SF 1617

as introduced - 89th Legislature (2015 - 2016) Posted on 03/12/2015 09:06am

A bill for an act
relating to public safety; amending harassment restraining order provisions on
definitions, jurisdiction, notice, service, and relief; amending Minnesota Statutes
2014, section 609.748.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2014, section 609.748, is amended to read:

609.748 HARASSMENT; RESTRAINING ORDER.

Subdivision 1.

Definition.

For the purposes of this section, the following terms have
the meanings given them in this subdivision.

(a) "Harassment" includes:

(1) a single incident of physical or sexual assault or repeated incidents of intrusive or
unwanted acts, words, or gestures that have a substantial adverse effect or are intended to
have a substantial adverse effect on the safety, security, or privacy of another, regardless
of the relationship between the actor and the intended target;

new text begin (2) a single incident of entry into a building without consent that would constitute a
violation of section 609.582 or 609.605;
new text end

deleted text begin (2) deleted text end new text begin (3) new text end targeted residential picketing; and

deleted text begin (3) deleted text end new text begin (4) new text end a pattern of attending public events after being notified that the actor's
presence at the event is harassing to another.

(b) "Respondent" includes any adults or juveniles alleged to have engaged in
harassment or organizations alleged to have sponsored or promoted harassment.

(c) "Targeted residential picketing" includes the following acts when committed on
more than one occasion:

(1) marching, standing, or patrolling by one or more persons directed solely at a
particular residential building in a manner that adversely affects the safety, security, or
privacy of an occupant of the building; or

(2) marching, standing, or patrolling by one or more persons which prevents an
occupant of a residential building from gaining access to or exiting from the property on
which the residential building is located.

new text begin (d) "Guardian" has the meaning given in section 524.1-201, clause (26).
new text end

Subd. 2.

Restraining order; court jurisdiction.

new text begin (a) new text end A person who is a victim of
harassment may seek a restraining order from the district court in the manner provided in
this section. The parent, guardian, or stepparent of a minor who is a victim of harassment
may seek a restraining order from the district court on behalf of the minor. new text begin If the court
finds it is in the best interests of a minor, a reputable adult may petition on behalf of the
minor. A minor age 16 or 17 may petition on the minor's own behalf against a spouse or
former spouse, or a person with whom the minor has a child in common, if the court
determines that the minor has sufficient maturity and judgment and that it is in the best
interests of the minor.
new text end

new text begin (b) new text end An application for relief under this section may be filed in the county of residence
of either party or in the county in which the alleged harassment occurred. There are no
residency requirements that apply to a petition for a harassment restraining order.

Subd. 3.

Contents of petition; hearing; notice.

(a) A petition for relief must
allege facts sufficient to show the following:

(1) the name of the alleged harassment victim;

(2) the name of the respondent; and

(3) that the respondent has engaged in harassment.

A petition for relief must state whether the petitioner has had a previous restraining order
in effect against the respondent. The petition shall be accompanied by an affidavit made
under oath stating the specific facts and circumstances from which relief is sought. The
court shall provide simplified forms and clerical assistance to help with the writing and
filing of a petition under this section and shall advise the petitioner of the right to sue in
forma pauperis under section 563.01. The court shall advise the petitioner of the right to
request a hearing. If the petitioner does not request a hearing, the court shall advise the
petitioner that the respondent may request a hearing and that notice of the hearing date
and time will be provided to the petitioner by mail at least five days before the hearing.
Upon receipt of the petition and a request for a hearing by the petitioner, the court shall
order a hearing. Personal service must be made upon the respondent not less than five
days before the hearing. If personal service cannot be completed in time to give the
respondent the minimum notice required under this paragraph, the court may set a new
hearing date. Nothing in this section shall be construed as requiring a hearing on a
matter that has no merit.

