Mich. Ct. R. 3.722
Mich. Ct. R. 3.722
Staff Comment (ADM File No. 2023-24): The amendments adopt new rules MCR 3.715-3.722 to implement procedures for handling extreme risk protection order actions.
See Extreme Risk Protection Order Act, MCL 691.1801 et seq.
The staff comment is not an authoritative construction by the Court. In addition, adoption of a new rule or amendment in no way reflects a substantive determination by this Court.
CLEMENT, C.J. (concurring). I concur with the Court's adoption of the proposed extreme risk protection order (ERPO) court rules, but write separately to address inconsistent legal terminology used throughout the Extreme Risk Protection Order Act (the Act). MCL 691.1805(3) requires an individual to file "a summons and complaint" to initiate an ERPO action. Civil actions are commenced by filing a complaint with the court, and the parties are respectively referred to as the "plaintiff" and "defendant." See MCL 600.1901 et seq. However, complaints are used to set forth specific allegations against defendants and inform them of the claims against which they are being called on to defend. MCR 2.111(A) and (B). Defendants, in turn, are generally required to file responsive pleadings addressing the plaintiff's allegations and setting forth any legal or equitable defenses. MCR 2.111(C) and (F).
On the other hand, a "petition" is "a formal written request presented to a court or other official body." Black's Law Dictionary (11th ed). The individual requesting a petition is the "petitioner," whereas the party against whom the petition is filed is the "respondent." The Act appears to conflate these legal concepts, requiring a complaint to initiate an ERPO action but referring to the parties as the petitioner and the respondent.
The nature of ERPO actions is consistent with that of a petition-not a complaint-and I therefore encourage the Legislature to amend the Act to clarify that actions should be initiated by filing a petition with the court. This is the same approach used in personal protection actions under MCL 600.2950 and MCL 600.2950a, which are initiated by filing a petition. The rules we adopt today use the term "complaint" to be consistent with the language of the Act. However, we have defined the term to clarify that a complaint, in the context of ERPO actions, means the act of petitioning the court to issue an order.
ZAHRA, J., would decline to adopt these amendments.
VIVIANO, J. (dissenting). I dissent from the Court's adoption of these rules intended to implement the Extreme Risk Protection Order Act (the ERPO Act), MCL 691.1801 et seq. The ERPO Act sets forth elaborate procedures for the issuance and service of extreme risk protection orders, along with procedures designed to ensure compliance with such orders once they are issued. The act has many procedural flaws and raises serious constitutional concerns. While the rules adopted today attempt to implement the statutory directives and fill in some of the gaps, in my view they only exacerbate the constitutional problems.
The most significant constitutional problem is presented by MCL 691.1807(8), the anticipatory search warrant provision in the ERPO Act, and MCR 3.718(C), the rule adopted today to implement it. MCL 691.1807(8) provides that if a court issues an extreme risk protection order and orders the firearms immediately surrendered, the court
shall also issue an anticipatory search warrant, subject to and contingent on the failure or refusal of the restrained individual, following the service of the order, to immediately comply with the order and immediately surrender to a law enforcement officer any firearm or concealed pistol license in the individual's possession or control, authorizing a law enforcement agency to search the location or locations where the firearm, or firearms, or concealed pistol license is believed to be and to seize any firearm or concealed pistol license discovered during the search in compliance with 1966 PA 189, MCL 780.651 to 780.659.
Because this provision does not mention probable cause, it may be read as requiring issuance of an anticipatory search warrant even without a probable cause determination. However, although the provision was clumsily drafted, a better reading of it-and one that would avoid any constitutional infirmities-is that a search warrant may only be issued "in compliance with" our state's laws governing the issuance of search warrants, i.e., "1966 PA 189, MCL 780.651 to 780.659." The rule adopted today appears to follow this view. See MCR 3.718(C) ("If the affidavit establishes probable cause to believe the location or locations to be searched are places where the firearm(s) or concealed pistol license is believed to be, the court must issue the anticipatory search warrant.").
In other words, MCL 691.1807(8) should be read so that the phrase requiring compliance with 1966 PA 189 governs the issuance of an anticipatory search warrant, not just the latter phrase in which it appears regarding the authority of a law enforcement agency to conduct a search. The Legislature appears to have omitted a comma before the word "in," which would have made this interpretation flow more naturally. This reading is supported by the fact that the other two times 1966 PA 189 is mentioned in the act, it is mentioned in connection with the issuance of a search warrant. See MCL 600.1810(4) and (5).
