Denial of motion to terminate a PPO; Whether the trial court acted as an impartial decision-maker; People v. Cheeks; A trial court's authority to question witnesses; MRE 614(b); In re Moore; Whether the evidence showed more than one incident between the parties; Pobursky v. Gee; MCL 750.411h(1)(d) (defining "stalking"); MCL 750.411h(1)(a) (defining "course of conduct"); Kampf v. Kampf; Whether the appeal should be dismissed as "moot"; B P 7 v. Bureau of State Lottery; Collateral effects; People v. Cathey; Retention of the PPO on the LEIN as a collateral consequence; Hayford v. Hayford; Absence of any indication that the trial court judge who entertained the petitioner's ex parte motion for a PPO and respondent's motion to set aside the PPO was ever presented with the proposed stipulated order to terminate the PPO
Holding, inter alia, that nothing in the record suggested that the trial court was biased against the respondent and that the trial court did not abuse its discretion in refusing to terminate the PPO, the court affirmed the trial court's order denying respondent's motion to terminate the PPO. On 7/25/11, petitioner filed a petition for a PPO against stalking by respondent, who was her next door neighbor. Petitioner attached a seven-page document to her petition, averring that respondent "has continually harassed me multiple times." As an example, she explained that on 7/9/11, "the parties had a heated argument near their property line." She alleged that respondent pushed her to the ground, and her son immediately intervened. Respondent and her son then allegedly had a physical altercation that resulted in extensive bruising to her son's back. Petitioner asserted that when respondent pushed her to the ground, she suffered injuries to her foot that required medical treatment. She also stated that she had called 911 multiple times due to respondent's threats and reckless use of firearms. The trial court entered the requested ex parte PPO against stalking. The PPO was set to expire on 1/25/12. Respondent filed a motion to terminate the PPO, attaching a six-page addendum to his motion recalling his version of the 7/9/11 events. The trial court conducted a brief hearing on his motion on 9/8/11 and denied the motion. Respondent later (represented by counsel) unsuccessfully moved for reconsideration. On appeal, he argued, inter alia, that the trial court judge who refused to set aside the PPO failed to act as an impartial decision-maker and instead, acted as an advocate for petitioner by asking her specific questions intended to elicit a legal foundation to maintain the PPO. Respondent argued that the trial judge abandoned his role as a neutral, impartial presiding judge. The court disagreed, concluding that "the trial court did not assume the role of advocate." Review of the transcript indicated that "the trial court exercised tight control over the hearing to obtain direct, relevant responses. The trial court's exercise of control was apparently necessary because neither party was represented by counsel." While a reading of the transcript suggested that the trial court "was somewhat strict with respondent, the trial court was equally strict with petitioner." The court held that the trial court did not show bias in favor of petitioner or against respondent. It was "apparent that the trial court's questioning was intended to place legally relevant information on the record without unnecessary delay." The court also rejected respondent's claim that the evidence failed to show more than one incident between the parties, noting that the trial court was not limited to a consideration of the testimony presented at the hearing. By originally issuing the ex parte order on 7/25, the trial court affirmatively found that the 7/25 petition "established stalking behavior by respondent." The petition "stated that respondent had harassed or threatened petitioner on multiple occasions." The petition included five separate dates when respondent allegedly "intimidate[d] and frighten[ed]" petitioner. When her testimony was considered together with the petition, "the trial court had a sufficient factual basis from which it could find that respondent engaged in a 'course of conduct' of two or more stalking acts."
Full Text Opinion
State Bar of Michigan
306 Townsend St
Lansing, MI 48933-2012