(a) If the judge determines that there are reasonable grounds to believe that the respondent will not appear at the hearing and that any further delay in the proceeding would present an immediate danger to the physical well-being of the respondent, the court may issue a warrant for the apprehension and appearance of the respondent.
(b) If the court does not issue a warrant pursuant to Rule 3(a), the court shall cause a summons and a copy of the petition to be served on the respondent in the manner provided in G.L, c. 276, § 25 . Following such service, if the respondent fails to appear at the time summoned, the court may issue a warrant for the apprehension and appearance of the respondent. The issuance of such a warrant shall not require a determination of immediate danger to the physical well-being of the respondent.
(c) The judge shall determine how long the warrant shall be effective, but shall not make any warrant effective for more than five business days. A warrant issued under this rule shall provide that it may be executed only when the respondent may be presented immediately after apprehension before a judge pursuant to Rule 4 or Rule 10.
(d) If the judge determines that the case should be heard in another Division or Department, because of the respondent's age or location or for other good reason, the judge may, in the exercise of discretion, make the warrant or summons returnable to an appropriate court in another Division or Department. The clerk shall notify the return court of the warrant or summons and transmit the papers listed in Rule 10(a) to the return court.
July 22, 2015, effective February 1, 2016; amended July 20, 2016, effective September 6, 2016.
(2016) General Laws c. 123, § 35 was amended in 2016 by An Act Relative to Substance Use, Treatment, Education, and Prevention, St. 2016, c. 52, § 40 . This amendment provides that “the warrant shall continue day after day for up to 5 consecutive days, excluding Saturdays, Sundays and legal holidays, or until such time as the person is presented to the court, whichever is sooner; provided, however that an arrest on such warrant shall not be made unless the person may be presented immediately before a judge.” The act was effective March 14, 2016.
(2015) The standard for a warrant in Rule 3(a) is taken directly from G.L. c. 123, § 35 , ¶ 3. It is important to note that immediate danger to the physical well-being of the respondent is a statutory prerequisite for issuing a warrant of apprehension at the time of the petition.
The last sentence in Rule 3(b) is based on the fact that a finding of "immediate danger" is not a statutory prerequisite for the issuance of a warrant after a respondent has failed to appear on a summons.
Rule 3(c) provides that the judge must determine how long a warrant of apprehension may be effective, but must choose a length of time no longer than three business days. Because of the emergency nature of section 35 petitions, the information supporting the petition is likely to become stale with the passage of time. The judge should make the warrant effective for a period of time less than three business days if the nature of the petition suggests that the information will become stale sooner than that. If the warrant expires without the respondent's apprehension, the petitioner would be able to initiate a new petition after providing fresh information or confirming the continued need for apprehension.
The provisions of Rule 3(d) balance the advisability of having section 35 petitions adjudicated by courts accustomed to determining the rights of persons the age of the respondent and the need for prompt disposition of any section 35 petition. Accordingly, when the respondent is present and no warrant or summons is necessary, the court should adjudicate the petition regardless of the age of the respondent to avoid the delays and possible loss of the respondent's presence that moving the proceeding would cause. Similarly, requiring the initial review and the determination whether to issue a warrant or a summons to be conducted by the court in which the petitioner files avoids unnecessary delays and risks. By contrast, issuing a warrant or summons returnable to another Department does not pose the same risks. Whether to do so in a particular case is a matter entrusted to the judge's discretion. It may be prudent for a Juvenile Court to retain a case involving a young adult or other person with whom the court has experience.
Similarly, a judge may decide that the filing court is a poor venue to adjudicate the petition because the respondent is expected to be located far from the court or because witnesses and information might be available in a different venue, such as one that contains the respondent's school or place of employment. In such cases, the judge may choose to make the warrant or summons returnable to the preferred venue.