(b) Notwithstanding paragraph (a), the order for a hearing and a temporary order
issued under subdivision 4 may be served on the respondent by means of a one-week
published notice under section 645.11, if:

(1) the petitioner files an affidavit with the court stating that an attempt at personal
service made by a sheriff was unsuccessful deleted text begin because the respondent is avoiding service by
concealment or otherwise deleted text end ; and

(2) a copy of the petition and order for hearing and any temporary restraining order
has been mailed to the respondent at the respondent's residence or place of business, if the
respondent is an organization, or the respondent's residence or place of business is not
known to the petitioner.

(c) Regardless of the method of service, if the respondent is a juvenile, whenever
possible, the court also shall have notice of the pendency of the case and of the time and
place of the hearing served by mail at the last known address upon any parent or guardian
of the juvenile respondent who is not the petitioner.

(d) A request for a hearing under this subdivision must be made within 20 days
of service of the petition.

Subd. 3a.

Filing fee; cost of service.

The filing fees for a restraining order under
this section are waived for the petitioner if the petition alleges acts that would constitute a
violation of section 609.749, subdivision 2, 3, 4, or 5, or sections 609.342 to 609.3451.
The court administrator and the sheriff of any county in this state shall perform their
duties relating to service of process without charge to the petitioner. The court shall direct
payment of the reasonable costs of service of process if served by a private process server
when the sheriff is unavailable or if service is made by publication. The court may direct
a respondent to pay to the court administrator the petitioner's filing fees and reasonable
costs of service of process if the court determines that the respondent has the ability to
pay the petitioner's fees and costs.

new text begin Subd. 3b. new text end

new text begin Information on petitioner's location or residence. new text end

new text begin Upon the petitioner's
request, information maintained by the court regarding the petitioner's location or
residence is not accessible to the public and may be disclosed only to court personnel
or law enforcement for purposes of service of process, conducting an investigation, or
enforcing an order.
new text end

Subd. 4.

Temporary restraining order; relief by court.

(a) The court may issue a
temporary restraining order that provides any or all of the following:

(1) orders the respondent to cease or avoid the harassment of another person; or

(2) orders the respondent to have no contact with deleted text begin another person deleted text end new text begin the petitioner,
whether in person, by telephone, mail, social media, or electronic mail or message,
through electronic devices, through a third party, or by any other means new text end .

(b) The court may issue an order under paragraph (a) if the petitioner files a petition
in compliance with subdivision 3 and if the court finds reasonable grounds to believe that
the respondent has engaged in harassment. When a petition alleges harassment as defined
by subdivision 1, paragraph (a), clause (1), the petition must further allege an immediate
and present danger of harassment before the court may issue a temporary restraining order
under this section. When signed by a referee, the temporary order becomes effective
upon the referee's signature.

(c) Notice need not be given to the respondent before the court issues a temporary
restraining order under this subdivision. A copy of the restraining order must be served on
the respondent along with the order for hearing and petition, as provided in subdivision 3.
If the respondent is a juvenile, whenever possible, a copy of the restraining order, along
with notice of the pendency of the case and the time and place of the hearing, shall also
be served by mail at the last known address upon any parent or guardian of the juvenile
respondent who is not the petitioner. A temporary restraining order may be entered only
against the respondent named in the petition.

(d) The temporary restraining order is in effect until a hearing is held on the issuance
of a restraining order under subdivision 5. The court shall hold the hearing on the issuance
of a restraining order if the petitioner requests a hearing. The hearing may be continued
by the court upon a showing that the respondent has not been served with a copy of the
temporary restraining order despite the exercise of due diligence or if service is made by
published notice under subdivision 3 and the petitioner files the affidavit required under
that subdivision.

(e) If the temporary restraining order has been issued and the respondent requests a
hearing, the hearing shall be scheduled by the court upon receipt of the respondent's
request. Service of the notice of hearing must be made upon the petitioner not less than
five days prior to the hearing. The court shall serve the notice of the hearing upon the
petitioner by mail in the manner provided in the Rules of Civil Procedure for pleadings
subsequent to a complaint and motions and shall also mail notice of the date and time of
the hearing to the respondent. In the event that service cannot be completed in time to
give the respondent or petitioner the minimum notice required under this subdivision, the
court may set a new hearing date.

