SF 2737

1st Engrossment - 80th Legislature (1997 - 1998) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to domestic abuse; clarifying provisions for 
  1.3             recognition of orders for protection from other 
  1.4             jurisdictions; clarifying service provisions; 
  1.5             providing that certain mutual orders are not entitled 
  1.6             to full faith and credit; amending Minnesota Statutes 
  1.7             1996, section 518B.01, subdivisions 3a, 5, 6, and by 
  1.8             adding a subdivision; Minnesota Statutes 1997 
  1.9             Supplement, section 518B.01, subdivision 14. 
  1.10  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.11     Section 1.  Minnesota Statutes 1996, section 518B.01, 
  1.12  subdivision 3a, is amended to read: 
  1.13     Subd. 3a.  [FILING FEE.] The filing fees for an order for 
  1.14  protection under this section are waived for the petitioner. The 
  1.15  court administrator and, the sheriff of any county in this 
  1.16  state, and other law enforcement and corrections officers shall 
  1.17  perform their duties relating to service of process without 
  1.18  charge to the petitioner.  The court shall direct payment of the 
  1.19  reasonable costs of service of process if served by a private 
  1.20  process server when the sheriff or other law enforcement or 
  1.21  corrections officer is unavailable or if service is made by 
  1.22  publication, without requiring the petitioner to make 
  1.23  application under section 563.01.  The court may direct a 
  1.24  respondent to pay to the court administrator the petitioner's 
  1.25  filing fees and reasonable costs of service of process if the 
  1.26  court determines that the respondent has the ability to pay the 
  1.27  petitioner's fees and costs. 
  2.1      Sec. 2.  Minnesota Statutes 1996, section 518B.01, 
  2.2   subdivision 5, is amended to read: 
  2.3      Subd. 5.  [HEARING ON APPLICATION; NOTICE.] (a) Upon 
  2.4   receipt of the petition, the court shall order a hearing which 
  2.5   shall be held not later than 14 days from the date of the 
  2.6   order.  If an ex parte order has been issued under subdivision 7 
  2.7   and a hearing requested, the time periods under subdivision 7 
  2.8   for holding a hearing apply.  Personal service shall be made 
  2.9   upon the respondent not less than five days prior to the 
  2.10  hearing, if the hearing was requested by the petitioner.  If the 
  2.11  hearing was requested by the respondent after issuance of an ex 
  2.12  parte order under subdivision 7, service of the notice of 
  2.13  hearing must be made upon the petitioner not less than five days 
  2.14  prior to the hearing.  The court shall serve the notice of 
  2.15  hearing upon the petitioner by mail in the manner provided in 
  2.16  the rules of civil procedure for pleadings subsequent to a 
  2.17  complaint and motions and shall also mail notice of the date and 
  2.18  time of the hearing to the respondent.  In the event that 
  2.19  service cannot be completed in time to give the respondent or 
  2.20  petitioner the minimum notice required under this paragraph, the 
  2.21  court may set a new hearing date.  
  2.22     (b) Notwithstanding the provisions of paragraph (a), 
  2.23  service on the respondent may be made by one week published 
  2.24  notice, as provided under section 645.11, provided the 
  2.25  petitioner files with the court an affidavit stating that an 
  2.26  attempt at personal service made by a sheriff or other law 
  2.27  enforcement or corrections officer was unsuccessful because the 
  2.28  respondent is avoiding service by concealment or otherwise, and 
  2.29  that a copy of the petition and notice of hearing has been 
  2.30  mailed to the respondent at the respondent's residence or that 
  2.31  the residence is not known to the petitioner.  Service under 
  2.32  this paragraph is complete seven days after publication.  The 
  2.33  court shall set a new hearing date if necessary to allow the 
  2.34  respondent the five-day minimum notice required under paragraph 
  2.35  (a). 
