N.M. R. Civ. P. Magist. Ct. 2-110
N.M. R. Civ. P. Magist. Ct. 2-110
Committee commentary. - This rule applies to criminal contempt of court proceedings that arise from conduct occurring within a civil action in magistrate court. This rule does not apply to civil contempt proceedings, nor does it address the extent to which the magistrate court has the authority to impose sanctions for civil contempt of court. 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 Magistrate Courts. See Rule 6-111 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 v. Sanchez, 2011-NMSC-031, ¶ 24, 150 N.M. 268, 258 P.3d 1060. 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 Magistrate Courts and the procedures set forth in Paragraph D of this rule for indirect criminal contempt. See id. ¶ 28. The indirect criminal contempt may be prosecuted by the district attorney.
The defendant may exercise a peremptory election to excuse the judge under Rule 6-106 NMRA. In addition, a judge may be required to recuse for cause in appropriate cases under Rule 6-106(F) 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 6-401 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.").
Under NMSA 1978, § 35-8-1, a criminal contempt defendant in magistrate court is not entitled to a jury trial. Accordingly, the maximum sentence that a magistrate court may impose for a criminal contempt conviction is six months of imprisonment. See Taylor v. Hayes, 418 U.S. 488, 496 (1974) ("[A] State may choose to try any contempt without a jury if it determines not to impose a sentence longer than six months."); see also Int'l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826-27 (1994) (explaining that a criminal contempt defendant has a constitutional right to a jury trial if facing more than six months of imprisonment).
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. And, because criminal contempt is a crime in the ordinary sense, the court should assess and collect court costs on a criminal contempt conviction as set forth in NMSA 1978, Section 35-6-1.
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 magistrate court in criminal cases. See N.M. Const. art. VI, § 27; NMSA 1978, § 35-3-9; NMSA 1978, § 35-13-1; Rules 5-826, 6-703 NMRA. 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. 16-8300-016, effective for all cases pending or filed on or after December 31, 2016; 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, rewrote the rule establishing procedures to implement the inherent and statutory powers of the magistrate court to impose punitive sanctions for criminal contempt of court for conduct occurring within a civil action in magistrate court, specified that the rule does not apply to individuals under the age of eighteen, and added the committee commentary; in the heading, added "Criminal" prior to "contempt"; and deleted former Paragraphs A through D and added new Paragraphs A through F. The 1996 amendment, effective January 1, 1996, designated the existing provisions as Paragraph A and rewrote that paragraph, and added Paragraphs B through D.
For jurisdiction for contempt, see Section 35-3-9 NMSA 1978. For rules of procedure governing criminal actions in magistrate court, see Rule 6-101 NMRA et seq. Am. Jur. 2d, A.L.R. and C.J.S. references. - 17 Am. Jur. 2d Contempt §§ 52, 53. Misconduct of officers in selection or summoning of jurors or grand jurors as contempt of court, 7 A.L.R. 345. Assault as contempt of court, 18 A.L.R. 212, 55 A.L.R. 1230, 52 A.L.R.2d 1297. Forcing party or prosecuting witness to withdraw or not to institute action or proceeding as contempt of court, 23 A.L.R. 187. Communicating with grand jury as contempt, 29 A.L.R. 489. Affidavit to disqualify judge as contempt, 29 A.L.R. 1273. Criticism of attitude of the court or judge toward violations of liquor law as contempt, 58 A.L.R. 1001. Criticism of court's appointment of receiver as contempt, 97 A.L.R. 903. Refusal of attorney to disclose identity of, whereabouts of, or other information relating to, his client as contempt, 101 A.L.R. 470. Refusal or failure of clerk of court to comply with direction of court or judge upon ground of its invalidity or supposed invalidity as contempt, 119 A.L.R. 1380. Alteration, substitution, abstraction, withholding or destruction of pleadings and papers by attorneys as criminal contempt, 151 A.L.R. 750. Bail jumping after conviction, failure to surrender or to appear for sentencing, and the like, as contempt, 34 A.L.R.2d 1100. Assaulting, threatening or intimidating witness as contempt of court, 52 A.L.R.2d 1297. Published article or broadcast as direct contempt of court, 69 A.L.R.2d 676. Accused's right to, and prosecution's privilege against, disclosure of identity of informer, 76 A.L.R.2d 262. False or inaccurate report of judicial proceedings as contempt, 99 A.L.R.2d 440. Release of information concerning forthcoming or pending trial as ground for contempt proceedings or other disciplinary measures against member of the bar, 11 A.L.R.3d 1104. Effect of witness's violation of order of exclusion, 14 A.L.R.3d 16. Attack on judiciary as a whole as indirect contempt, 40 A.L.R.3d 1204. Mortgagor's interference with property subject to order of foreclosure and sale as contempt of court, 54 A.L.R.3d 1242. Picketing court or judge as contempt, 58 A.L.R.3d 1297. Assault on attorney as contempt, 61 A.L.R.3d 500. Addressing allegedly insulting remarks to court during course of trial as contempt, 68 A.L.R.3d 273. Conduct of attorney in connection with making objections or taking exceptions as contempt of court, 68 A.L.R.3d 314. Power of court to impose standard of personal appearance or attire, 73 A.L.R.3d 353. Contempt for violation of compromise and settlement the terms of which were approved by court but not incorporated in court order, decree or judgment, 84 A.L.R.3d 1047. Contempt based on violation of court order where another court has issued contrary order, 36 A.L.R.4th 978. Intoxication of witness or attorney as contempt of court, 46 A.L.R.4th 238. Contempt: state court's power to order indefinite coercive fine or imprisonment to exact promise of future compliance with court's order - anticipatory contempt, 81 A.L.R.4th 1008. Profane or obscene language by party, witness, or observer during trial proceedings as basis for contempt citation, 29 A.L.R.5th 702. Lack of notice to contemnor at time of contemptuous conduct of possible criminal contempt sanctions as affecting prosecution for contempt in federal court, 76 A.L.R. Fed. 797. 17 C.J.S. Contempt §§ 43 to 61.