By Ben Solis
Gongwer News Service
The Wayne Circuit Court erred when it allowed a personal protection order petitioner to testify off-camera, curtailed cross examination during a key hearing and shifted the burden of proof from the petition to the target of the PPO, the Court of Appeals ruled in a unanimous decision issued Monday.
In a published opinion released Tuesday written by Judge Brock Swartzle, joined by Judge Thomas Cameron and Judge Kathleen Jansen, the panel in HMM v. JS (COA Docket No. 367586) vacated the circuit court’s order denying the respondent’s motion to terminate the PPO and remanded the case for a new hearing.
The case involved a petitioner who was 17 years old in 2023. She sought an ex parte PPO against the respondent and said she had a reasonable apprehension of sexual assault because he assaulted her in 2012 and other times after that date. The petitioner alleged that the respondent inappropriately touched her at his home at a restaurant. In her request for the PPO, the petitioner also told the court that a criminal investigation into the matter was pending.
A Wayne Circuit Court judge entered an ex parte order for the PPO, which prohibited the respondent from contacting, as well as possessing or purchasing a firearm. The PPO had immediate effect and was active until late April of this year. Violations of the order would have also subjected the respondent to arrest and potential criminal and civil contempt of court, which could include more than 90 days in jail. The court also directed the Department of State Police to add the respondent to the Law Enforcement Information Network.
The respondent challenged the order, moved to terminate the PPO and denied inappropriately touching the petitioner. The petitioner also moved to modify the original PPO because there was an error on the respondent’s birthdate, which could have affected his monitoring in LEIN.
A corrected PPO was issued while the court scheduled a hearing on the respondent’s motion to terminate the initial order.
During the hearing, the petitioner testified in another room and off-camera because the circuit court wanted to do everything it could to protect the child, the court’s record shows. When that occurred, the judge told the respondent’s counsel that the burden of proof now shifted to the respondent. On cross-examination, the petitioner alluded to being assaulted by her uncle, but the judge stopped all questions after that revelation and told the respondent’s counsel that it had heard enough.
When the respondent’s attorney challenged the lack of questioning, noting that he had yet to hear a clear allegation of assault against the respondent, the judge overruled the objection. The judge also denied the motion to terminate the PPO.
On appeal, Swartzle and his colleagues found the circuit court committed several plain errors that violated due process.
“Personal-protection orders ... offer trial courts a critical tool for protecting society’s most vulnerable persons. But, as with all critical tools of our constitutional government, PPOs must be used in ways consistent with fundamental notions of due process,” Swartzle wrote. “Where, as here, the petitioner testified off-camera for no discernible reason; cross examination was curtailed by the circuit court; and, most critically, the circuit court shifted the burden of proof from the petitioner to the respondent, the proceedings lacked the due process needed for continuation of the PPO.”
On the off-camera issue, Swartzle said the Confrontation Clause of the Sixth Amendment to the U.S. Constitution doesn’t apply in non-criminal cases like the one presented in HMM, but PPO proceedings have significant liberty interests at stake.
“With the limited testimony and inability of the circuit court to see petitioner, the court did not have the ability to assess petitioner’s credibility fully,” Swartzle wrote. “Nor did respondent’s counsel have the opportunity to see petitioner testify and respond accordingly to her demeanor or credibility.”
Regarding the curtailing of cross examination, Swartzle said the respondent was deprived of due process.
“By depriving respondent of the opportunity to cross-examine petitioner about the alleged sexual assault, the circuit court increased the risk of erroneously depriving respondent of significant liberty interests,” Swartzle wrote. “Allowing respondent to cross-examine petitioner properly would have diminished that risk.”
The burden of proof issue was also a clear violation of due process doctrine, with Swartzle noting that the court impermissibly shifted that burden to the respondent.
“Petitioner provided some detail of the alleged assaults in her petition, but the procedure employed at the hearing did not permit the circuit court to consider the evidence properly, nor did the circuit court require petitioner to establish that she had been sexually assaulted or was in reasonable apprehension of sexual assault,” Swartzle wrote. “Instead, after respondent was denied the ability to cross-examine petitioner and elicit information on the allegations against him, the circuit court asked respondent for evidence and then denied respondent’s motion.”
Swartzle also ruled that the same judge would handle the new hearing because there was insufficient evidence that the judge could set aside her previous findings, and because there was no appearance of justice that required a different judge to preside over the matter.