  2.36     Sec. 3.  Minnesota Statutes 1996, section 518B.01, 
  3.1   subdivision 6, is amended to read: 
  3.2      Subd. 6.  [RELIEF BY THE COURT.] (a) Upon notice and 
  3.3   hearing, the court may provide relief as follows: 
  3.4      (1) restrain the abusing party from committing acts of 
  3.5   domestic abuse; 
  3.6      (2) exclude the abusing party from the dwelling which the 
  3.7   parties share or from the residence of the petitioner; 
  3.8      (3) exclude the abusing party from a reasonable area 
  3.9   surrounding the dwelling or residence, which area shall be 
  3.10  described specifically in the order; 
  3.11     (4) award temporary custody or establish temporary 
  3.12  visitation with regard to minor children of the parties on a 
  3.13  basis which gives primary consideration to the safety of the 
  3.14  victim and the children.  Except for cases in which custody is 
  3.15  contested, findings under section 257.025, 518.17, or 518.175 
  3.16  are not required.  If the court finds that the safety of the 
  3.17  victim or the children will be jeopardized by unsupervised or 
  3.18  unrestricted visitation, the court shall condition or restrict 
  3.19  visitation as to time, place, duration, or supervision, or deny 
  3.20  visitation entirely, as needed to guard the safety of the victim 
  3.21  and the children.  The court's decision on custody and 
  3.22  visitation shall in no way delay the issuance of an order for 
  3.23  protection granting other reliefs provided for in this section; 
  3.24     (5) on the same basis as is provided in chapter 518, 
  3.25  establish temporary support for minor children or a spouse, and 
  3.26  order the withholding of support from the income of the person 
  3.27  obligated to pay the support according to chapter 518; 
  3.28     (6) provide upon request of the petitioner counseling or 
  3.29  other social services for the parties, if married, or if there 
  3.30  are minor children; 
  3.31     (7) order the abusing party to participate in treatment or 
  3.32  counseling services; 
  3.33     (8) award temporary use and possession of property and 
  3.34  restrain one or both parties from transferring, encumbering, 
  3.35  concealing, or disposing of property except in the usual course 
  3.36  of business or for the necessities of life, and to account to 
  4.1   the court for all such transfers, encumbrances, dispositions, 
  4.2   and expenditures made after the order is served or communicated 
  4.3   to the party restrained in open court; 
  4.4      (9) exclude the abusing party from the place of employment 
  4.5   of the petitioner, or otherwise limit access to the petitioner 
  4.6   by the abusing party at the petitioner's place of employment; 
  4.7      (10) order the abusing party to pay restitution to the 
  4.8   petitioner; 
  4.9      (11) order the continuance of all currently available 
  4.10  insurance coverage without change in coverage or beneficiary 
  4.11  designation; and 
  4.12     (12) order, in its discretion, other relief as it deems 
  4.13  necessary for the protection of a family or household member, 
  4.14  including orders or directives to the sheriff or, constable, or 
  4.15  other law enforcement or corrections officer as provided by this 
  4.16  section. 
  4.17     (b) Any relief granted by the order for protection shall be 
  4.18  for a fixed period not to exceed one year, except when the court 
  4.19  determines a longer fixed period is appropriate.  When a referee 
  4.20  presides at the hearing on the petition, the order granting 
  4.21  relief becomes effective upon the referee's signature. 
  4.22     (c) An order granting the relief authorized in paragraph 
  4.23  (a), clause (1), may not be vacated or modified in a proceeding 
  4.24  for dissolution of marriage or legal separation, except that the 
  4.25  court may hear a motion for modification of an order for 
  4.26  protection concurrently with a proceeding for dissolution of 
  4.27  marriage upon notice of motion and motion.  The notice required 
  4.28  by court rule shall not be waived.  If the proceedings are 
  4.29  consolidated and the motion to modify is granted, a separate 
  4.30  order for modification of an order for protection shall be 
  4.31  issued. 
  4.32     (d) An order granting the relief authorized in paragraph 
  4.33  (a), clause (2), is not voided by the admittance of the abusing 
  4.34  party into the dwelling from which the abusing party is excluded.
