REPORT TITLE:
Restraining/Protective Orders


DESCRIPTION:
Consolidates laws on restraining and protective orders and
provides procedures on issuance of orders, form of petition,
temporary restraining orders, duration of restraining orders,
protective orders, service of order, enforcement and penalties.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
HOUSE OF REPRESENTATIVES                H.B. NO.604        
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO RESTRAINING AND PROTECTIVE ORDERS.


BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  The Hawaii Revised Statutes is amended by adding
 
 2 a new chapter to title 38 to be appropriately designated and to
 
 3 read as follows:
 
 4                             "CHAPTER
 
 5                 RESTRAINING AND PROTECTIVE ORDERS
 
 6      �   -1  Issuable by whom.  The circuit courts, including
 
 7 family courts and the district courts may issue temporary
 
 8 restraining orders and protective orders to prevent contact
 
 9 interference, abuse, threats, harassment, or property damage.
 
10 Nothing in this chapter shall be construed to prohibit
 
11 constitutionally protected activity.
 
12      �   -2  Form of petition.  A petition for relief under this
 
13 chapter shall be made in writing upon forms provided by the court
 
14 and shall be accompanied by an affidavit made under oath or a
 
15 statement made under penalty of perjury stating the specific
 
16 facts and circumstances from which relief is sought, and shall
 
17 allege facts sufficient to establish one or more of the
 
18 following:
 
19      (1)  There are reasonable grounds to believe that a party to
 

 
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                                     H.B. NO.604        
                                                        
                                                        

 
 1           a civil, criminal, or administrative action may inflict
 
 2           physical abuse upon, harass, or threaten by words or
 
 3           conduct, another party;
 
 4      (2)  There are reasonable grounds to believe that a past act
 
 5           or acts of physical abuse may have occurred, or that
 
 6           the threat of physical abuse makes it probable that
 
 7           acts of abuse may be imminent;
 
 8      (3)  There are reasonable grounds to believe that a past act
 
 9           or acts of harassment may have occurred, or that
 
10           threats of harassment make it probable that acts of
 
11           harassment may be imminent;
 
12      (4)  There are reasonable grounds to believe that a past act
 
13           or acts of extreme psychological abuse may have
 
14           occurred, or that threats of extreme psychological
 
15           abuse make it probable that acts of extreme
 
16           psychological abuse may be imminent; or
 
17      (5)  There are reasonable grounds to believe that a past act
 
18           or acts of malicious property damage may have occurred,
 
19           or that threats of malicious property damage make it
 
20           probable that acts of malicious property damage may be
 
21           imminent.
 
22      A petitioner's right to apply for relief under this chapter
 

 
 
 
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                                     H.B. NO.604        
                                                        
                                                        

 
 1 shall not be affected by the petitioner's leaving the residence
 
 2 or household to avoid contact, interference, abuse, threats,
 
 3 harassment, or property damage.
 
 4      �   -3  Temporary restraining order.  Upon a finding of
 
 5 probable cause that sufficient facts exist to satisfy the
 
 6 requirements of section    -2, the court may issue a temporary
 
 7 restraining order without notice, and the order shall describe in
 
 8 reasonable detail the act or acts sought to be restrained.  The
 
 9 order may be issued either in writing or orally, provided that
 
10 oral orders shall be made only where the person or persons being
 
11 restrained are present in court and shall be reduced to writing
 
12 by the close of the next court day following oral issuance.  The
 
13 order shall restrain the respondent or the person or persons
 
14 named in the petition from performing any combination of the
 
15 following acts:
 
16      (1)  Contacting, threatening, harassing, or physically
 
17           abusing the petitioner;
 
18      (2)  Contacting, threatening, harassing, or physically
 
19           abusing the petitioner's family or household members,
 
20           or any person residing at the petitioner's residence;
 
21      (3)  Remaining in the same household or residence;
 
22      (4)  Telephoning the petitioner;
 

 
 
 
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 1      (5)  Entering or visiting the petitioner's residence;
 
 2      (6)  Interfering with the physical, legal, foster, or
 
 3           permanent custody of a minor child; or
 
 4      (7)  Contacting, threatening, harassing, or physically
 
 5           abusing the petitioner at work.
 
 6      The order may also restrain the agents, servants, employees,
 
 7 attorneys, or other persons in active concert or participation
 
 8 with the respondent or the person or persons named in the
 
 9 petition.
 