(f) A request for a hearing under this subdivision must be made within deleted text begin 45 deleted text end new text begin 20 new text end days
after the temporary restraining order is deleted text begin issued deleted text end new text begin served new text end .

Subd. 5.

Restraining order.

(a) The court may issue a restraining order that
provides any or all of the following:

(1) orders the respondent to cease or avoid the harassment of another person; or

(2) orders the respondent to have no contact with deleted text begin another person deleted text end new text begin the petitioner,
whether in person, by telephone, mail, social media, or electronic mail or message,
through electronic devices, through a third party, or by any other means new text end .

(b) The court may issue an order under paragraph (a) if all of the following occur:

(1) the petitioner has filed a petition under subdivision 3;

(2) the sheriff has served respondent with a copy of the temporary restraining order
obtained under subdivision 4, and with notice of the right to request a hearing, or service
has been made by publication under subdivision 3, paragraph (b); and

(3) the court finds at the hearing that there are reasonable grounds to believe that
the respondent has engaged in harassment.

A restraining order may be issued only against the respondent named in the petition;
except that if the respondent is an organization, the order may be issued against and
apply to all of the members of the organization. If the court finds that the petitioner has
had two or more previous restraining orders in effect against the same respondent or the
respondent has violated a prior or existing restraining order on two or more occasions,
relief granted by the restraining order may be for a period of up to 50 years. In all other
cases, relief granted by the restraining order must be for a fixed period of not more than
two years. When a referee presides at the hearing on the petition, the restraining order
becomes effective upon the referee's signature.

(c) An order issued under this deleted text begin subdivision deleted text end new text begin section, or a short-form notification
described in subdivision 8a, new text end must be personally served upon the respondent.

(d) deleted text begin If the court orders relief for a period of up to 50 years under paragraph (a),
the respondent named in the restraining order may request to have the restraining order
vacated or modified if the order has been in effect for at least five years and the respondent
has not violated the order. Application for relief under this paragraph must be made in the
county in which the restraining order was issued. Upon receipt of the request, the court
shall set a hearing date. Personal service must be made upon the petitioner named in the
restraining order not less than 30 days before the date of the hearing. At the hearing, the
respondent named in the restraining order has the burden of proving by a preponderance
of the evidence that there has been a material change in circumstances and that the reasons
upon which the court relied in granting the restraining order no longer apply and are
unlikely to occur. If the court finds that the respondent named in the restraining order has
met the burden of proof, the court may vacate or modify the order. If the court finds that
the respondent named in the restraining order has not met the burden of proof, the court
shall deny the request and no request may be made to vacate or modify the restraining
order until five years have elapsed from the date of denial. An order vacated or modified
under this paragraph must be personally served on the petitioner named in the restraining
order. deleted text end new text begin If personal service cannot be completed under paragraph (c), the court may order
alternative service as described under subdivision 3, paragraph (b).
new text end

new text begin Subd. 5a. new text end

new text begin Subsequent orders and extensions. new text end

new text begin (a) Upon application, notice to all
parties, and hearing, the court may extend the relief granted in an existing harassment
restraining order or, if a petitioner's harassment restraining order is no longer in effect
when an application for subsequent relief is made, grant a new order. The court may
extend the terms of an existing order or, if an order is no longer in effect, grant a new
order upon a showing that:
new text end

new text begin (1) the respondent has violated a prior or existing harassment restraining order;
new text end

new text begin (2) the petitioner is reasonably in fear of harassment from the respondent;
new text end

new text begin (3) the respondent has engaged in the act of stalking within the meaning of section
609.749, subdivision 2; or
new text end