  4.35     (e) If a proceeding for dissolution of marriage or legal 
  4.36  separation is pending between the parties, the court shall 
  5.1   provide a copy of the order for protection to the court with 
  5.2   jurisdiction over the dissolution or separation proceeding for 
  5.3   inclusion in its file. 
  5.4      (f) An order for restitution issued under this subdivision 
  5.5   is enforceable as civil judgment. 
  5.6      Sec. 4.  Minnesota Statutes 1996, section 518B.01, is 
  5.7   amended by adding a subdivision to read: 
  5.8      Subd. 9a.  [SERVICE BY OTHERS.] Peace officers licensed by 
  5.9   the state of Minnesota and corrections officers, including, but 
  5.10  not limited to, probation officers, court services officers, 
  5.11  parole officers, and employees of jails or correctional 
  5.12  facilities, may serve an order for protection. 
  5.13     Sec. 5.  Minnesota Statutes 1997 Supplement, section 
  5.14  518B.01, subdivision 14, is amended to read: 
  5.15     Subd. 14.  [VIOLATION OF AN ORDER FOR PROTECTION.] (a) A 
  5.16  person who violates an order for protection issued under this 
  5.17  section is subject to the penalties provided in paragraphs (b) 
  5.18  to (d).  
  5.19     (b) Except as otherwise provided in paragraphs (c) and (d), 
  5.20  whenever an order for protection is granted pursuant to this 
  5.21  section or a similar law of another state, the District of 
  5.22  Columbia, tribal lands, or United States territories, and the 
  5.23  respondent or person to be restrained knows of the order, 
  5.24  violation of the order for protection is a misdemeanor.  Upon a 
  5.25  misdemeanor conviction under this paragraph, the defendant must 
  5.26  be sentenced to a minimum of three days imprisonment and must be 
  5.27  ordered to participate in counseling or other appropriate 
  5.28  programs selected by the court.  If the court stays imposition 
  5.29  or execution of the jail sentence and the defendant refuses or 
  5.30  fails to comply with the court's treatment order, the court must 
  5.31  impose and execute the stayed jail sentence.  A violation of an 
  5.32  order for protection shall also constitute contempt of court and 
  5.33  be subject to the penalties provided in chapter 588. 
  5.34     (c) A person is guilty of a gross misdemeanor who knowingly 
  5.35  violates this subdivision during the time period between a 
  5.36  previous conviction under this subdivision; sections 609.221 to 
  6.1   609.224; 609.2242; 609.713, subdivision 1 or 3; 609.748, 
  6.2   subdivision 6; 609.749; or a similar law of another state, the 
  6.3   District of Columbia, tribal lands, or United States 
  6.4   territories; and the end of the five years following discharge 
  6.5   from sentence for that conviction.  Upon a gross misdemeanor 
  6.6   conviction under this paragraph, the defendant must be sentenced 
  6.7   to a minimum of ten days imprisonment and must be ordered to 
  6.8   participate in counseling or other appropriate programs selected 
  6.9   by the court.  Notwithstanding section 609.135, the court must 
  6.10  impose and execute the minimum sentence provided in this 
  6.11  paragraph for gross misdemeanor convictions. 
  6.12     (d) A person is guilty of a felony and may be sentenced to 
  6.13  imprisonment for not more than five years or to payment of a 
  6.14  fine of not more than $10,000, or both, if the person knowingly 
  6.15  violates this subdivision: 
  6.16     (1) during the time period between the first of two or more 
  6.17  previous convictions under this section or sections 609.221 to 
  6.18  609.224; 609.2242; 609.713, subdivision 1 or 3; 609.748, 
  6.19  subdivision 6; 609.749; or a similar law of another state, the 
  6.20  District of Columbia, tribal lands, or United States 
  6.21  territories; and the end of the five years following discharge 
  6.22  from sentence for that conviction; or 
  6.23     (2) while possessing a dangerous weapon, as defined in 
  6.24  section 609.02, subdivision 6. 