10      �   -4  Duration of restraining order.  (a)  A temporary
 
11 restraining order shall be effective as of the date of signing
 
12 and filing; provided that if a temporary restraining order is
 
13 granted orally in the presence of all the parties and the court
 
14 determines that each of the parties understands the order and its
 
15 conditions, if any, then the order shall be effective as of the
 
16 date it is orally stated on the record by the court until further
 
17 order of the court.
 
18      (b)  A restraining order issued pursuant to this chapter
 
19 shall remain in effect at the discretion of the court, for a
 
20 period not to exceed ninety days from the date the order is
 
21 granted.
 
22      (c)  On the earliest date that the business of the court
 

 
 
 
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                                     H.B. NO.604        
                                                        
                                                        

 
 1 will permit, but no later than fifteen days from the date the
 
 2 temporary restraining order is granted, the court, after giving
 
 3 due notice to all parties, shall hold a hearing upon the petition
 
 4 requiring cause to be shown why the order should not continue.
 
 5 In the event that service has not been effected, the court may
 
 6 set a new date for the hearing; provided that the date shall not
 
 7 exceed ninety days from the date the temporary restraining order
 
 8 was granted.  All parties shall be present at the hearing and may
 
 9 be represented by counsel.  The parties named in the petition may
 
10 file responses explaining, excusing, justifying, or denying the
 
11 alleged act or acts which form the basis of the petition.
 
12      �   -5  Protective order; additional orders.(a)  If after
 
13 hearing all relevant evidence, the court finds that the
 
14 respondent has failed to show cause why the temporary restraining
 
15 order should not be continued and that a protective order is
 
16 necessary, the court may order that a protective order be issued
 
17 for such further period as the court deems appropriate, not to
 
18 exceed three years from the date the protective order is granted.
 
19      (b)  A protective order may be extended for a period not to
 
20 exceed three years from the expiration of the preceding
 
21 protective order.  Upon application by petitioner, the court
 
22 shall hold a hearing to determine whether the protective order
 

 
 
 
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                                     H.B. NO.604        
                                                        
                                                        

 
 1 should be extended.  In making a determination, the court shall
 
 2 consider evidence of acts or conduct that occurred prior to the
 
 3 initial restraining order and whether good cause exists to extend
 
 4 the protective order.  The court may terminate the protective
 
 5 order or extended protective order at any time with the mutual
 
 6 consent of the parties.
 
 7      (c)  The protective order and any extended protective orders
 
 8 may include all orders stated in the preceding restraining or
 
 9 protective order, and may provide such further relief as the
 
10 court deems necessary to prevent contact, interference, abuse,
 
11 threats, harassment, or property damage.  The protective order
 
12 and any extended protective order may also include orders to
 
13 either or both parties to participate in treatment, counseling,
 
14 or domestic violence intervention services.  With respect to
 
15 minor children, the protective order may also include further
 
16 relief with respect to temporary visitation or custody.
 
17      �   -6  Service of order; enforcement.(a)  Any order
 
18 issued under this chapter shall either be personally served upon
 
19 the respondent, or served by certified mail, unless the
 
20 respondent was present at the hearing in which case the
 
21 respondent may be served by handing the respondent a filed copy
 
22 of the order after the hearing.  A filed copy of each order
 

 
 
 
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                                     H.B. NO.604        
                                                        
                                                        

 
 1 issued under the chapter shall be served by regular mail upon the
 
 2 chief of police of each county.
 
 3      (b)  When an order is issued under this chapter, the court
 
 4 may order the police department to serve the order and related
 
 5 documents upon respondent and to accompany the petitioner and
 
 6 assist in placing the petitioner in possession of a dwelling,
 
 7 residence, or personal belongings.
 
 8      (c)  Any law enforcement officer shall enforce a restraining
 
 9 or protective order issued pursuant to this chapter, including
 
10 lawfully ordering the restrained party to voluntarily leave for a
 
11 three-hour cooling off period, or, with or without a warrant,
 
12 where the law enforcement officer has reasonable grounds to
 
13 believe that the restrained party has violated a restraining or
 
14 protective order, arresting the restrained party.
 
15      �   -7  Penalties.  A knowing or intentional violation of a
 
16 restraining order or protective order issued under this chapter
 
17 is a misdemeanor.  The court shall sentence a violator to
 
18 appropriate counseling and shall sentence a person convicted
 
19 under this chapter as follows:
 
20      (1)  For a first conviction, the person shall serve a
 
21           mandatory minimum jail sentence of forty-eight hours
 
22           and be fined not less than $150 nor more than $500;
 

 
 
 
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                                     H.B. NO.604        
                                                        
                                                        

 
 1           provided that the court shall not sentence a defendant
 
 2           to pay a fine unless the defendant is or will be able
 
 3           to pay the fine; and
 
 4      (2)  For the second and any subsequent conviction, the
 
 5           person shall serve a mandatory minimum jail sentence of
 
 6           thirty days and be fined not less than $250 nor more
 
 7           than $1,000; provided that the court shall not sentence
 
 8           a defendant to pay a fine unless the defendant is or
 
 9           will be able to pay the fine.
 