Gongwer News Service
The Wayne Circuit Court erred when it allowed a personal protection order petitioner to testify off-camera, curtailed cross examination during a key hearing and shifted the burden of proof from the petition to the target of the PPO, the Court of Appeals ruled in a unanimous decision issued Monday.
In a published opinion released Tuesday written by Judge Brock Swartzle, joined by Judge Thomas Cameron and Judge Kathleen Jansen, the panel in HMM v. JS (COA Docket No. 367586) vacated the circuit court’s order denying the respondent’s motion to terminate the PPO and remanded the case for a new hearing.
The case involved a petitioner who was 17 years old in 2023. She sought an ex parte PPO against the respondent and said she had a reasonable apprehension of sexual assault because he assaulted her in 2012 and other times after that date. The petitioner alleged that the respondent inappropriately touched her at his home at a restaurant. In her request for the PPO, the petitioner also told the court that a criminal investigation into the matter was pending.
A Wayne Circuit Court judge entered an ex parte order for the PPO, which prohibited the respondent from contacting, as well as possessing or purchasing a firearm. The PPO had immediate effect and was active until late April of this year. Violations of the order would have also subjected the respondent to arrest and potential criminal and civil contempt of court, which could include more than 90 days in jail. The court also directed the Department of State Police to add the respondent to the Law Enforcement Information Network.
The respondent challenged the order, moved to terminate the PPO and denied inappropriately touching the petitioner. The petitioner also moved to modify the original PPO because there was an error on the respondent’s birthdate, which could have affected his monitoring in LEIN.
A corrected PPO was issued while the court scheduled a hearing on the respondent’s motion to terminate the initial order.
During the hearing, the petitioner testified in another room and off-camera because the circuit court wanted to do everything it could to protect the child, the court’s record shows. When that occurred, the judge told the respondent’s counsel that the burden of proof now shifted to the respondent. On cross-examination, the petitioner alluded to being assaulted by her uncle, but the judge stopped all questions after that revelation and told the respondent’s counsel that it had heard enough.
When the respondent’s attorney challenged the lack of questioning, noting that he had yet to hear a clear allegation of assault against the respondent, the judge overruled the objection. The judge also denied the motion to terminate the PPO.
On appeal, Swartzle and his colleagues found the circuit court committed several plain errors that violated due process.
“Personal-protection orders ... offer trial courts a critical tool for protecting society’s most vulnerable persons. But, as with all critical tools of our constitutional government, PPOs must be used in ways consistent with fundamental notions of due process,” Swartzle wrote. “Where, as here, the petitioner testified off-camera for no discernible reason; cross examination was curtailed by the circuit court; and, most critically, the circuit court shifted the burden of proof from the petitioner to the respondent, the proceedings lacked the due process needed for continuation of the PPO.”
On the off-camera issue, Swartzle said the Confrontation Clause of the Sixth Amendment to the U.S. Constitution doesn’t apply in non-criminal cases like the one presented in HMM, but PPO proceedings have significant liberty interests at stake.
“With the limited testimony and inability of the circuit court to see petitioner, the court did not have the ability to assess petitioner’s credibility fully,” Swartzle wrote. “Nor did respondent’s counsel have the opportunity to see petitioner testify and respond accordingly to her demeanor or credibility.”
Regarding the curtailing of cross examination, Swartzle said the respondent was deprived of due process.
“By depriving respondent of the opportunity to cross-examine petitioner about the alleged sexual assault, the circuit court increased the risk of erroneously depriving respondent of significant liberty interests,” Swartzle wrote. “Allowing respondent to cross-examine petitioner properly would have diminished that risk.”
The burden of proof issue was also a clear violation of due process doctrine, with Swartzle noting that the court impermissibly shifted that burden to the respondent.
“Petitioner provided some detail of the alleged assaults in her petition, but the procedure employed at the hearing did not permit the circuit court to consider the evidence properly, nor did the circuit court require petitioner to establish that she had been sexually assaulted or was in reasonable apprehension of sexual assault,” Swartzle wrote. “Instead, after respondent was denied the ability to cross-examine petitioner and elicit information on the allegations against him, the circuit court asked respondent for evidence and then denied respondent’s motion.”
Swartzle also ruled that the same judge would handle the new hearing because there was insufficient evidence that the judge could set aside her previous findings, and because there was no appearance of justice that required a different judge to preside over the matter.