  6.25  Upon a felony conviction under this paragraph in which the court 
  6.26  stays imposition or execution of sentence, the court shall 
  6.27  impose at least a 30-day period of incarceration as a condition 
  6.28  of probation.  The court also shall order that the defendant 
  6.29  participate in counseling or other appropriate programs selected 
  6.30  by the court.  Notwithstanding section 609.135, the court must 
  6.31  impose and execute the minimum sentence provided in this 
  6.32  paragraph for felony convictions. 
  6.33     (e) A peace officer shall arrest without a warrant and take 
  6.34  into custody a person whom the peace officer has probable cause 
  6.35  to believe has violated an order granted pursuant to this 
  6.36  section or a similar law of another state, the District of 
  7.1   Columbia, tribal lands, or United States territories restraining 
  7.2   the person or excluding the person from the residence or the 
  7.3   petitioner's place of employment, even if the violation of the 
  7.4   order did not take place in the presence of the peace officer, 
  7.5   if the existence of the order can be verified by the officer.  
  7.6   The person shall be held in custody for at least 36 hours, 
  7.7   excluding the day of arrest, Sundays, and holidays, unless the 
  7.8   person is released earlier by a judge or judicial officer.  A 
  7.9   peace officer acting in good faith and exercising due care in 
  7.10  making an arrest pursuant to this paragraph is immune from civil 
  7.11  liability that might result from the officer's actions. 
  7.12     (f) If the court finds that the respondent has violated an 
  7.13  order for protection and that there is reason to believe that 
  7.14  the respondent will commit a further violation of the provisions 
  7.15  of the order restraining the respondent from committing acts of 
  7.16  domestic abuse or excluding the respondent from the petitioner's 
  7.17  residence, the court may require the respondent to acknowledge 
  7.18  an obligation to comply with the order on the record.  The court 
  7.19  may require a bond sufficient to deter the respondent from 
  7.20  committing further violations of the order for protection, 
  7.21  considering the financial resources of the respondent, and not 
  7.22  to exceed $10,000.  If the respondent refuses to comply with an 
  7.23  order to acknowledge the obligation or post a bond under this 
  7.24  paragraph, the court shall commit the respondent to the county 
  7.25  jail during the term of the order for protection or until the 
  7.26  respondent complies with the order under this paragraph.  The 
  7.27  warrant must state the cause of commitment, with the sum and 
  7.28  time for which any bond is required.  If an order is issued 
  7.29  under this paragraph, the court may order the costs of the 
  7.30  contempt action, or any part of them, to be paid by the 
  7.31  respondent.  An order under this paragraph is appealable.  
  7.32     (g) Upon the filing of an affidavit by the petitioner, any 
  7.33  peace officer, or an interested party designated by the court, 
  7.34  alleging that the respondent has violated any order for 
  7.35  protection granted pursuant to this section or a similar law of 
  7.36  another state, the District of Columbia, tribal lands, or United 
  8.1   States territories, the court may issue an order to the 
  8.2   respondent, requiring the respondent to appear and show cause 
  8.3   within 14 days why the respondent should not be found in 
  8.4   contempt of court and punished therefor.  The hearing may be 
  8.5   held by the court in any county in which the petitioner or 
  8.6   respondent temporarily or permanently resides at the time of the 
  8.7   alleged violation, or in the county in which the alleged 
  8.8   violation occurred, if the petitioner and respondent do not 
  8.9   reside in this state.  The court also shall refer the violation 
  8.10  of the order for protection to the appropriate prosecuting 
  8.11  authority for possible prosecution under paragraph (b), (c), or 
  8.12  (d). 