new text begin (4) the respondent is incarcerated and about to be released, or has recently been
released from incarceration.
new text end

new text begin A petitioner does not need to show that harassment is imminent to obtain an extension or a
subsequent order under this subdivision.
new text end

new text begin (b) Relief granted by the harassment restraining order may be for a period of up to
50 years, if the court finds:
new text end

new text begin (1) the respondent has violated a prior or existing harassment restraining order on
two or more occasions; or
new text end

new text begin (2) the petitioner has had two or more harassment restraining orders in effect against
the same respondent.
new text end

new text begin An order issued under this paragraph may restrain the harassing party from committing
acts of harassment; or prohibit the harassing party from having any contact with the
petitioner, whether in person, by telephone, mail, social media, or electronic mail or
message, through electronic devices, through a third party, or by any other means.
new text end

new text begin (c) A request for a hearing under this subdivision must be made within 20 days after
the application for subsequent order or extension is served.
new text end

new text begin Subd. 5b. new text end

new text begin Modifying or vacating order. new text end

new text begin (a) Upon application, notice to all parties,
and hearing, the court may modify the terms of an existing harassment restraining order.
new text end

new text begin (b) If the court orders relief under subdivision 5a, paragraph (b), the respondent
named in the harassment restraining order may request to have the order vacated or
modified if the order has been in effect for at least five years and the respondent has not
violated the order during that time. Application for relief under this subdivision must be
made in the county in which the harassment restraining order was issued. Upon receipt of
the request, the court shall set a hearing date. Personal service must be made upon the
petitioner named in the harassment restraining order not less than 30 days before the
date of the hearing. At the hearing, the respondent named in the harassment restraining
order has the burden of proving by a preponderance of the evidence that there has been
a material change in circumstances and that the reasons upon which the court relied in
granting or extending the harassment restraining order no longer apply and are unlikely to
occur. If the court finds that the respondent named in the harassment restraining order
has met the burden of proof, the court may vacate or modify the order. If the court finds
that the respondent named in the harassment restraining order has not met the burden of
proof, the court shall deny the request and no request may be made to vacate or modify
the harassment restraining order until five years have elapsed from the date of denial. An
order vacated or modified under this paragraph must be personally served on the petitioner
named in the harassment restraining order.
new text end

new text begin (c) A request for a hearing under this subdivision must be made within 20 days after
the application for modification or vacation is served.
new text end

Subd. 6.

Violation of restraining order.

(a) A person who violates a restraining
order issued under this section is subject to the penalties provided in paragraphs (b) to (d).

(b) Except as otherwise provided in paragraphs (c) and (d), when a temporary
restraining order or a restraining order is granted under this section and the respondent
knows of the order, violation of the order is a misdemeanor.

(c) A person is guilty of a gross misdemeanor who violates the order within ten
years of a previous qualified domestic violence-related offense conviction or adjudication
of delinquency.

(d) A person is guilty of a felony and may be sentenced to imprisonment for not
more than five years or to payment of a fine of not more than $10,000, or both, if the
person violates the order:

(1) within ten years of the first of two or more previous qualified domestic
violence-related offense convictions or adjudications of delinquency;

(2) because of the victim's or another's actual or perceived race, color, religion, sex,
sexual orientation, disability as defined in section 363A.03, age, or national origin;

(3) by falsely impersonating another;

(4) while possessing a dangerous weapon;

(5) with an intent to influence or otherwise tamper with a juror or a judicial
proceeding or with intent to retaliate against a judicial officer, as defined in section
609.415, or a prosecutor, defense attorney, or officer of the court, because of that person's
performance of official duties in connection with a judicial proceeding; or

(6) against a victim under the age of 18, if the respondent is more than 36 months
older than the victim.

(e) A person who commits violations in two or more counties may be prosecuted in
any county in which one of the acts was committed for all acts in violation of this section.