10      Upon conviction and sentencing of the defendant, the court
 
11 shall order that the defendant be immediately incarcerated to
 
12 serve the mandatory minimum sentence imposed; provided that the
 
13 defendant may be admitted to bail pending appeal pursuant to
 
14 chapter 804.  The court may stay the imposition of the sentence
 
15 if special circumstances exist.
 
16      The court may suspend any jail sentence, except for the
 
17 mandatory sentences under paragraphs (1) and (2), upon condition
 
18 that the defendant remain alcohol and drug-free, conviction-free,
 
19 or complete court-ordered assessments or intervention.  Nothing
 
20 in this section shall be construed as limiting the discretion of
 
21 the judge to impose additional sanctions authorized in sentencing
 
22 for a misdemeanor.  The court may also grant the prevailing party
 

 
 
 
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                                     H.B. NO.604        
                                                        
                                                        

 
 1 in a petition brought under this chapter, costs and fees,
 
 2 including attorney's fees."
 
 3      SECTION 2.  Section 134-7, Hawaii Revised Statutes, is
 
 4 amended by amending subsection (f) to read as follows:
 
 5      "(f)  No person who has been restrained pursuant to an order
 
 6 of any court, including an ex parte order as provided for
 
 7 [herein,] in this subsection, from contacting, threatening, or
 
 8 physically abusing any person, shall possess or control any
 
 9 firearm or ammunition therefor, so long as the protective order
 
10 or any extension thereof is in effect, unless the order, for good
 
11 cause shown, specifically permits the possession of a firearm and
 
12 ammunition.  The restraining order or order of protection shall
 
13 specifically include a statement that possession or control of a
 
14 firearm or ammunition by the person named in the order is
 
15 prohibited.  Such person shall relinquish possession and control
 
16 of any firearm and ammunition owned by that person to the police
 
17 department of the appropriate county for safekeeping for the
 
18 duration of the order or extension thereof.  In the case of an ex
 
19 parte order, the affidavit or statement under oath [which] that
 
20 forms the basis for the order shall contain a statement of the
 
21 facts [which] that support a finding that the person to be
 
22 restrained owns, intends to obtain, or possesses a firearm, and
 

 
 
 
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                                     H.B. NO.604        
                                                        
                                                        

 
 1 that the firearm may be used to threaten, injure, or abuse any
 
 2 person.  The ex parte order shall be effective upon service
 
 3 pursuant to [section 586-6.] chapter    .  At the time of service
 
 4 of a restraining order involving firearms and ammunition issued
 
 5 by any court, the police officer may take custody of any and all
 
 6 firearms and ammunition in plain sight, those discovered pursuant
 
 7 to a consensual search, and those firearms surrendered by the
 
 8 person restrained.  If the person restrained is the registered
 
 9 owner of a firearm and knows the location of the firearm but
 
10 refuses to surrender the firearm or refuses to disclose the
 
11 location of the firearm, the person restrained shall be guilty of
 
12 a misdemeanor.  In any case, when a police officer is unable to
 
13 locate the firearms and ammunition either registered under this
 
14 chapter or known to the person granted protection by the court,
 
15 the police officer shall apply to the court for a search warrant
 
16 pursuant to chapter 803 for the limited purpose of seizing the
 
17 firearm and ammunition."
 
18      SECTION 3.  Section 134-7, Hawaii Revised Statutes, as
 
19 amended by Act 189, Session Laws of Hawaii 1995, and Act 133,
 
20 Session Laws of Hawaii 1998, is amended by amending subsection
 
21 (f) to read as follows:
 
22      "(f)  No person who has been restrained pursuant to an order
 

 
 
 
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                                     H.B. NO.604        
                                                        
                                                        

