N.M. R. Civ. P. Dist. Ct. 1-093
N.M. R. Civ. P. Dist. Ct. 1-093
Committee commentary. - This rule applies to criminal contempt of court proceedings that arise from conduct occurring within a civil action in district court. This rule does not apply to civil contempt proceedings. Because a criminal contempt proceeding also can arise from conduct occurring within a criminal action, a similar rule exists in the Rules of Criminal Procedure for the District Courts. See Rule 5-112 NMRA.
New Mexico law classifies contempts of court as either civil or criminal. See Concha v. Sanchez, 2011-NMSC-031, & 24, 150 N.M. 268, 258 P.3d 1060. The classification of a contempt as civil or criminal does not depend on whether the contempt proceeding arises out of an underlying criminal action or civil action. Instead, the focus should be on the reason why the court is invoking its contempt powers. See id. Civil contempt sanctions are remedial and may be imposed as coercive measures to compel a person to comply with an order of the court or to enforce the rights of a private party to a lawsuit. See id. & 25; State ex rel. Bliss v. Greenwood, 1957-NMSC-071, & 6, 63 N.M. 156, 315 P.2d 223. A person held in civil contempt "carries the keys to his prison" and can end continuing contempt sanctions by complying with the court's orders. Concha, 2011-NMSC-031, & 25 (internal quotation marks and citation omitted). Criminal contempt sanctions are imposed to punish the contempt defendant for a completed act of contempt and to preserve the dignity and authority of the court. See Concha, 2011-NMSC-031, & 26; Greenwood, 1957-NMSC-071, & 6.
Whether a contempt proceeding is classified as criminal or civil will impact the procedures the court must follow. Because civil contempt sanctions are remedial and not intended to punish, the court may impose civil contempt sanctions "by honoring the most basic due process protections-in most cases, fair notice and an opportunity to be heard." Concha, 2011-NMSC-031, & 25. Criminal contempt, on the other hand, is a "crime in the ordinary sense; it is a violation of the law." Id. & 26. "A criminal contempt defendant is therefore entitled to due process protections of the criminal law, the specific nature of which will depend on whether the criminal contempt is categorized as direct or indirect." Id. A contempt proceeding can result in both civil and criminal contempt sanctions, see State v. Pothier, 1986-NMSC-039, && 4-6, 104 N.M. 363, 721 P.2d 1294 (recognizing that both civil and criminal sanctions can be imposed for contemptuous conduct), and this rule sets forth the procedures the court must follow if the court intends to pursue criminal contempt sanctions even if the court is also considering civil contempt sanctions.
The applicable procedures for a criminal contempt proceeding depend on whether the criminal contempt is direct or indirect. "Direct contempts are contemptuous acts committed in the presence of the court, while indirect contempts are such acts committed outside the presence of the court." Concha, 2011-NMSC-031, & 24. If the contemptuous conduct has occurred in court and the judge has personal knowledge, based on perceiving the conduct, of the facts establishing all elements of the contempt, the court may follow the summary procedures for direct criminal contempt set forth in Paragraph C of this rule. However, before holding a person in direct criminal contempt, the judge in most cases still must give such person a warning to stop engaging in contemptuous behavior and an opportunity to explain the behavior. See id. & 27 ("If feasible, even in summary proceedings for an act of direct contempt occurring in open court, an adequate opportunity to defend or explain one's conduct is a minimum requirement before imposition of punishment." (internal quotation marks and citation omitted)).
"When the judge has not personally witnessed the defendant's contemptuous behavior in the course of a court proceeding," the court must follow the Rules of Criminal Procedure for the District Courts and the procedures set forth in Paragraph D of this rule for indirect criminal contempt. See id. & 28. The court shall appoint the district attorney to prosecute the contempt charge. See NMSA 1978, § 36-1-18(A) (2001) ("Each district attorney shall . . . prosecute . . . for the state in all courts of record of the counties of his district all cases, criminal and civil, in which the state or any county in his district may be a party or may be interested."). In no case shall the court both serve as the prosecutor of the indirect contempt charge and preside as judge over the indirect contempt proceeding. See Rule 21-211(A)(2)(b) NMRA (providing that the "judge shall disqualify himself or herself in any proceeding" in which the judge is "acting as a lawyer").
The defendant may exercise a peremptory election to excuse the judge under Rule 5-106 NMRA. In addition, a judge may be required to recuse for cause in appropriate cases under Rule 5-106(G) NMRA. See State v. Stout, 1983-NMSC-094, & 12, 100 N.M. 472, 672 P.2d 645 (providing that a judge is precluded from presiding over a contempt proceeding if the "judge has become so embroiled in the controversy that he cannot fairly and objectively hear the case, or when he or one of his staff will necessarily be a witness in the proceeding").
If incarcerated, the contempt defendant is entitled to bail as provided by Rule 5-401 NMRA. The defendant has a right to assistance of counsel. And, if the defendant is indigent and the court contemplates the imposition of any sentence of imprisonment, the defendant is entitled to representation by an attorney at the state's expense. See NMSA 1978, § 31-15-10(C) ("The district public defender shall represent every person without counsel who is financially unable to obtain counsel and who is charged in any court within the district with any crime that carries a possible sentence of imprisonment."). In addition, the defendant may be entitled to a jury trial as provided by law. See, e.g., NMSA 1978, § 34-1-4(1965) ("In all proceedings in the district courts for indirect criminal contempt arising out of written publications made out of court, the contemnor shall have the right to a trial by jury."); In re Herkenhoff, 1997-NMSC-007, & 15, 122 N.M. 766, 931 P.2d 1382 ("If the punishment to be imposed is imprisonment for less than six months or a fine of less than $ 1000, . . . no jury trial is required.").
If the defendant is found guilty of direct or indirect criminal contempt, the judge must enter a judgment and sentence. An adjudication of guilt on a charge of criminal contempt constitutes a criminal conviction, which may result in collateral consequences and may have other implications for the defendant. The court may defer or suspend a criminal contempt sentence as permitted by law.
Whether the defendant is found guilty of direct or indirect criminal contempt, the defendant has a right to appeal under the rules governing appeals from district court in criminal cases. See N.M. Const. art. VI, § 2; NMSA 1978, § 39-3-3(A)(1) (1972); State v. Watson, 1971-NMCA-104, && 20-28, 82 N.M. 769, 487 P.2d 197. Under NMSA 1978, § 39-3-15(A) (1966), "In any case of criminal contempt, the taking of an appeal operates to stay execution of the judgment without bond."
[Adopted by Supreme Court Order No. 15-8300-020, effective for all cases pending or filed on or after December 31, 2015; suspended by Supreme Court Order No. 21-8300-032, effective November 22, 2021, until further order of the Court.]
ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-016, effective December 31, 2016, revised the process for initiating an indirect criminal contempt proceeding, and specified that the rule does not apply to individuals under the age of eighteen; in Paragraph A, after "shall not apply to any", deleted "minor alleged to have committed contemptuous conduct" and added "person who is less than eighteen years old"; and in Paragraph D, deleted Subparagraph D(1), relating to initiating an indirect criminal contempt proceeding by an order to show cause, and added a new Subparagraph D(1).