However, while MCL 691.1807(8) may not be facially unconstitutional, it does not adequately spell out the additional probable cause findings required for anticipatory search warrants, as distinct from ordinary, run-of-the-mill search warrants. An "anticipatory search warrant" is "a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place." LaFave, 2 Search & Seizure (6th ed), § 3.7(c). In United States v Grubbs, 547 US 90, 96-97 (2006), the Supreme Court held that anticipatory search warrants are not categorically unconstitutional. However, the Court held that they are only permissible if the issuing court makes two specific findings of probable cause: "It must be true not only that if the triggering condition occurs 'there is a fair probability that contraband or evidence of a crime will be found in a particular place,' but also that there is probable cause to believe the triggering condition will occur." Id. (citations omitted). For an anticipatory search warrant sought under MCL 691.1807(8), the "triggering condition" is explicitly set forth in the statute-the respondent's refusal to immediately comply with the order. Therefore, to ensure compliance with the Fourth Amendment as interpreted by Grubbs, before issuing an anticipatory search warrant under the ERPO Act, the court must find that the affidavit establishes (1) probable cause to believe that if the respondent refuses to immediately comply with the order, there is a fair probability that the respondent's firearm(s) or concealed pistol license will be found in the location or locations to be searched, and (2) probable cause that the respondent will refuse to immediately comply with the order. The rule adopted today confusingly omits this second required finding, and it will likely result in the issuance and execution of anticipatory search warrants that violate the Fourth Amendment. Since the United States Constitution trumps our court rule, trial judges should carefully adhere to the Fourth Amendment and make the requisite probable cause findings, even if our rule omits one of them.
Indeed, rather than skirting the constitutional requirements for anticipatory search warrants, I believe the rule should have additional safeguards to protect against unreasonable searches and seizures. In particular, the rule should require that anticipatory search warrants specify the "condition placed by the issuing magistrate on the authorization to search," i.e. the "triggering condition." Grubbs, 547 US at 100 (Souter, J., concurring in part and concurring in the judgment). While the Grubbs majority found that this was not required by the Fourth Amendment, other jurisdictions have nonetheless required anticipatory search warrants to specify the triggering condition. See, e.g., State v Curtis, 139 Haw 486, 497-499 (2017). This appears to be the practice followed by the federal district courts, since the federal form for anticipatory search warrants includes a section directing the issuing judge to specify the triggering condition. Justice Souter explained the rationale for this added safeguard as follows:
See United States Courts, Anticipatory Search and Seizure Warrant, Form AO 93B (revised November 2013), available at <https://www.uscourts.gov/sites/default/files/ao093b.pdf (accessed February 2, 2024) [https://perma.cc/E8GH-Q27Y].
An issuing magistrate's failure to mention that condition can lead to several untoward consequences with constitutional significance. To begin with, a warrant that fails to tell the truth about what a magistrate authorized cannot inform the police officer's responsibility to respect the limits of authorization, a failing as suming real significance when the warrant is not executed by the official who applied for it and happens to know the unstated condition....
Nor does an incomplete anticipatory warrant address an owner's interest in an accurate statement of the government's authority to search property. [Id. at 100-101 (Souter, J., concurring in part and concurring in the judgment) (citation omitted).]
Because I agree that this is the better practice, and even though it is omitted from the present rule, I would encourage trial judges to require anticipatory search warrants to state the triggering condition and to further state that the warrant may not be executed unless the triggering condition has occurred. See generally United States v Brack, 188 F3d 748, 757 (CA 7, 1999) (explaining that the "purpose of the requirement that warrants conditioned on future events be narrowly drawn is to avoid premature execution as a result of manipulation or misunderstanding by the police").
The rules adopted today create another significant constitutional infirmity by eliminating the compliance hearing required by MCL 691.1810(4) and, instead, delegating to the clerk of the court the duty of determining whether a respondent has complied with the filing requirements following issuance of an extreme risk protection order. See MCR 3.719(D)(2) ("The clerk of the court must review the proof of service filed with the court and determine whether the respondent has complied with the filing requirements of subrule (D)(1)."). This is significant because a finding of noncompliance results either in the issuance of a bench warrant or an order to show cause to initiate contempt proceedings and may also result in the issuance of a search warrant. See MCR 3.719(D)(2)(b). This raises serious due process concerns. See Sabbe v Wayne Co, 322 Mich 501, 503 (1948) ("We have held that the duties and functions of county clerks are purely ministerial and that judicial functions cannot be performed by court clerks, nor may the power to do so be conferred upon them."); see also Toms v Jeffries, 237 Mich 413, 416-417 (1927) (holding that the clerk may sign a warrant nunc pro tunc, but only after the judge makes a probable cause finding).
I believe the rules adopted today unnecessarily risk violations of our citizens' due process rights and right to be protected against unreasonable searches and seizures. This Court should show more concern for the constitutional rights of our citizens than these rules demonstrate. Rather than rush to adopt these rules before the act's effective date, I would take more time to address the constitutional issues noted above. For these reasons, I respectfully dissent.