Rule 42 Contempt Proceedings

Committee Advisory Note [December 2014]

The Rule mirrors the content of Rule 42 of the Maine Rules of Criminal Procedure.

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Committee Note—1994

[M.R. Crim. P. 42.] See Advisory Committee Note to M.R. Crim. P. 5(b), February 15, 1994 amendment.

Advisory Committee Note—1997

[M.R. Crim. P. 42.] The provisions of M.R. Crim. P. 42 are deleted and replaced. Identical procedures in the Civil (M.R. Civ. P. 66) and Criminal rules (M.R. Crim. P. 42) are now provided that will clarify present confusion about contempt and provide a road map applicable to all contempt proceedings.

Subdivision (a) is intended to make the rule applicable to a contempt proceeding unless the imposition of sanctions is specifically covered by rule or specific statutory provisions. For example, the rule does not apply to the specific sanctions found in other provisions of the Civil and Criminal rules. See, e.g., M.R. Civ. P. 11, 37, 76(f); M.R. Crim. P. 16(d), 16A(d). Nor does it apply to a statutory provision such as 17-A M.R.S. § 1304 (1983 & Supp. 1995). Paragraph (3) assures that the proceeding will follow the correct procedural path, according to whether the contempt occurred in or outside the presence of the court and whether punitive or remedial sanctions are sought.

Subdivision (b) provides a summary procedure for contempt occurring in open court and actually seen or heard by the judge or justice. Both punitive and remedial sanctions may be sought in the same summary proceeding for such a contempt. In the court’s discretion, plenary proceedings under subdivision (c) or (d) may be used for in-court contempt. Sanctions must be proportionate to the offense. State v. Alexander, 257 A.2d 788 (Me. 1969). There is no right to jury trial. State v. Spickler, 637 A.2d 857 (Me. 1994). The alleged contemnor may be heard through counsel if counsel is present.

Subdivision (c) provides for a plenary proceeding when punitive sanctions are sought. Remedial sanctions may be imposed in the same proceeding. Jury trial is provided if the court expects to seriously consider imposing a punitive sanction of a serious punitive fine or imprisonment in excess of 30 days upon adjudication of contempt. The language “serious punitive fine” is taken from United Mine Workers v. Bagwell, 512 U.S. 821, 837-

39 (1994), which used it to describe the constitutional trigger for the right to jury trial. That Court, in holding that a $52,000,000 fine against the labor union was “unquestionably . . . a serious contempt sanction,” found it unnecessary to “answer . . . the difficult question where the line between petty and serious contempt fines should be drawn.” Id. at 837, n.5. However, it did point out that in Muniz v. Hoffman, 422 U.S. 454, 477 (1975) it had held that a fine of $10,000 imposed on a union was insufficient to trigger the Sixth Amendment right to a jury trial and also cited to “18 U.S.C. § 1(3) (defining petty offenses as crimes ‘the penalty for which . . . does not exceed imprisonment for a period of six months or a fine of not more than $5,000 for an individual and $10,000 for a person other than an individual, or both’)” as additional source material supporting the proposition. Id. The Court’s reference to the current language of 18 U.S.C. § 1(3) serves to at least suggest what “magnitude of contempt fine” constitutes a serious punitive fine. Id. The potential imposition of a punitive sanction of up to 30 days imprisonment does not trigger the right to a jury trial under the United States Constitution. Bloom v. Illinois, 391 U.S. 184 (1968). Nor would such potential imposition trigger a jury trial right under the common law. Id. at 196. See also Eilenbecker v. District Court of Plymouth County, 134 U.S. 31, 36-39 (1890). Although the issue was left open in State v. Sklar, 317 A.2d 160, 171 n.11 (Me. 1974), the Maine Constitution, like that of its mother Commonwealth, presumably accords no jury trial right. See generally, Root v. MacDonald, 157 N.E. 684, 691 (Mass. 1927); Miaskiewicz v. Commonwealth, 402 N.E.2d 1036 (Mass. 1980). An alleged contemnor has the right to retained or appointed counsel as provided in Rule 44 of the Maine Rules of Criminal Procedure. Proof that the alleged contemnor has acted “intentionally, knowingly or recklessly” satisfies the state of mind element.