  8.13     (h) If it is alleged that the respondent has violated an 
  8.14  order for protection issued under subdivision 6 or a similar law 
  8.15  of another state, the District of Columbia, tribal lands, or 
  8.16  United States territories, and the court finds that the order 
  8.17  has expired between the time of the alleged violation and the 
  8.18  court's hearing on the violation, the court may grant a new 
  8.19  order for protection under subdivision 6 based solely on the 
  8.20  respondent's alleged violation of the prior order, to be 
  8.21  effective until the hearing on the alleged violation of the 
  8.22  prior order.  If the court finds that the respondent has 
  8.23  violated the prior order, the relief granted in the new order 
  8.24  for protection shall be extended for a fixed period, not to 
  8.25  exceed one year, except when the court determines a longer fixed 
  8.26  period is appropriate. 
  8.27     (i) The admittance into petitioner's dwelling of an abusing 
  8.28  party excluded from the dwelling under an order for protection 
  8.29  is not a violation by the petitioner of the order for protection.
  8.30     A peace officer is not liable under section 609.43, clause 
  8.31  (1), for a failure to perform a duty required by paragraph (e). 
  8.32     (j) When a person is convicted under paragraph (b) or (c) 
  8.33  of violating an order for protection and the court determines 
  8.34  that the person used a firearm in any way during commission of 
  8.35  the violation, the court may order that the person is prohibited 
  8.36  from possessing any type of firearm for any period longer than 
  9.1   three years or for the remainder of the person's life.  A person 
  9.2   who violates this paragraph is guilty of a gross misdemeanor.  
  9.3   At the time of the conviction, the court shall inform the 
  9.4   defendant whether and for how long the defendant is prohibited 
  9.5   from possessing a firearm and that it is a gross misdemeanor to 
  9.6   violate this paragraph.  The failure of the court to provide 
  9.7   this information to a defendant does not affect the 
  9.8   applicability of the firearm possession prohibition or the gross 
  9.9   misdemeanor penalty to that defendant. 
  9.10     (k) Except as otherwise provided in paragraph (j), when a 
  9.11  person is convicted under paragraph (b) or (c) of violating an 
  9.12  order for protection, the court shall inform the defendant that 
  9.13  the defendant is prohibited from possessing a pistol for three 
  9.14  years from the date of conviction and that it is a gross 
  9.15  misdemeanor offense to violate this prohibition.  The failure of 
  9.16  the court to provide this information to a defendant does not 
  9.17  affect the applicability of the pistol possession prohibition or 
  9.18  the gross misdemeanor penalty to that defendant. 
  9.19     (l) Except as otherwise provided in paragraph (j), a person 
  9.20  is not entitled to possess a pistol if the person has been 
  9.21  convicted under paragraph (b) or (c) after August 1, 1996, of 
  9.22  violating an order for protection, unless three years have 
  9.23  elapsed from the date of conviction and, during that time, the 
  9.24  person has not been convicted of any other violation of this 
  9.25  section.  Property rights may not be abated but access may be 
  9.26  restricted by the courts.  A person who possesses a pistol in 
  9.27  violation of this paragraph is guilty of a gross misdemeanor. 
  9.28     (m) If the court determines that a person convicted under 
  9.29  paragraph (b) or (c) of violating an order for protection owns 
  9.30  or possesses a firearm and used it in any way during the 
  9.31  commission of the violation, it shall order that the firearm be 
  9.32  summarily forfeited under section 609.5316, subdivision 3. 
  9.33     (n) A mutual protection order issued by a court in another 
  9.34  state, the District of Columbia, tribal lands, or United States 
  9.35  territories against a person who has petitioned, filed a 
  9.36  complaint, or otherwise filed a written pleading for a 
 10.1   protection order relating to domestic abuse is not entitled to 
 10.2   full faith and credit in this state if: 
 10.3      (1) the other party did not file a crosspetition or 
 10.4   counterpetition, complaint, or other written pleading seeking a 
 10.5   protection order; or 
 10.6      (2) a crosspetition or counterpetition, complaint, or other 
 10.7   written pleading was filed but the court did not make specific 
 10.8   findings of domestic abuse by each party and did not find that 
 10.9   each party was entitled to the order.