SF 2684

2nd Engrossment - 80th Legislature (1997 - 1998) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to crime; providing criminal penalties for 
  1.3             whoever violates an order for protection/minor 
  1.4             respondent; extending a pilot program in the fourth 
  1.5             judicial district; prohibiting violators of those 
  1.6             orders from possessing firearms; clarifying service of 
  1.7             notice under the harassment restraining order law; 
  1.8             amending Minnesota Statutes 1996, section 609.748, 
  1.9             subdivisions 3 and 4; Laws 1997, chapter 239, article 
  1.10            10, sections 1 and 19. 
  1.11  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.12     Section 1.  Minnesota Statutes 1996, section 609.748, 
  1.13  subdivision 3, is amended to read: 
  1.14     Subd. 3.  [CONTENTS OF PETITION; HEARING; NOTICE.] (a) A 
  1.15  petition for relief must allege facts sufficient to show the 
  1.16  following:  
  1.17     (1) the name of the alleged harassment victim; 
  1.18     (2) the name of the respondent; and 
  1.19     (3) that the respondent has engaged in harassment. 
  1.20  The petition shall be accompanied by an affidavit made under 
  1.21  oath stating the specific facts and circumstances from which 
  1.22  relief is sought.  The court shall provide simplified forms and 
  1.23  clerical assistance to help with the writing and filing of a 
  1.24  petition under this section and shall advise the petitioner of 
  1.25  the right to sue in forma pauperis under section 563.01.  Upon 
  1.26  receipt of the petition, the court shall order a hearing, which 
  1.27  must be held not later than 14 days from the date of the order.  
  1.28  Personal service must be made upon the respondent not less than 
  2.1   five days before the hearing.  If personal service cannot be 
  2.2   completed in time to give the respondent the minimum notice 
  2.3   required under this paragraph, the court may set a new hearing 
  2.4   date. 
  2.5      (b) Notwithstanding paragraph (a), the order for a hearing 
  2.6   and a temporary order issued under subdivision 4 may be served 
  2.7   on the respondent by means of a one-week published notice under 
  2.8   section 645.11, if: 
  2.9      (1) the petitioner files an affidavit with the court 
  2.10  stating that an attempt at personal service made by a sheriff 
  2.11  was unsuccessful because the respondent is avoiding service by 
  2.12  concealment or otherwise; and 
  2.13     (2) a copy of the petition and order for hearing and any 
  2.14  temporary restraining order has been mailed to the respondent at 
  2.15  the respondent's residence or place of business, if the 
  2.16  respondent is an organization, or the respondent's residence or 
  2.17  place of business is not known to the petitioner. 
  2.18     (c) Regardless of the method of service, if the respondent 
  2.19  is a juvenile, whenever possible, the court also shall have 
  2.20  notice of the pendency of the case and of the time and place of 
  2.21  the hearing served by mail at the last known address upon any 
  2.22  parent or guardian of the juvenile respondent who is not the 
  2.23  petitioner. 
  2.24     Sec. 2.  Minnesota Statutes 1996, section 609.748, 
  2.25  subdivision 4, is amended to read: 
  2.26     Subd. 4.  [TEMPORARY RESTRAINING ORDER.] (a) The court may 
  2.27  issue a temporary restraining order ordering the respondent to 
  2.28  cease or avoid the harassment of another person or to have no 
  2.29  contact with that person if the petitioner files a petition in 
  2.30  compliance with subdivision 3 and if the court finds reasonable 
  2.31  grounds to believe that the respondent has engaged in harassment.
  2.32     (b) Notice need not be given to the respondent before the 
  2.33  court issues a temporary restraining order under this 
  2.34  subdivision.  A copy of the restraining order must be served on 
  2.35  the respondent along with the order for hearing and petition, as 
  2.36  provided in subdivision 3.  If the respondent is a juvenile, 
  3.1   whenever possible, a copy of the restraining order, along with 
  3.2   notice of the pendency of the case and the time and place of the 
  3.3   hearing, shall also be served by mail at the last known address 
  3.4   upon any parent or guardian of the juvenile respondent who is 
  3.5   not the petitioner.  A temporary restraining order may be 
  3.6   entered only against the respondent named in the petition.  