Subdivision (d) provides a plenary proceeding for remedial sanctions for contempt, designed either to coerce obedience to an order of the court or to compensate a party injured by disobedience. Remedial sanctions may also be awarded for in-court contempt under subdivision (b) or in conjunction with punitive sanctions under subdivision (c). The procedure is consistent with 14 M.R.S. §§ 252 and 3136 (Supp. 1995). There is no right to trial by jury in proceedings for remedial sanctions. City of Rockland v. Winchenbaugh, 667 A.2d 602, 604 (Me. 1995). The standard of proof is that of clear and convincing evidence. This is consistent with the standard in all the federal circuits, see, e.g., Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 16 (1st Cir. 1991), and with the Law Court’s decision in Small v. Small, 413 A.2d 1318, 1325, n.7 (Me.

1980). The opportunity to purge gives the imprisoned contemnor “the keys to his freedom.” Slauenwhite v. Slauenwhite, 679 A.2d 93, 94 (Me. 1996). See also Bagwell, 512 U.S. 821 at 828-29.

Advisory Committee Note—1998

[M.R. Crim. P. 42(b)(5).] The amendment reflects the new appellate enabling legislation expressly providing for an appeal in summary contempt proceedings involving punitive sanctions, accompanied or unaccompanied by remedial sanctions, by an aggrieved contemnor—namely, 15 M.R.S. § 2115- B(1). See P.L. 1997, ch. 317, § B-1; L.D. 1490 Summary at pages 3-4 (118th Legis. 1997). An aggrieved contemnor must first appeal to the Superior Court acting as an intermediate appellate court if the summary proceeding is before a judge of the District Court, Probate Court or Administrative Court and, if unsuccessful, to the Law Court. If the summary proceeding is before a Superior Court or Supreme Court Justice, an aggrieved contemnor’s appeal is to the Law Court.

[M.R. Crim. P. 42(b)(6).] This new paragraph (6) is added to highlight the new Maine Bail Code provisions specifically addressing bail in the context of a summary contempt proceeding involving a punitive sanction. See P.L. 1997, ch. 317, § A-1; L.D. 1490 Summary at pages 2-3 (118th Legis. 1997). Bail in such a proceeding is wholly within the discretion of the court. See 15 M.R.S. §§ 1004 and 1103.

[M.R. Crim. P. 42(c)(3).] The amendment modifies paragraph 3 of subdivision (c) in three particulars. First, a new first sentence is added to subdivision (c). That sentence expressly addresses the preconditions for punitive-sanction imposition relating to acts of commission. It provides that in order to impose a punitive sanction for an act or acts of commission a court must find beyond a reasonable doubt both the prohibited affirmative conduct constituting the contempt and the accompanying requisite alternative culpable mental state (“intentionally, knowingly or recklessly”). Second, the final sentence of subdivision (c) is amended to uniquely address the precondition for punitive-sanction imposition relating to acts of omission (“failure or refusal to act”). It provides that in order to impose a punitive sanction for a failure or refusal to perform an act or acts required by court order, a court must find beyond a reasonable doubt that prohibited omission, the accompanying requisite alternative culpable mental state (“intentionally, knowingly or recklessly”) and an “ability” on the part of the alleged contemnor “to perform the required act.” Third, a number of formalistic changes have been made to this same final sentence of subdivision (c) to enhance its clarity.