 
 1 of any court, including an ex parte order as provided for
 
 2 [herein,] in this subsection, from contacting, threatening, or
 
 3 physically abusing any person, shall possess or control any
 
 4 firearm or ammunition therefor, so long as the protective order
 
 5 or any extension thereof is in effect, unless the order, for good
 
 6 cause shown, specifically permits the possession of a firearm and
 
 7 ammunition.  The restraining order or order of protection shall
 
 8 specifically include a statement that possession or control of a
 
 9 firearm or ammunition by the person named in the order is
 
10 prohibited.  Such person shall relinquish possession and control
 
11 of any firearm and ammunition owned by that person to the police
 
12 department of the appropriate county for safekeeping for the
 
13 duration of the order or extension thereof.  In the case of an ex
 
14 parte order, the affidavit or statement under oath [which] that
 
15 forms the basis for the order shall contain a statement of the
 
16 facts [which] that support a finding that the person to be
 
17 restrained owns, intends to obtain, or possesses a firearm, and
 
18 that the firearm may be used to threaten, injure, or abuse any
 
19 person.  The ex parte order shall be effective upon service
 
20 pursuant to [section 586-6.] chapter    .  At the time of service
 
21 of a restraining order involving firearms and ammunition issued
 
22 by any court, the police officer may take custody of any and all
 

 
 
 
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                                     H.B. NO.604        
                                                        
                                                        

 
 1 firearms and ammunition in plain sight, those discovered pursuant
 
 2 to a consensual search, and those firearms surrendered by the
 
 3 person restrained.  If the person restrained is the registered
 
 4 owner of a firearm and knows the location of the firearm but
 
 5 refuses to surrender the firearm or refuses to disclose the
 
 6 location of the firearm, the person restrained shall be guilty of
 
 7 a misdemeanor.  In any case, when a police officer is unable to
 
 8 locate the firearms and ammunition either registered under this
 
 9 chapter or known to the person granted protection by the court,
 
10 the police officer shall apply to the court for a search warrant
 
11 pursuant to chapter 803 for the limited purpose of seizing the
 
12 firearm and ammunition."
 
13      SECTION 4.  Section 580-10, Hawaii Revised Statutes, is
 
14 amended by amending subsection (d) to read as follows:
 
15      "(d)  Whenever it is made to appear to the court after the
 
16 filing of any complaint, that there are reasonable grounds to
 
17 believe that a party thereto may inflict physical abuse upon,
 
18 threaten by words or conduct, or harass the other party, the
 
19 court may issue a restraining order [to prevent such physical
 
20 abuse, threats, or harassment, and shall enjoy in respect thereof
 
21 the powers pertaining to a court of equity.  Where necessary, the
 
22 order may require either or both of the parties involved to leave
 

 
 
 
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                                     H.B. NO.604        
                                                        
                                                        

 
 1 the marital residence during the period of the order, and may
 
 2 also restrain the party to whom it is directed from contacting,
 
 3 threatening, or physically abusing the children or other relative
 
 4 of the spouse who may be residing with that spouse at the time of
 
 5 the granting of the restraining order.  The order may also
 
 6 restrain a party's agents, servants, employees, attorneys, or
 
 7 other persons in active concert or participation with the
 
 8 respective party.
 
 9      (1)  A knowing or intentional violation of a restraining
 
10           order issued pursuant to this section is a misdemeanor.
 
11           The court shall sentence a violator to appropriate
 
12           counseling and shall sentence a person convicted under
 
13           this section as follows:
 
14           (A)  For a first conviction for violation of the
 
15                restraining order the person shall serve a
 
16                mandatory minimum jail sentence of forty-eight
 
17                hours;
 
18           (B)  For the second and any subsequent conviction for
 
19                violation of the restraining order the person
 
20                shall serve a mandatory minimum jail sentence of
 
21                thirty days.
 
22           The court may suspend any jail sentence, except for the
 

 
 
 
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                                     H.B. NO.604        
                                                        
                                                        

 
 1           mandatory sentences under subparagraphs (A) and (B),
 
 2           upon appropriate conditions such as that the defendant
 
 3           remain alcohol and drug-free, conviction-free or
 
 4           complete court-ordered assessments or counseling.
 
 5           Nothing in this section shall be construed as limiting
 
 6           the discretion of the judge to impose additional
 
 7           sanctions authorized in sentencing for a misdemeanor
 
 8           offense.  All remedies for the enforcement of
 
 9           judgments, equitable as well as legal, including civil
 
10           contempt, shall apply to this section.
 
11      (2)  Any law enforcement officer shall enforce a restraining
 
12           order issued pursuant to this subsection, including
 
13           lawfully ordering the restrained party to voluntarily
 
14           leave for a three-hour cooling off period, or, with or
 
15           without a warrant, where the law enforcement officer
 
16           has reasonable grounds to believe that the restrained
 
17           party has violated the restraining order, arresting the
 
18           restrained party.] as provided in chapter     ."
 
