Rule 5-112. Punitive contempt.

A. Scope. This rule establishes procedures to implement the inherent and statutory powers of the court to impose punitive sanctions for criminal/punitive contempt of court. This rule shall not apply to the imposition of other sanctions specifically authorized by these rules, statute, or the common law, or to the imposition of remedial sanctions for civil/remedial contempt of court. This rule shall not apply to any person who is less than eighteen years old. B. Definitions. (1) “Contempt” or “contemptuous conduct” includes but is not limited to (a) disorderly conduct, insolent behavior, or a breach of peace, noise, or other disturbance, if this behavior actually obstructs or hinders the administration of justice or tends to diminish the court’s authority; (b) misconduct of court officers in official transactions; or (c) disobedience of any lawful order, rule, or process of the court. (2) “Direct contempt” means contemptuous conduct committed in the immediate presence of the court that is personally observed by the judge. (3) “Indirect contempt” means contemptuous conduct that occurs outside the presence of the court, or conduct that is not personally observed by the judge and requires further fact finding. (4) “Punitive sanction” means a sentence imposed to punish a person for committing an act of punitive contempt and may include a reprimand or unconditional fine or unconditional sentence of imprisonment. C. Direct punitive contempt. A direct punitive contempt may be punished summarily at the time of the contempt without further evidentiary proceedings. If the judge determines that direct punitive contempt could warrant a penalty of over six (6) months incarceration, the penalty shall not be imposed summarily. (1) Summarily-imposed punishment. Except in cases of flagrant contemptuous conduct, before summarily punishing a person for direct punitive contempt, the judge shall give the person a warning, either orally or in writing, to no longer engage in the contemptuous behavior and shall give the person an opportunity to explain the conduct. When the judge summarily punishes a contempt defendant for direct punitive contempt, the judge shall forthwith sign and file with the clerk a written order, which shall constitute a judgment and sentence, certifying (a) the specific facts establishing the direct contempt beyond a reasonable doubt; (b) that the judge personally observed the contemptuous conduct committed in the presence of the judge without the need for further fact finding; and (c) the punishment, which was summarily imposed after an opportunity for allocution. (2) Non-summarily-imposed punishment. If the judge determines that a penalty of a serious fine or a penalty of over six (6) months incarceration could be warranted, the contemnor is entitled to a jury trial in accordance with the procedures of Subparagraph (D)(2) of this rule. D. Disposition of indirect punitive contempt on notice and hearing. Indirect punitive contempt shall be punished only after notice and hearing in accordance with this paragraph. (1) Order to Show Cause. The court may issue an Order to Show Cause to allow the alleged contemnor to appear before the court to be advised of the contemptuous act and to be given an opportunity to explain the contemptuous conduct. The court may then dismiss the alleged conduct without formal proceedings, enter into an informal agreement with stipulated conditions to address the conduct, or pursue formal contempt charges as directed in Subparagraph (D)(2) of this rule. Any statements or admissions made in the hearing on the Order to Show Cause shall not be used against the alleged contemnor in any formal contempt proceedings. (2) Formal contempt proceedings. (a) Criminal complaint. To initiate a formal contempt proceeding, the judge shall file a criminal complaint under Rule 5-201 NMRA, which shall be served with a summons as set forth in Rule 5-209 NMRA. Only when proper service cannot be accomplished or is inappropriate under the circumstances may the court issue a warrant for the contemnor’s arrest. The complaint shall include the essential facts alleging the contemptuous conduct in violation of NMSA 1978, Section 34-1-2. The complaint shall be treated the same as an information or indictment for procedural purposes. (b) Appointing a prosecutor. The court shall request that the contempt be prosecuted by the district attorney, unless the interest of justice requires the appointment of another attorney. If the district attorney declines the request, the court must appoint another attorney to prosecute the contempt. (c) Rules of Criminal Procedure. A formal charge of indirect punitive contempt or non-summarily imposed direct punitive contempt shall be prosecuted in accordance with this rule and the Rules of Criminal Procedure for the District Courts to the extent that those rules are not inconsistent with this rule. (d) Judgment and sentence. If the contempt defendant is found guilty of punitive contempt, the court shall enter a judgment and sentence. E Penalties. A petty fine and/or incarceration for no more than six (6) months may be imposed after a hearing without a jury. To penalize a contemnor for more than these penalties, the matter must be tried by a jury unless the contemnor has waived the right to a jury. The sentence for contempt may be deferred or suspended, in whole or in part, with a period of probation, and reasonable conditions of probation that relate to the contemptuous conduct may be imposed. F. Docketing. Any punitive contempt proceeding commenced under this rule shall be docketed as a separate criminal matter with a new case number. G. Appeal. Any person found guilty of punitive contempt may appeal under the Rules of Appellate Procedure governing appeals from the district court in criminal cases.