  3.7      (c) The temporary restraining order is in effect until a 
  3.8   hearing is held on the issuance of a restraining order under 
  3.9   subdivision 5.  The court shall hold the hearing on the issuance 
  3.10  of a restraining order within 14 days after the temporary 
  3.11  restraining order is issued unless (1) the time period is 
  3.12  extended upon written consent of the parties; or (2) the time 
  3.13  period is extended by the court for one additional 14-day period 
  3.14  upon a showing that the respondent has not been served with a 
  3.15  copy of the temporary restraining order despite the exercise of 
  3.16  due diligence or if service is made by published notice under 
  3.17  subdivision 3 and the petitioner files the affidavit required 
  3.18  under that subdivision.  
  3.19     Sec. 3.  Laws 1997, chapter 239, article 10, section 1, is 
  3.20  amended to read: 
  3.21     Section 1.  [PILOT PROGRAM.] 
  3.22     Actions under sections 2 to 26 are limited to a pilot 
  3.23  program in the 4th judicial district for the period June 1, 
  3.24  1998, through July 31, 1999 2000.  At the conclusion of the 
  3.25  pilot period, the 4th judicial district shall report to the 
  3.26  legislature on the number of petitions filed under sections 2 to 
  3.27  26, the relationship of the parties, and the disposition of each 
  3.28  petition. 
  3.29     Sec. 4.  Laws 1997, chapter 239, article 10, section 19, is 
  3.30  amended to read. 
  3.31     Sec. 19.  [VIOLATION OF AN ORDER FOR PROTECTION/MINOR 
  3.32  RESPONDENT; PENALTIES.] 
  3.33     Subdivision 1.  [AFFIDAVIT; ORDER TO SHOW CAUSE.] The 
  3.34  petitioner, a peace officer, or an interested party designated 
  3.35  by the court may file an affidavit with the court alleging that 
  3.36  a minor respondent has violated an order for protection/minor 
  4.1   respondent under sections 2 to 26.  The court may order the 
  4.2   minor respondent to appear and show cause within 14 days why the 
  4.3   minor respondent should not be found in contempt of court and 
  4.4   punished for the contempt.  The court may also order the minor 
  4.5   to participate in counseling or other appropriate programs 
  4.6   selected by the court.  The hearing may be held by the court in 
  4.7   any county in which the petitioner or minor respondent 
  4.8   temporarily or permanently resides at the time of the alleged 
  4.9   violation. or in the county in which the alleged violation 
  4.10  occurred, if the petitioner and respondent do not reside in this 
  4.11  state.  The court also shall refer the violation of the order 
  4.12  for protection/minor respondent to the county attorney for 
  4.13  possible prosecution under subdivision 1a, paragraph (b), (c), 
  4.14  or (d), or if the respondent is an adult at the time of the 
  4.15  alleged violation, to the appropriate prosecuting authority for 
  4.16  possible prosecution under Minnesota Statutes, chapter 518B. 
  4.17     Subd. 1a.  [PENALTIES.] (a) A person who violates an order 
  4.18  for protection/minor respondent issued under this section is 
  4.19  subject to the penalties provided in paragraphs (b) to (d), 
  4.20  except that if the respondent or person to be restrained is over 
  4.21  the age of 18 at the time of the violation, Minnesota Statutes, 
  4.22  section 518B.01, subdivision 14, shall apply.  If the respondent 
  4.23  is still a minor at the time of the violation, the laws relating 
  4.24  to delinquency prosecution and disposition in juvenile court 
  4.25  shall apply, consistent with this section and notwithstanding 
  4.26  the provisions of Minnesota Statutes, section 260.015, 
  4.27  subdivision 21. 