19      SECTION 5. Section 586-3, Hawaii Revised Statutes, is
 
20 amended by amending subsection (c) to read as follows:
 
21      "(c)  A petition for relief shall[:  be in writing and upon
 
22 forms provided by the court; allege that a past act or acts of
 

 
 
 
Page 15                                                    
                                     H.B. NO.604        
                                                        
                                                        

 
 1 abuse may have occurred, that the threats of abuse make it
 
 2 probable that acts of abuse may be imminent, or that extreme
 
 3 psychological abuse or malicious property damage is imminent; and
 
 4 be accompanied by an affidavit made under oath or a statement
 
 5 made under penalty of perjury stating the specific facts and
 
 6 circumstances from which relief is sought.] be made in accordance
 
 7 with chapter     ."
 
 8      SECTION 6.  Section 586-4, Hawaii Revised Statutes, is
 
 9 amended to read as follows:
 
10      "�586-4 Temporary restraining order.(a)  Upon petition to
 
11 a family court judge, a temporary restraining order may be
 
12 granted without notice to restrain either or both parties from
 
13 contacting, threatening, or physically abusing each other,
 
14 notwithstanding that a complaint for annulment, divorce, or
 
15 separation has not been filed.  The order may be granted to any
 
16 person who, at the time such order is granted, is a family or
 
17 household member as defined in section 586-1 or who filed a
 
18 petition on behalf of a family or household member.  [The order
 
19 shall enjoin the respondent or person to be restrained from
 
20 performing any combination of the following acts:
 
21      (1)  Contacting, threatening, or physically abusing the
 
22           petitioner;
 

 
 
 
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                                     H.B. NO.604        
                                                        
                                                        

 
 1      (2)  Contacting, threatening, or physically abusing any
 
 2           person residing at the petitioner's residence;
 
 3      (3)  Telephoning the petitioner;
 
 4      (4)  Entering or visiting the petitioner's residence; or
 
 5      (5)  Contacting, threatening, or physically abusing the
 
 6           petitioner at work.
 
 7      (b)  The family court judge may issue the ex parte temporary
 
 8 restraining order orally, if the person being restrained is
 
 9 present in court.  The order shall state that there is probable
 
10 cause to believe that a past act or acts of abuse have occurred,
 
11 or that threats of abuse make it probable that acts of abuse may
 
12 be imminent.  The order further shall state that the temporary
 
13 restraining order is necessary for the purpose of preventing acts
 
14 of abuse or preventing a recurrence of actual domestic abuse, and
 
15 assuring a period of separation of the parties involved.  The
 
16 order shall describe in reasonable detail the act or acts sought
 
17 to be restrained.  Where necessary, the order may require either
 
18 or both of the parties involved to leave the premises during the
 
19 period of the order, and also may restrain the party or parties
 
20 to whom it is directed from contacting, threatening, or
 
21 physically abusing the applicant's family or household members.
 
22 The order shall not only be binding upon the parties to the
 

 
 
 
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                                     H.B. NO.604        
                                                        
                                                        

 
 1 action, but also upon their officers, agents, servants,
 
 2 employees, attorneys, or any other persons in active concert or
 
 3 participation with them.  The order shall enjoin the respondent
 
 4 or person to be restrained from performing any combination of the
 
 5 following acts:
 
 6      (1)  Contacting, threatening, or physically abusing the
 
 7           petitioner;
 
 8      (2)  Contacting, threatening, or physically abusing any
 
 9           person residing at the petitioner's residence;
 
10      (3)  Telephoning the petitioner;
 
11      (4)  Entering or visiting the petitioner's residence; or
 
12      (5)  Contacting, threatening, or physically abusing the
 
13           petitioner at work.
 
14      (c)  When a temporary restraining order is granted pursuant
 
15 to this chapter and the respondent or person to be restrained
 
16 knows of the order, violation of the restraining order is a
 
17 misdemeanor.  A person convicted under this section shall undergo
 
18 domestic violence intervention at any available domestic violence
 
19 program as ordered by the court.  The court additionally shall
 
20 sentence a person convicted under this section as follows:
 
21      (1)  For a first conviction for violation of the temporary
 
22           restraining order, the person shall serve a mandatory
 

 
 
 
Page 18                                                    
                                     H.B. NO.604        
                                                        
                                                        

 
 1           minimum jail sentence of forty-eight hours and be fined
 
 2           not less than $150 nor more than $500; provided that
 
 3           the court shall not sentence a defendant to pay a fine
 
 4           unless the defendant is or will be able to pay the
 
 5           fine; and
 
 6      (2)  For the second and any subsequent conviction for
 
 7           violation of the temporary restraining order, the
 
 8           person shall serve a mandatory minimum jail sentence of
 
 9           thirty days and be fined not less than $250 nor more
 
10           than $1,000; provided that the court shall not sentence
 
11           a defendant to pay a fine unless the defendant is or
 
12           will be able to pay the fine.  Upon conviction and
 
13           sentencing of the defendant, the court shall order that
 
14           the defendant immediately be incarcerated to serve the
 
15           mandatory minimum sentence imposed; provided that the
 
16           defendant may be admitted to bail pending appeal
 
17           pursuant to chapter 804.  The court may stay the
 
18           imposition of the sentence if special circumstances
 
19           exist.
 
