N.M. R. Mun. Ct. P. 8-110
N.M. R. Mun. Ct. P. 8-110
Committee commentary. - This rule applies to criminal contempt of court proceedings that arise from conduct occurring in municipal court. This rule does not apply to civil contempt proceedings, nor does it address the extent to which the municipal court has the authority to impose sanctions for civil contempt of court.
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 Procedure for the Municipal 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 a municipal attorney.
A judge may be required to recuse in appropriate cases under Rule 8-106(B) 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 8-401 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.").
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. The court should assess and collect court costs as set forth in NMSA 1978, Section 35-14-11.
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 municipal court. See N.M. Const. art. VI, § 27; NMSA 1978, § 35-15-1(B); Rules 5-826, 8-703 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 municipal court to impose punitive sanctions for criminal contempt of court for conduct occurring in municipal 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, made stylistic changes in Paragraph A, deleted former Paragraph B relating to summary disposition and redesignated former Paragraph C as paragraph B, rewrote the introductory language of Paragraph B, added Subparagraph B(4), and rewrote the last paragraph in Paragraph B, and added Paragraphs C and D. Am. Jur. 2d, A.L.R. and C.J.S. references. - 17 Am. Jur. 2d Contempt § 1 et seq. Right to punish for contempt for failure to obey court order or decree either beyond power or jurisdiction of court or merely erroneous, 12 A.L.R.2d 1059. Disqualification of judge in proceedings to punish contempt against or involving himself or court of which he is a member, 64 A.L.R.2d 600, 37 A.L.R.4th 1004. Separate contempt punishments on successive refusals to respond to same or similar questions, 94 A.L.R.2d 1246. Appealability of contempt adjudication or conviction, 33 A.L.R.3d 448. Right to counsel in contempt proceedings, 52 A.L.R.3d 1002. Picketing court or judge as contempt, 58 A.L.R.3d 1297. Assault on attorney as contempt, 61 A.L.R.3d 500. Affidavit or motion for disqualification of judge as contempt, 70 A.L.R.3d 797. Power of court to impose standard of personal appearance or attire, 73 A.L.R.3d 353. 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. 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 § 1 et seq.