N.M. R. Crim. P. Metro. Ct. 7-111
N.M. R. Crim. P. Metro. Ct. 7-111
Committee commentary. - This rule applies to criminal contempt of court proceedings that arise from conduct occurring within a criminal action in metropolitan court. This rule does not apply to civil contempt proceedings, nor does it address the extent to which the metropolitan court may have the authority to impose sanctions for civil contempt of court. Because a criminal contempt proceeding also can arise from conduct occurring within a civil action, a similar rule exists in the Rules of Civil Procedure for the Metropolitan Courts. See Rule 3-110 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 Metropolitan 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 7-106 NMRA. In addition, a judge may be required to recuse for cause in appropriate cases under Rule 7-106(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 7-401 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 this rule, the maximum sentence that the metropolitan court may impose for a criminal contempt conviction is six months of imprisonment. Accordingly, the defendant does not have a constitutional right to a jury trial. 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). The defendant may, however, have a statutory right to demand a jury trial if the potential penalty exceeds ninety days of imprisonment. See NMSA 1978, § 34-8A-5(1981) (jury trial in metropolitan court).
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 metropolitan court in criminal cases. See N.M. Const. art. VI, § 27; NMSA 1978, § 34-8A-6; NMSA 1978, § 35-3-9; Rules 5-827, 7-703 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."
[As amended 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 metropolitan court to impose punitive sanctions for criminal contempt of court for conduct occurring in metropolitan court, specified that the rule does not apply to individuals under the age of eighteen, and rewrote 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, made stylistic changes in Paragraph A; redesignated former Paragraphs B and C as Paragraphs C and B, respectively; in Paragraph B, rewrote the introductory language, added Subparagraph (4), and rewrote the last paragraph; in Paragraph C, rewrote the paragraph heading, inserted "direct" near the beginning and made stylistic changes; and added Paragraph D. Scope of authority to punish for contempt. - Because the power to punish for contempt is an inherent power of the court, the court should be allowed to exercise its power to the limits of its authority and should not be bound by Section 35-3-9 NMSA 1978, which limits sentencing to three days. State v. Jones, 1987-NMCA-004, 105 N.M. 465, 734 P.2d 243. Am. Jur. 2d, A.L.R. and C.J.S. references. - 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. 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.