  4.28     (b) Except as otherwise provided in paragraphs (c) and (d), 
  4.29  whenever an order for protection/minor respondent is granted 
  4.30  under this section or a similar law of another state, and the 
  4.31  respondent or person to be restrained knows of the order, 
  4.32  violation of the order for protection/minor respondent is a 
  4.33  misdemeanor.  Upon a misdemeanor adjudication of delinquency, 
  4.34  the respondent must be ordered to participate in counseling or 
  4.35  other appropriate programs selected by the court.  A violation 
  4.36  of an order for protection/minor respondent shall also 
  5.1   constitute contempt of court and be subject to the penalties 
  5.2   provided in Minnesota Statutes, chapter 588. 
  5.3      (c) A person is guilty of a gross misdemeanor who knowingly 
  5.4   violates this subdivision during the time period between a 
  5.5   previous adjudication of delinquency under this subdivision; 
  5.6   Minnesota Statutes, sections 609.221 to 609.224; 609.2242; 
  5.7   609.713, subdivision 1 or 3; 609.748, subdivision 6; 609.749; or 
  5.8   a similar law of another state; and the end of the five years 
  5.9   following discharge from sentence for that adjudication of 
  5.10  delinquency.  Upon a gross misdemeanor adjudication of 
  5.11  delinquency under this paragraph, the respondent must be ordered 
  5.12  to participate in counseling or other appropriate programs 
  5.13  selected by the court. 
  5.14     (d) A person is guilty of a felony if the person knowingly 
  5.15  violates this subdivision: 
  5.16     (1) during the time period between the first of two or more 
  5.17  previous adjudications of delinquency under this section or 
  5.18  Minnesota Statutes, sections 609.221 to 609.224; 609.2242; 
  5.19  609.713, subdivision 1 or 3; 609.748, subdivision 6; 609.749; or 
  5.20  a similar law of another state; and the end of the five years 
  5.21  following discharge from sentence for that adjudication of 
  5.22  delinquency; or 
  5.23     (2) while possessing a dangerous weapon, as defined in 
  5.24  Minnesota Statutes, section 609.02, subdivision 6. 
  5.25  Upon a felony adjudication of delinquency under this paragraph, 
  5.26  the court shall order, at a minimum, that the respondent 
  5.27  participate in counseling or other appropriate programs selected 
  5.28  by the court. 
  5.29     (e) A peace officer shall arrest without a warrant and take 
  5.30  into custody a person whom the peace officer has probable cause 
  5.31  to believe has violated an order granted under this section, 
  5.32  Minnesota Statutes, chapter 518B, or a similar law of another 
  5.33  state restraining the person or excluding the person from the 
  5.34  residence or the petitioner's place of employment, even if the 
  5.35  violation of the order did not take place in the presence of the 
  5.36  peace officer, if the existence of the order can be verified by 
  6.1   the officer.  The person shall be held in custody for at least 
  6.2   36 hours, excluding the day of arrest, Sundays, and holidays, 
  6.3   unless the person is released earlier by a judge or judicial 
  6.4   officer.  A peace officer acting in good faith and exercising 
  6.5   due care in making an arrest pursuant to this paragraph is 
  6.6   immune from civil liability that might result from the officer's 
  6.7   actions.  A peace officer is not liable under Minnesota 
  6.8   Statutes, section 609.43, clause (1), for a failure to perform a 
  6.9   duty required by this paragraph. 
  6.10     (f) If the court finds that the respondent has violated an 
  6.11  order for protection/minor respondent and that there is reason 
  6.12  to believe that the respondent will commit a further violation 
  6.13  of the provisions of the order restraining the respondent from 
  6.14  committing acts of domestic abuse or excluding the respondent 
  6.15  from the petitioner's residence, the court may require the 
  6.16  respondent to acknowledge an obligation to comply with the order 
  6.17  on the record. 