[M.R. Crim. P. 42(c)(5).] The amendment reflects the new appellate enabling legislation expressly providing for an appeal in plenary contempt proceedings involving punitive sanctions, accompanied or unaccompanied by remedial sanctions, by an aggrieved contemnor—namely, 15 M.R.S. § 2115- B(2). See P.L. 1997, ch. 317, § B-1; L.D. 1490 Summary at page 4 (118th Legis. 1997). If trial is other than in the Superior Court or the Supreme Judicial Court, an aggrieved contemnor must first appeal to the Superior Court acting as an intermediate appellate court and, if unsuccessful, to the Law Court. If trial is in the Superior Court or the Supreme Judicial Court, an aggrieved contemnor’s appeal is to the Law Court.

[M.R. Crim. P. 42(c)(6).] This new paragraph (6) is added to highlight the new Bail Code provision specifically addressing bail in the context of a plenary contempt proceeding involving a punitive sanction. See P.L. 1997, ch. 317, § A-1; L.D. 1490 Summary at pages 2-3 (118th Legis. 1997). The Bail Code applies fully in such a proceeding. See 15 M.R.S. § 1004.

[M.R. Crim. P. 42 (d)(2)(D)(i) and (ii).] The amendment corrects a drafting error by conditioning the imposition of a remedial sanction relative to either acts of commission or acts of omission (failure or refusal to act) upon proof of an accompanying requisite alternative culpable mental state (“intentionally, knowingly or recklessly”). The amendment further abandons the current language of (i) and (ii) in favor of conforming their substance to the amended language of paragraph (3) of subdivision (c).

Advisory Committee Notes—1999

[M.R. Crim. P. 42(c)(2)(E).] This amendment replaces “bench warrant” with “warrant or order of arrest” to provide maximum latitude in securing the prompt arrest of an alleged contemnor who fails to appear as required for a plenary proceeding.

[M.R. Crim. P. 42(d)(2)(E).] See Advisory Committee Note to M.R. Crim. P. 42(c)(2)(E).

Advisory Committee Notes—2001

Rule 42, subdivisions (a), (b) and (d) are amended to revise and clarify language that has created confusion in implementation of the 1997 rule changes. These same amendments to subdivisions (a), (b) and (d) have already been adopted in Rule 42’s civil rule counterpart—namely, M.R. Civ. P. 66(a), (b) and (d)—effective June 1, 2000. The substantive changes to subdivisions (a),

(b) and (d) are as follows:

1. The definition of “contempt,” subsection (a)(2)(A)(i), is broadened to include any obstructing, demeaning, or hindering action, returning to the interpretation, prior to the 1997 amendment, which narrowed the definition. “Contempt of court may be defined as an act which is calculated to embarrass, hinder or obstruct a court in the administration of justice or which is calculated to lessen its authority or dignity.” In re Bernard, 408 A.2d 1279, 1281 n.2 (Me. 1979) citing in re Holbrook, 133 Me. 276, 280 (1935).

2. The definition of punitive sanction, subsection (a)(2)(B), is amended to recognize that it may be imposed either to punish a completed act of contempt or to punish and stop an ongoing act of contempt. The existing definition with the word “retrospectively” created concern that contempt could not be imposed until after the contemptuous act or disruption was completed. Sometimes the court must act while the disruption is ongoing.

3. Subsection (a)(3) is revised to remove the requirement for citation of a specific subsection of this rule as part of the initiation of a contempt proceeding.

4. Subsection (a)(4) is removed. The general law regarding disqualification and recusal would continue to apply, as it always has, in contempt proceedings.

Discussing the former disqualification rule under M.R. Crim. P. 42(b), the Law Court, in Alexander v. Sharpe, 245 A.2d 279, 285 (Me. 1968) stated:

Rule 42(b) expressly excepts from this requirement the action of a justice for contempts occurring in the justice’s presence. Neither our Rule 42(a) nor the Federal Rule from which ours was adopted disqualifies the Presiding Justice from dealing with contempts committed in open court in his presence in cases where the alleged contemptuous conduct, besides offending the orderliness of the proceedings, also impugns the integrity of the Justice. The need for summary action plus the advantage of the presiding justice’s first hand observation of the offending actions and their background must be balanced against the danger that personal resentment may enter into the Justice’s evaluation of the incident.

