1), for a failure to perform a duty required by paragraph (b). 
  8.3      Sec. 6.  Minnesota Statutes 1994, section 611A.31, 
  8.4   subdivision 2, is amended to read: 
  8.5      Subd. 2.  "Battered woman" means a woman who is being or 
  8.6   has been victimized by domestic abuse as defined in section 
  8.7   518B.01, subdivision 2, except that "family or household members"
  8.8   includes persons with whom the woman has had a continuing 
  8.9   relationship. 
  8.10     Sec. 7.  Minnesota Statutes 1994, section 629.341, 
  8.11  subdivision 1, is amended to read: 
  8.12     Subdivision 1.  [ARREST.] Notwithstanding section 629.34 or 
  8.13  any other law or rule, a peace officer may arrest a person 
  8.14  anywhere without a warrant, including at the person's residence, 
  8.15  if the peace officer has probable cause to believe that within 
  8.16  the preceding 12 hours the person within the preceding four 
  8.17  hours has assaulted, threatened with a dangerous weapon, or 
  8.18  placed in fear of immediate bodily harm the person's spouse, 
  8.19  former spouse, other person with whom the person resides or has 
  8.20  formerly resided, or other person with whom the person has a 
  8.21  child or an unborn child in common, regardless of whether they 
  8.22  have been married or have lived together at any time has 
  8.23  committed domestic abuse, as defined in section 518B.01, 
  8.24  subdivision 2.  The arrest may be made even though the assault 
  8.25  did not take place in the presence of the peace officer. 
  8.26     Sec. 8.  Minnesota Statutes 1994, section 629.72, 
  8.27  subdivision 1, is amended to read: 
  8.28     Subdivision 1.  [DEFINITION; ALLOWING DETENTION IN LIEU OF 
  8.29  CITATION; RELEASE.] (a) For purposes of this section, "domestic 
  8.30  abuse" has the meaning given in section 518B.01, subdivision 2. 
  8.31     (b) Notwithstanding any other law or rule, an arresting 
  8.32  officer may not issue a citation in lieu of arrest and detention 
  8.33  to an individual charged with harassment or charged with 
  8.34  assaulting the individual's spouse or other individual with whom 
  8.35  the charged person resides domestic abuse. 
  8.36     (c) Notwithstanding any other law or rule, an individual 
  9.1   who is arrested on a charge of harassing any person or 
  9.2   of assaulting the individual's spouse or other person with whom 
  9.3   the individual resides domestic abuse must be brought to the 
  9.4   police station or county jail.  The officer in charge of the 
  9.5   police station or the county sheriff in charge of the jail shall 
  9.6   issue a citation in lieu of continued detention unless it 
  9.7   reasonably appears to the officer or sheriff that detention is 
  9.8   necessary to prevent bodily harm to the arrested person or 
  9.9   another, or there is a substantial likelihood the arrested 
  9.10  person will fail to respond to a citation. 
  9.11     (d) If the arrested person is not issued a citation by the 
  9.12  officer in charge of the police station or the county sheriff, 
  9.13  the arrested person must be brought before the nearest available 
  9.14  judge of the district court in the county in which the alleged 
  9.15  harassment or assault domestic abuse took place without 
  9.16  unnecessary delay as provided by court rule. 
  9.17     Sec. 9.  Minnesota Statutes 1994, section 629.72, 
  9.18  subdivision 2, is amended to read: 
  9.19     Subd. 2.  [JUDICIAL REVIEW; RELEASE; BAIL.] (a) The judge 
  9.20  before whom the arrested person is brought shall review the 
  9.21  facts surrounding the arrest and detention.  The arrested person 
  9.22  must be ordered released pending trial or hearing on the 
  9.23  person's personal recognizance or on an order to appear or upon 
  9.24  the execution of an unsecured bond in a specified amount unless 
  9.25  the judge determines that release (1) will be inimical to public 
  9.26  safety, (2) will create a threat of bodily harm to the arrested 
  9.27  person, the victim of the alleged harassment or assault domestic 
  9.28  abuse, or another, or (3) will not reasonably assure the 
  9.29  appearance of the arrested person at subsequent proceedings.  