(f) A person may be prosecuted at the place where any call is made or received or, in
the case of wireless or electronic communication or any communication made through
any available technologies, where the actor or victim resides, or in the jurisdiction of
the victim's designated address if the victim participates in the address confidentiality
program established under chapter 5B.

(g) A peace officer shall arrest without a warrant and take into custody a person
whom the peace officer has probable cause to believe has violated an order issued under
deleted text begin subdivision 4 or 5 deleted text end new text begin this section new text end if the existence of the order can be verified by the officer. new text begin A
person arrested under this section shall be held in custody for at least 36 hours, excluding
the day of arrest, Sundays, and holidays, unless the person is released earlier by a judge or
judicial officer. A peace officer acting in good faith and exercising due care in making
an arrest pursuant to this paragraph is immune from civil liability that might result from
the officer's actions.
new text end

(h) A violation of a temporary restraining order or restraining order shall also
constitute contempt of court.

(i) Upon the filing of an affidavit by the petitioner, any peace officer, or an interested
party designated by the court, alleging that the respondent has violated an order issued under
deleted text begin subdivision 4 or 5 deleted text end new text begin this section new text end , the court may issue an order to the respondent requiring
the respondent to appear within 14 days and show cause why the respondent should not
be held in contempt of court. The court also shall refer the violation of the order to the
appropriate prosecuting authority for possible prosecution under paragraph (b), (c), or (d).

Subd. 7.

Copy to law enforcement agency.

new text begin (a) new text end An order granted under this
section shall be forwarded by the court administrator within 24 hours to the local law
enforcement agency with jurisdiction over the residence of the applicant. Each appropriate
law enforcement agency shall make available to other law enforcement officers through
a system for verification, information as to the existence and status of any order issued
under this section.

new text begin (b) If the petitioner notifies the court administrator of a change in the petitioner's
residence so that a different local law enforcement agency has jurisdiction over the
residence, the harassment restraining order and any continuance of a harassment
restraining order must be forwarded by the court administrator to the new law enforcement
agency within 24 hours of the notice. If the petitioner notifies the new law enforcement
agency that a harassment restraining order has been issued under this section and the
petitioner has established a new residence within that agency's jurisdiction, within 24
hours the local law enforcement agency shall request a copy of the harassment restraining
order from the court administrator in the county that issued the order.
new text end

new text begin (c) When a harassment restraining order is granted, the applicant for a harassment
restraining order must be told by the court that:
new text end

new text begin (1) notification of a change in residence should be given immediately to the court
administrator and to the local law enforcement agency having jurisdiction over the new
residence of the petitioner;
new text end

new text begin (2) the reason for notification of a change in residence is to forward a harassment
restraining order to the proper law enforcement agency; and
new text end

new text begin (3) the harassment restraining order must be forwarded to the law enforcement
agency having jurisdiction over the new residence within 24 hours of notification of a
change in residence, whether notification is given to the court administrator or to the local
law enforcement agency having jurisdiction over the petitioner's new residence.
new text end

new text begin A harassment restraining order is enforceable even if the petitioner does not notify the
court administrator or the appropriate law enforcement agency of a change in residence.
new text end

Subd. 8.

Notice.

(a) An order granted under this section must contain a conspicuous
notice to the respondent:

(1) of the specific conduct that will constitute a violation of the order;

(2) that violation of an order is either (i) a misdemeanor punishable by imprisonment
for up to 90 days or a fine of up to $1,000, or both, (ii) a gross misdemeanor punishable
by imprisonment for up to one year or a fine of up to $3,000, or both, or (iii) a felony
punishable by imprisonment for up to five years or a fine of up to $10,000, or both; and

(3) that a peace officer must arrest without warrant and take into custody a person if
the peace officer has probable cause to believe the person has violated a restraining order.

