Kampf v. Kampf

• Court: Court of Appeal of Michigan
• Writing for the Court: FITZGERALD, J.
• Citation: Kampf v. Kampf, 603 N.W.2d 295, 237 Mich.App. 377 (Mich. App. 1999)
• Decision Date: 21 December 1999
• Docket Number: Docket No. 211191.
• Parties: Noelle M. KAMPF, Petitioner-Appellee, v. John E. KAMPF, Respondent-Appellant.

603 N.W.2d 295

237 Mich. App. 377

Noelle M. KAMPF, Petitioner-Appellee, v. John E. KAMPF, Respondent-Appellant.

Docket No. 211191.

Court of Appeals of Michigan.

Submitted June 2, 1999, at Lansing.

Decided August 31, 1999, at 9:05 a.m.

Released for Publication December 21, 1999.

Thomas J. Plachta, Mt. Pleasant, for the petitioner.

Ghazey H. Aleck, II, Clare, for the respondent.

Before: MARKEY, P.J., and McDONALD and FITZGERALD, JJ.

FITZGERALD, J.

Respondent John E. Kampf appeals as of right an order denying his motion to quash, suppress, rescind, or dismiss a personal protection order (PPO) obtained ex parte by his wife, petitioner Noelle Kampf, pursuant to M.C.L. § 600.2950(4) and (12); MSA 27A.2950(4) and (12). Respondent asserts that subsection 2950(12) is unconstitutional because it deprives him of his property rights and limits his right to liberty by subjecting him to the possibility of arrest and prosecution without notice or procedural safeguards. We affirm.¹ On December 12, 1997, Noelle Kampf petitioned the court to enter an ex parte PPO to restrain and enjoin respondent from entering onto the property where petitioner lived and worked, from assaulting petitioner, from stalking petitioner, and from threatening to kill or injure petitioner. Petitioner asserted that she was requesting the order because she feared that "immediate and irreparable injury, loss, or damage will occur between now and a hearing or because notice itself will cause irreparable injury, loss, or damage before the order can be entered."

Consistent with the provisions in M.C.L. § 600.2950(4)(a); MSA 27A.2950(4)(a), petitioner attached a two-page narrative to her petition explaining why she believed she needed a PPO. In the statement she recalled several instances of emotional and physical abuse and controlling behavior by respondent. She noted that respondent called her "filthy" names, humiliated her, denied her "access" to money, and required her to return home immediately after her classes ended in order to control her. She described an occasion in 1994 when respondent came home in the afternoon as she was feeding her two small children and began to fondle her in front of them. When she rebuffed him, she claimed, respondent pulled her so forcefully that she held onto the sink to resist him, but he eventually dragged her by her legs through the house to the bedroom where he had sex with her. She also recalled an incident on September 9, 1997, when respondent had sex with her in a "very insensitive and rough" manner, which left her bruised, bleeding, and in pain. Petitioner claimed that respondent had sex with her two days later despite the fact that she was crying from the pain of her recent injuries. She also said that on October 21, 1997, respondent became enraged that she was sleeping, so he began screaming that she was a "lazy asshole" and a "bitch" before he "yanked" her out of bed and pushed her out of the bedroom. She claimed that he bruised her arm in this incident and continued to be verbally and emotionally abusive for the next few days. In conclusion, petitioner told the court that it was "depressing" for her to see respondent and that because he was "manipulative" and "sarcastic" she wanted to limit her contact with him other than making "brief contact as required regarding [their] children."

On the basis of petitioner's allegations, the court granted the petition and issued a three-year PPO on December 12, 1997. In addition to granting petitioner's specific requests for no contact, the court order prohibited respondent from contacting petitioner by telephone and from purchasing or possessing firearms. The record indicates that petitioner served a copy of the PPO on respondent by certified United States mail on December 23, 1997. However, respondent's motion to quash the PPO indicates that he became aware of the PPO on December 19, 1997.

Respondent's motion to quash did not challenge the truthfulness of petitioner's allegations of abuse. Instead, respondent argued that M.C.L. § 600.2950(12); MSA 27A.2950(12), which permits issuance of an ex parte PPO, is unconstitutional because it deprives him of his property rights and limits his right to liberty by subjecting him to the possibility of arrest and prosecution without notice or procedural safeguards.