20      The court may suspend any jail sentence, except for the
 
21 mandatory sentences under paragraphs (1) and (2), upon condition
 
22 that the defendant remain alcohol and drug-free, conviction-free,
 

 
 
 
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                                     H.B. NO.604        
                                                        
                                                        

 
 1 or complete court-ordered assessments or intervention.  Nothing
 
 2 in this section shall be construed as limiting the discretion of
 
 3 the judge to impose additional sanctions authorized in sentencing
 
 4 for a misdemeanor.
 
 5      (d)  Any fines collected pursuant to subsection (c) shall be
 
 6 deposited into the spouse and child abuse special account
 
 7 established under section 601-3.6.]  The petition shall be filed
 
 8 in accordance with chapter     ."
 
 9      SECTION 7.  Section 587-52, Hawaii Revised Statutes, is
 
10 amended to read as follows:
 
11      "�587-52  Order of protection.  [(a)]  After a petition has
 
12 been filed with the court under this chapter, the court[, upon
 
13 such hearing as the court deems to be appropriate,] may make an
 
14 order of protection[.  Such an order may include, but need not be
 
15 limited to, a requirement that a party:
 
16      (1)  Stay away from the family home, a school, or any other
 
17           place or location which is deemed by the court to
 
18           present an opportunity for contact between the parties
 
19           themselves, or with other persons, which contact would
 
20           not be in the best interests of the child;
 
21      (2)  Abstain from physically or verbally contacting,
 
22           threatening, or abusing any party or person;
 

 
 
 
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                                     H.B. NO.604        
                                                        
                                                        

 
 1      (3)  Not permit the child to be removed from a certain
 
 2           location;
 
 3      (4)  Not to interfere with the physical, legal, foster, or
 
 4           permanent custody of the child; and
 
 5      (5)  Report any violation of an order of protection to the
 
 6           appropriate law enforcement authorities and other
 
 7           authorized agencies.
 
 8      (b)  The parties may release copies of an order of
 
 9 protection to appropriate law enforcement authorities.] pursuant
 
10 to chapter      ."
 
11      SECTION 8.  Section 604-10.5, Hawaii Revised Statutes, is
 
12 amended to read as follows:
 
13      "�604-10.5  Power to enjoin and temporarily restrain
 
14 harassment.(a)  For the purposes of this section:
 
15      "Course of conduct" means a pattern of conduct composed of a
 
16 series of acts over any period of time evidencing a continuity of
 
17 purpose.
 
18      "Harassment" means:
 
19      (1)  Physical harm, bodily injury, assault, or the threat of
 
20           imminent physical harm, bodily injury, or assault; or
 
21      (2)  An intentional or knowing course of conduct directed at
 
22           an individual that seriously alarms or disturbs
 

 
 
 
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                                     H.B. NO.604        
                                                        
                                                        

 
 1           consistently or continually bothers the individual, and
 
 2           that serves no legitimate purpose; provided that such
 
 3           course of conduct would cause a reasonable person to
 
 4           suffer emotional distress.
 
 5      (b)  The district courts shall have power to enjoin or
 
 6 prohibit or temporarily restrain harassment.
 
 7      (c)  Any person who has been subjected to harassment may
 
 8 petition the district court of the district in which the
 
 9 petitioner resides for a temporary restraining order and an
 
10 injunction from further harassment.
 
11      (d)  A petition for relief from harassment shall be in
 
12 [writing and shall allege that a recent past act or acts of
 
13 harassment may have occurred, or that threats of harassment make
 
14 it probable that acts of harassment may be imminent; and shall be
 
15 accompanied by an affidavit made under oath or statement made
 
16 under penalty of perjury stating the specific facts and
 
17 circumstances from which relief is sought.] accordance with
 
18 chapter     .
 