  9.30     (b) If the judge determines release is not advisable, the 
  9.31  judge may impose any conditions of release that will reasonably 
  9.32  assure the appearance of the person for subsequent proceedings, 
  9.33  or will protect the victim of the alleged harassment or assault 
  9.34  domestic abuse, or may fix the amount of money bail without 
  9.35  other conditions upon which the arrested person may obtain 
  9.36  release.  If conditions of release are imposed, the judge shall 
 10.1   issue a written order for conditional release.  The court 
 10.2   administrator shall immediately distribute a copy of the order 
 10.3   for conditional release to the agency having custody of the 
 10.4   arrested person and shall provide the agency having custody of 
 10.5   the arrested person with any available information on the 
 10.6   location of the victim in a manner that protects the victim's 
 10.7   safety.  Either the court or its designee or the agency having 
 10.8   custody of the arrested person shall serve upon the defendant a 
 10.9   copy of the order.  Failure to serve the arrested person with a 
 10.10  copy of the order for conditional release does not invalidate 
 10.11  the conditions of release. 
 10.12     (c) If the judge imposes as a condition of release a 
 10.13  requirement that the person have no contact with the victim of 
 10.14  the alleged harassment or assault domestic abuse, the judge may 
 10.15  also, on its own motion or that of the prosecutor or on request 
 10.16  of the victim, issue an ex parte temporary restraining order 
 10.17  under section 609.748, subdivision 4, or an ex parte temporary 
 10.18  order for protection under section 518B.01, subdivision 7.  
 10.19  Notwithstanding section 518B.01, subdivision 7, paragraph (b), 
 10.20  or 609.748, subdivision 4, paragraph (c), the temporary order is 
 10.21  effective until the defendant is convicted or acquitted, or the 
 10.22  charge is dismissed, provided that upon request the defendant is 
 10.23  entitled to a full hearing on the restraining order under 
 10.24  section 609.748, subdivision 5, or on the order for protection 
 10.25  under section 518B.01.  The hearing must be held within seven 
 10.26  days of the defendant's request. 
 10.27     Sec. 10.  Minnesota Statutes 1994, section 629.72, 
 10.28  subdivision 6, is amended to read: 
 10.29     Subd. 6.  [NOTICE TO VICTIM REGARDING RELEASE OF ARRESTED 
 10.30  PERSON.] (a) Immediately after issuance of a citation in lieu of 
 10.31  continued detention under subdivision 1, or the entry of an 
 10.32  order for release under subdivision 2, but before the arrested 
 10.33  person is released, the agency having custody of the arrested 
 10.34  person or its designee must make a reasonable and good faith 
 10.35  effort to inform orally the alleged victim of: 
 10.36     (1) the conditions of release, if any; 
 11.1      (2) the time of release; 
 11.2      (3) the time, date, and place of the next scheduled court 
 11.3   appearance of the arrested person and the victim's right to be 
 11.4   present at the court appearance; and 
 11.5      (4) if the arrested person is charged with domestic assault 
 11.6   abuse, the location and telephone number of the area battered 
 11.7   women's shelter as designated by the department of corrections. 
 11.8      (b) As soon as practicable after an order for conditional 
 11.9   release is entered, the agency having custody of the arrested 
 11.10  person or its designee must personally deliver or mail to the 
 11.11  alleged victim a copy of the written order and written notice of 
 11.12  the information in clauses (2) and (3). 
 11.13     Sec. 11.  [APPROPRIATION.] 
 11.14     $....... is appropriated from the general fund to the 
 11.15  commissioner of corrections for the purpose of funding battered 
 11.16  women's services under Minnesota Statutes, section 611A.32.  The 
 11.17  services to be funded include: 
 11.18     (1) Asian battered women's shelter; 
 11.19     (2) African-American battered women's shelter; 
 11.20     (3) child advocacy services in battered women programs; and 
 11.21     (4) community-based domestic abuse advocacy and support 
 11.22  services programs in judicial districts not currently receiving 
 11.23  grants from the commissioner.