In her answer to respondent's motion to quash, petitioner factually supplemented the statement she had attached to the PPO petition. She provided documentation of three times she had stayed at a domestic violence shelter, a more detailed and extensive narrative statement regarding abuse by respondent, and photographs of bruises that respondent allegedly caused. The trial court denied respondent's motion to quash the PPO in a written ruling after the parties stipulated the waiver of oral arguments. The trial court reasoned that respondent's property rights must yield to petitioner's concern for safety, that the PPO statute provides a sufficient number of procedural safeguards for an ex parte application, and that a PPO furthers an important governmental interest in preventing crime and improving public safety. On appeal, respondent challenges the trial court's conclusion that the PPO statute, and hence the PPO against him, are constitutional. This Court reviews constitutional issues de novo as questions of law. Mahaffey v. Attorney General, 222 Mich.App. 325, 334, 564 N.W.2d 104 (1997).

The federal and Michigan constitutions guarantee that the state cannot deny people "life, liberty, or property without due process of law." U.S. Const., Am. XIV; Const. 1963, art. 1, § 17. Due process, which is similarly defined under both constitutions, Palmer v. Bloomfield Hills Bd. of Ed., 164 Mich.App. 573, 576, 417 N.W.2d 505 (1987), specifically enforces the rights enumerated in the Bill of Rights, and it also provides for substantive and procedural due process. Daniels v. Williams, 474 U.S. 327, 337, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Procedural due process limits actions by the government and requires it to institute safeguards in proceedings that affect those rights protected by due process, such as life, liberty, or property. See Electro-Tech, Inc. v. HF Campbell Co., 433 Mich. 57, 66, n. 9, 445 N.W.2d 61 (1989); Dow v. Michigan, 396 Mich. 192, 202, 240 N.W.2d 450 (1976).

A statute is presumed constitutional unless the contrary is plainly evident. People v. Hubbard (After Remand), 217 Mich.App. 459, 483-484, 552 N.W.2d 493 (1996). Respondent, as the party who is challenging the constitutionality of the PPO statute, bears the burden of showing this clear unconstitutionality. Brown v. Siang, 107 Mich.App. 91, 97, 309 N.W.2d 575 (1981). "If the statute can be construed in a manner consistent with the constitution, the party alleging unconstitutionality has failed to meet that burden." Id.

A. Enforcing enumerated rights

In his motion to quash, respondent asserted that the PPO statute and orders issued under its authority violated numerous rights specifically mentioned in the federal or Michigan constitutions. On appeal, respondent argues only that the statute unconstitutionally prohibits him from "purchas[ing] or possess[ing] a firearm which eliminates the possibility of hunting or other sporting events...." Respondent's firearm argument appears to invoke the right to bear arms under the Michigan Constitution.² Although "[e]very person has a right to keep and bear arms for the defense of himself and the state," Const. 1963, art. 1, § 6, the Michigan Constitution does not protect the right to bear arms in the context of sport or recreation. Cf. People v. Swint, 225 Mich.App 353, 362, 572 N.W.2d 666 (1997).³

B. Procedural due process

Respondent contends that subsection 12 violates the due process guarantee of notice and an opportunity to be heard. People v. Pitts, 222 Mich.App. 260, 263, 564 N.W.2d 93 (1997). We disagree. There is no procedural due process defect in obtaining an emergency order of protection without notice to a respondent when the petition for the emergency protection order is supported by affidavits that demonstrate exigent circumstances justifying entry of an emergency order without prior notice, see, e.g., Mitchell v. WT Grant, 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), and where there are appropriate provisions for notice and an opportunity to be heard after the order is issued. See id.; Gargagliano v. Secretary of State, 62 Mich.App. 1, 11, 233 N.W.2d 159 (1975). Here, subsection 12 permits a court to issue an ex parte order only if

it clearly appears from specific facts shown by verified complaint, written motion, or affidavit that immediate and irreparable injury, loss, or damage will result from the delay required to effectuate notice or that the notice will itself precipitate adverse action before a personal protection order can be issued. [Emphasis added.]

Further, M.C.L. § 600.2950(13); MSA 27A.2950(13) gives a respondent the right to bring a motion to rescind a PPO within fourteen days of being served with notice or receiving actual notice of the PPO, and M.C.L. § 600.2950(14); MSA 27A.2950(14) requires the court to schedule a hearing on the motion within five or fourteen days, depending on whether the PPO enjoins the respondent from purchasing and possessing a firearm. Clearly, the procedural safeguards employed under the statute are sufficient to meet respondent's due process challenge.

Respondent contends, nonetheless, that the notice requirement is insufficient because one restrained by an ex parte PPO could be arrested for violating a PPO without ever knowing that the PPO had been issued.⁴ However, the Legislature appreciated this very dilemma between an effective date and notice to a respondent and crafted subsection 22 to resolve the conflict. Subsection 22 provides in pertinent part:

If the individual restrained or enjoined has not received notice

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