19      [(e)  Upon petition to a district court under this section,
 
20 the court may temporarily restrain for a period of fifteen days,
 
21 persons named in the petition from harassing the petitioner if
 
22 the alleged harassment has caused the petitioner substantial
 

 
 
 
Page 22                                                    
                                     H.B. NO.604        
                                                        
                                                        

 
 1 emotional distress.  The court may issue an ex parte temporary
 
 2 restraining order either in writing or orally, provided that oral
 
 3 orders shall be reduced to writing by the close of the next court
 
 4 day following oral issuance.
 
 5      (f)  A hearing on the petition to enjoin harassment shall be
 
 6 held within fifteen days after it is filed.  The parties named in
 
 7 the petition may file responses explaining, excusing, justifying,
 
 8 or denying the alleged act or acts of harassment.  The court
 
 9 shall receive such evidence as is relevant at the hearing, and
 
10 may make independent inquiry.
 
11      If the court finds by clear and convincing evidence that
 
12 harassment as defined in paragraph (1) of that definition exists,
 
13 it may enjoin for no more than three years further harassment of
 
14 the petitioner, or that harassment as defined in paragraph (2) of
 
15 that definition exists, it shall enjoin for no more than three
 
16 years further harassment of the petitioner; provided that this
 
17 paragraph shall not prohibit the court from issuing other
 
18 injunctions against the named parties even if the time to which
 
19 the injunction applies exceeds a total of three years.
 
20      Any order issued under this subsection shall be served by
 
21 regular mail upon the chief of police of each county.
 
22      (g)  The court may grant the prevailing party in an action
 

 
 
 
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                                     H.B. NO.604        
                                                        
                                                        

 
 1 brought under this section, costs and fees, including attorney's
 
 2 fees.
 
 3      (h)  A knowing or intentional violation of a restraining
 
 4 order or injunction issued pursuant to this section is a
 
 5 misdemeanor.  The court shall sentence a violator to appropriate
 
 6 counseling and shall sentence a person convicted under this
 
 7 section as follows:
 
 8      (1)  For a violation of an injunction or restraining order
 
 9           that occurs after a conviction for a violation of the
 
10           same injunction or restraining order, a violator shall
 
11           be sentenced to a mandatory minimum jail sentence of
 
12           not less than forty-eight hours; and
 
13      (2)  For any subsequent violation that occurs after a second
 
14           conviction for violation of the same injunction or
 
15           restraining order, the person shall be sentenced to a
 
16           mandatory minimum jail sentence of not less than thirty
 
17           days.
 
18      The court may suspend any jail sentence, except for the
 
19 mandatory sentences under paragraphs (1) and (2), upon
 
20 appropriate conditions, such as that the defendant remain alcohol
 
21 and drug-free, conviction-free, or complete court-ordered
 
22 assessments or counseling.  The court may suspend the mandatory
 

 
 
 
Page 24                                                    
                                     H.B. NO.604        
                                                        
                                                        

 
 1 sentences under paragraphs (1) and (2) where the violation of the
 
 2 injunction or restraining order does not involve violence or the
 
 3 threat of violence.  Nothing in this section shall be construed
 
 4 as limiting the discretion of the judge to impose additional
 
 5 sanctions authorized in sentencing for a misdemeanor offense.
 
 6      (i)  Nothing in this section shall be construed to prohibit
 
 7 constitutionally protected activity.]"
 
 8      SECTION 9.  Section 586-5, Hawaii Revised Statutes, is
 
 9 repealed.
 
10      ["�586-5 Period of order; hearing.(a)  A temporary
 
11 restraining order granted pursuant to this chapter shall remain
 
12 in effect at the discretion of the court, for a period not to
 
13 exceed ninety days from the date the order is granted.
 
14      (b)  On the earliest date that the business of the court
 
15 will permit, but no later than fifteen days from the date the
 
16 temporary restraining order is granted, the court, after giving
 
17 due notice to all parties, shall hold a hearing on the
 
18 application requiring cause to be shown why the order should not
 
19 continue.  In the event that service has not been effected, the
 
20 court may set a new date for the hearing; provided that the date
 
21 shall not exceed ninety days from the date the temporary
 
22 restraining order was granted.  All parties shall be present at
 

 
 
 
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 1 the hearing and may be represented by counsel.
 
 2      The protective order may include all orders stated in the
 
 3 temporary restraining order and may provide further relief, as
 
 4 the court deems necessary to prevent domestic abuse or a
 
 5 recurrence of abuse, including orders establishing temporary
 
 6 visitation with regard to minor children of the parties and
 
 7 orders to either or both parties to participate in domestic
 
 8 violence intervention."]
 
 9      SECTION 10.  Section 586-5.5, Hawaii Revised Statutes, is
 
10 repealed.
 