Accordingly, no special rule governing disqualification is needed in contempt proceedings.

5. Subdivisions (b)(1) and (2) are revised to follow the summary contempt language and practice of the first sentence of F.R. Crim. P. 42(a). Under this revision, summary contempt may be imposed where contempt is committed in the actual presence of the court. Subparagraphs (A) and (B) of subdivision (b)(2) are stricken as unnecessary, and subparagraphs (C) and (D) are incorporated into the text of subdivision (b)(2). These amendments are designed to return summary contempt practice to practice as it existed prior to the 1997 amendments.

6. Subdivision (b)(3) is amended to increase the fine cap for summary contempts from $1000 to $5000.

7. Subsection (d)(2)(C) is amended to permit the court to order that a hearing be held less than 10 days after service in appropriate circumstances. Such may be particularly important in cases seeking contempt for violation of parental rights orders.

8. Subsection (d)(2)(D) is amended to remove the prohibition on court appointed counsel. There may be circumstances such as alleged violation of child protective orders or termination of parental rights orders, where individuals may have rights to court appointed counsel as a result of operation of other provisions of law. Because the general law regarding assistance of counsel and right to court appointed counsel applies to such proceedings, and there generally is no such right in civil proceedings with some exceptions, removal of the entire sentence is recommended.

9. Subsection (d)(3) is amended to specify that sanctions may be imposed after a finding of contempt but during the same contempt proceeding. This removes concern that two hearings may be required to complete a remedial contempt process.

This is not inconsistent with Wells v. State, 474 A.2d 846 (Me. 1984). In Wells, the petitioners had been jailed without any judicial determination of ability to pay their unpaid debt, 474 A.2d at 851. The Court held that a “subsequent hearing” on ability to pay was required, but only because that determination had not been made in the initial contempt hearing, 474 A.2d at 852. A trial court may address and decide all contempt issues in one hearing.

Advisory Committee Note—2003

Rule 42 has been abrogated except to serve as a signpost directing the reader to apply the procedures contained in Rule 66 of the Maine Rules of Civil Procedure when implementing the inherent and statutory powers of the court to impose punitive and remedial sanctions for contempt arising out of any criminal proceeding.

Currently contempt proceedings arising out of a criminal case are addressed in Rule 42 while contempt proceedings arising out of a civil case are addressed in Rule 66 of the Maine Rules of Civil Procedure. The existence of two contempt rules rather than one has created unnecessary confusion for both the bench and the bar. See, e.g., State v. Manter, 2001 ME 164, ¶ 5, 784 A.2d 513, 514 (defendant arguing erroneously that punitive contempt had to be pursued under Rule 42 rather than Rule 66 even though contempt charges arose out of a civil matter); State v. Pelletier, 2001 ME 173, ¶ 2, 786 A.2d 609, 610-11 (trial court applied Rule 66 rather than Rule 42 even though summary contempt arose out of a criminal matter).

Additionally, because proceedings made available under each rule to address contumacious behavior arising in an underlying criminal or civil case— namely, summary and plenary for punitive sanctions or plenary for remedial sanctions—must of necessity be uniform, changes made to one should simultaneously be made to the other. However, in actual practice changes have not been successfully coordinated. Significant changes made to Rule 66, effective June 1, 2000 (see Me. Rptr., 746-754 A.2d XLVII-XIIX and LII), were made to Rule 42, (see 2002 Maine Rules of Court at 197-200), some changes made to Rule 42 have not been made in Rule 66 (see Me. Rptr., 699-709 A.2d, XCI, XCIX-C, CV-CVI and February 16, 1999 (see Me. Rptr., 716-724 A.2d LIII, LXI-LXII, LXV). Collapsing the current two rules into one eliminates this ongoing nonconformity problem.