(b) If the court grants relief for a period of up to 50 years under subdivision deleted text begin 5 deleted text end new text begin 5a new text end ,
the order must also contain a conspicuous notice to the respondent that the respondent
must wait five years to seek a modification of the order.

new text begin Subd. 8a. new text end

new text begin Short-form notification. new text end

new text begin (a) In lieu of personal service of a harassment
restraining order under subdivision 5, a law enforcement officer may serve a person with a
short-form notification. The short-form notification must include the following clauses:
the respondent's name; the respondent's date of birth, if known; the petitioner's name; the
names of other protected parties; the date and county in which the ex parte harassment
restraining order or harassment restraining order was filed; the court file number; the
hearing date and time, if known; the conditions that apply to the respondent, either in
checklist form or handwritten; and the name of the judge who signed the order. The short
form notification must be in bold print in the following form:
new text end

new text begin "The harassment restraining order is now enforceable. You must report to your
nearest sheriff office or county court to obtain a copy of the harassment restraining order.
You are subject to arrest and may be charged with a misdemeanor, gross misdemeanor,
or felony if you violate any of the terms of the harassment restraining order or this
short-form notification."
new text end

new text begin (b) Upon verification of the identity of the respondent and the existence of an
unserved harassment restraining order against the respondent, a law enforcement officer
may detain the respondent for a reasonable time necessary to complete and serve the
short form notification.
new text end

new text begin (c) When service is made by short-form notification, it may be proved by the
affidavit of the law enforcement officer making the service.
new text end

new text begin (d) For service under this section only, service upon an individual may occur at any
time, including Sundays and legal holidays.
new text end

new text begin (e) The superintendent of the Bureau of Criminal Apprehension shall provide the
short-form notification to law enforcement agencies.
new text end

new text begin Subd. 8b. new text end

new text begin Assistance of sheriff in service or execution. new text end

new text begin When an order is issued
under this section upon request of the petitioner, the court shall order the sheriff to
accompany the petitioner and assist in placing the petitioner in possession of the dwelling
or residence, or otherwise assist in execution or service of the harassment restraining
order. If the application for relief is brought in a county in which the respondent is not
present, the sheriff shall forward the pleadings necessary for service upon the respondent
to the sheriff of the county in which the respondent is present. This transmittal must
be expedited to allow for timely service.
new text end

new text begin Subd. 8c. new text end

new text begin Service by others. new text end

new text begin Peace officers licensed by the state of Minnesota
and corrections officers, including, but not limited to, probation officers, court services
officers, parole officers, and employees of jails or correctional facilities, may serve
a harassment restraining order.
new text end

Subd. 9.

Effect on local ordinances.

Nothing in this section shall supersede or
preclude the continuation or adoption of any local ordinance which applies to a broader
scope of targeted residential picketing conduct than that described in subdivision 1.

Subd. 10.

Prohibition against employer retaliation.

(a) An employer shall not
discharge, discipline, threaten, otherwise discriminate against, or penalize an employee
regarding the employee's compensation, terms, conditions, location, or privileges of
employment, because the employee took reasonable time off from work to obtain or
attempt to obtain relief under this section. Except in cases of imminent danger to the health
or safety of the employee or the employee's child, or unless impracticable, an employee
who is absent from the workplace shall give 48 hours' advance notice to the employer.
Upon request of the employer, the employee shall provide verification that supports the
employee's reason for being absent from the workplace. All information related to the
employee's leave pursuant to this section shall be kept confidential by the employer.

(b) An employer who violates paragraph (a) is guilty of a misdemeanor and may
be punished for contempt of court. In addition, the court shall order the employer to pay
back wages and offer job reinstatement to any employee discharged from employment in
violation of paragraph (a).

(c) In addition to any remedies otherwise provided by law, an employee injured by
a violation of paragraph (a) may bring a civil action for recovery of damages, together
with costs and disbursements, including reasonable attorneys fees, and may receive such
injunctive and other equitable relief, including reinstatement, as determined by the court.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2015.
new text end