11      ["�586-5.5  Protective order; additional orders.(a)  If
 
12 after hearing all relevant evidence, the court finds that the
 
13 respondent has failed to show cause why the order should not be
 
14 continued and that a protective order is necessary to prevent
 
15 domestic abuse or a recurrence of abuse, the court may order that
 
16 a protective order be issued for such further period as the court
 
17 deems appropriate, not to exceed three years from the date the
 
18 protective order is granted.
 
19      The protective order may include all orders stated in the
 
20 temporary restraining order and may provide for further relief as
 
21 the court deems necessary to prevent domestic abuse or a
 
22 recurrence of abuse, including orders establishing temporary
 

 
 
 
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                                     H.B. NO.604        
                                                        
                                                        

 
 1 visitation and custody with regard to minor children of the
 
 2 parties and orders to either or both parties to participate in
 
 3 domestic violence intervention services.  If the court finds that
 
 4 the party meets the requirements under section 334-59(a)(2), the
 
 5 court further may order that the party be taken to the nearest
 
 6 facility for emergency examination and treatment.
 
 7      (b)  A protective order may be extended for a period not to
 
 8 exceed three years from the expiration of the preceding
 
 9 protective order.  Upon application by a person or agency capable
 
10 of petitioning under section 586-3, the court shall hold a
 
11 hearing to determine whether the protective order should be
 
12 extended.  In making a determination, the court shall consider
 
13 evidence of abuse and threats of abuse that occurred prior to the
 
14 initial restraining order and whether good cause exists to extend
 
15 the protective order.
 
16      The extended protective order may include all orders stated
 
17 in the preceding restraining order and may provide such further
 
18 relief as the court deems necessary to prevent domestic abuse or
 
19 a recurrence of abuse, including orders establishing temporary
 
20 visitation and custody with regard to minor children of the
 
21 parties and orders to either or both parties to participate in
 
22 domestic violence intervention services.  The court may terminate
 

 
 
 
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                                     H.B. NO.604        
                                                        
                                                        

 
 1 the extended protective order at any time with the mutual consent
 
 2 of the parties."]
 
 3      SECTION 11.  Section 586-5.6, Hawaii Revised Statutes, is
 
 4 repealed.
 
 5      ["�586-5.6  Effective date.  The temporary restraining order
 
 6 shall be effective as of the date of signing and filing; provided
 
 7 that if a temporary restraining order is granted orally in the
 
 8 presence of all the parties and the court determines that each of
 
 9 the parties understands the order and its conditions, if any,
 
10 then the order shall be effective as of the date it is orally
 
11 stated on the record by the court until further order of the
 
12 court.  Protective orders orally stated by the court on the
 
13 record shall be effective as of the date of the hearing until
 
14 further order of the court; provided that all oral protective
 
15 orders shall be reduced to writing and issued forthwith.  The
 
16 judiciary shall provide forms which will enable the court to
 
17 issue all temporary restraining orders forthwith."]
 
18      SECTION 12.  Section 586-6, Hawaii Revised Statutes, is
 
19 repealed.
 
20      ["�586-6 Notice of order.  Any order issued under this
 
21 chapter shall either be personally served upon the respondent, or
 
22 served by certified mail, unless the respondent was present at
 

 
 
 
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 1 the hearing in which case the respondent shall be deemed to have
 
 2 notice of the order.  A filed copy of each order issued under
 
 3 this chapter shall be served by regular mail upon the chief of
 
 4 police of each county."]
 
 5      SECTION 13.  Section 586-7, Hawaii Revised Statutes, is
 
 6 repealed.
 
 7      ["[ �586-7]  Assistance of police in service or execution.
 
 8 When an order is issued under this chapter upon request of the
 
 9 petitioner, the court may order the police department to serve
 
10 the order and related documents upon respondent and to accompany
 
11 the petitioner and assist in placing the petitioner in possession
 
12 of the dwelling or residence."]
 
13      SECTION 14.  Section 586-8, Hawaii Revised Statutes, is
 
14 repealed.
 
15      ["[�586-8]  Right to apply for relief.(a)  A person's
 
16 right to apply for relief shall not be affected by the person's
 
17 leaving the residence or household to avoid abuse. 
 
18      (b)  The court shall not require security or bond of any
 
19 party unless it deems [it] necessary in exceptional cases."]
 
20      SECTION 15.  Statutory material to be repealed is bracketed.
 
21 New statutory material is underscored.
 

 
 
 
 
 
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 1      SECTION 16.  This Act shall take effect July 1, 1999.
 
 2 
 
 3                           INTRODUCED BY:  _______________________