  6.18     Subd. 2.  [EXTENSION OF PROTECTION ORDER.] If it is alleged 
  6.19  that a minor respondent has violated an order for 
  6.20  protection/minor respondent issued under sections 2 to 26 and 
  6.21  the court finds that the order has expired between the time of 
  6.22  the alleged violation and the court's hearing on the violation, 
  6.23  the court may grant a new order for protection/minor respondent 
  6.24  based solely on the minor respondent's alleged violation of the 
  6.25  prior order, to be effective until the hearing on the alleged 
  6.26  violation of the prior order.  The relief granted in the new 
  6.27  order for protection/minor respondent must be extended for a 
  6.28  fixed period, not to exceed one year, except when the court 
  6.29  determines a longer fixed period is appropriate. 
  6.30     Subd. 3.  [ADMITTANCE INTO DWELLING.] Admittance into the 
  6.31  petitioner's dwelling of an abusing party excluded from the 
  6.32  dwelling under an order for protection/minor respondent is not a 
  6.33  violation by the petitioner of the order. 
  6.34     Subd. 4.  [POSSESSION OF FIREARM.] (a) When a person is 
  6.35  adjudicated delinquent under subdivision 1a, paragraph (b), (c), 
  6.36  or (d), of violating an order for protection/minor respondent 
  7.1   and the court determines that the person used a firearm in any 
  7.2   way during commission of the violation, the court may order that 
  7.3   the person is prohibited from possessing any type of firearm for 
  7.4   any period longer than three years or for the remainder of the 
  7.5   person's life.  A person who violates this paragraph is guilty 
  7.6   of a gross misdemeanor.  At the time of the adjudication of 
  7.7   delinquency, the court shall inform the respondent whether and 
  7.8   for how long the respondent is prohibited from possessing a 
  7.9   firearm and that it is a gross misdemeanor to violate this 
  7.10  paragraph.  The failure of the court to provide this information 
  7.11  to a respondent does not affect the applicability of the firearm 
  7.12  possession prohibition or the gross misdemeanor penalty to that 
  7.13  respondent. 
  7.14     (b) Except as otherwise provided in paragraph (a), when a 
  7.15  person is adjudicated delinquent under subdivision 1a, paragraph 
  7.16  (b), (c), or (d), of violating an order for protection/minor 
  7.17  respondent, the court shall inform the respondent that the 
  7.18  respondent is prohibited from possessing a pistol for three 
  7.19  years from the date of adjudication of delinquency and that it 
  7.20  is a gross misdemeanor offense to violate this prohibition.  The 
  7.21  failure of the court to provide this information to a respondent 
  7.22  does not affect the applicability of the pistol possession 
  7.23  prohibition or the gross misdemeanor penalty to that respondent. 
  7.24     (c) Except as otherwise provided in paragraph (a), a person 
  7.25  is not entitled to possess a pistol if the person has been 
  7.26  adjudicated delinquent under subdivision 1a, paragraph (b), (c), 
  7.27  or (d), of violating an order for protection/minor respondent, 
  7.28  unless three years have elapsed from the date of adjudication of 
  7.29  delinquency and, during that time, the person has not been 
  7.30  adjudicated delinquent or convicted of any other violation of 
  7.31  this section or Minnesota Statutes, chapter 518B.  Property 
  7.32  rights may not be abated but access may be restricted by the 
  7.33  courts.  A person who possesses a pistol in violation of this 
  7.34  paragraph is guilty of a gross misdemeanor. 
  7.35     (d) If the court determines that a person adjudicated 
  7.36  delinquent under subdivision 1a, paragraph (b), (c), or (d), of 
  8.1   violating an order for protection/minor respondent owns or 
  8.2   possesses a firearm and used it in any way during the commission 
  8.3   of the violation, it shall order that the firearm be summarily 
  8.4   forfeited under Minnesota Statutes, section 609.5316, 
  8.5   subdivision 3. 
  8.6      Sec. 5.  [EFFECTIVE DATE.] 
  8.7      Sections 1, 2, and 4 are effective June 1, 1998, and apply 
  8.8   to crimes committed on or after that date.