Concha v. Sanchez

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 12:51:41 2011.08.05

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMSC-031

Filing Date: July 19, 2011

Docket No. 32,080

LYNETTE CONCHA, ET AL.,

Petitioners,

v.

HON. SAM B. SANCHEZ,
DISTRICT COURT JUDGE,
EIGHTH JUDICIAL DISTRICT,

Respondent,

and

STATE OF NEW MEXICO,

Real Party in Interest.

ORIGINAL PROCEEDING

Jacqueline Cooper, Chief Public Defender
Nancy M. Hewitt, Appellate Defender
T. David Eisenberg, Deputy Public Defender
David A. Bouchard, Deputy Public Defender
Santa Fe, NM

for Petitioners

Gary K. King, Attorney General
David Tourek, Assistant Attorney General
Santa Fe, NM

for Respondent and Real Party in Interest

OPINION

1
DANIELS, Chief Justice.

{1} The extraordinary contempt powers of our courts often require judges to accommodate
important, but potentially conflicting, obligations. Judges must take reasonable and necessary
steps to maintain the order and safety of our court processes. At the same time, they must
comply with fundamental principles of our constitutional system of due process of law to ensure
that the judiciary itself does not act lawlessly in the course of enforcing the law. In this Opinion,
we address how each of those important obligations should be honored without sacrificing the
others.

I. FACTUAL AND PROCEDURAL HISTORY

{2} This case came before us on a petition invoking our emergency original jurisdiction to
review the indefinite detention of thirty-two courtroom spectators who had all been summarily
ordered to jail for contempt of court by Respondent after a contentious hearing evolved into a
courtroom disruption created by some, but not all, of the Petitioners.

{3} The underlying hearing related to a criminal case in which a defendant had entered guilty
pleas to criminal sexual penetration and criminal sexual contact of a minor, his thirteen-year-old
niece. Respondent had sentenced the defendant to six years of imprisonment on each of the two
counts, to be served consecutively.

{4} On the afternoon of Thursday, November 19, 2009, Respondent heard the defendant’s
motion for sentence reduction. On the north side of the courtroom’s large gallery sat the victim,
accompanied by her mother, step-father, grandparents, and a victims’ advocate from the district
attorney’s office. On the east side of the gallery sat Petitioners, many of whom apparently
supported a reduced sentence for the defendant. All but one of the Petitioners, who ranged in
age from twenty-two to seventy-one years old, were members of Taos Pueblo. The other
Petitioner was the defendant’s employer. The court had two bailiffs present, and several
employees of the district attorney’s office also attended the hearing to provide additional
security in light of the tensions that existed between the victim’s family and the defendant’s
friends and family.

{5} During the reconsideration hearing, four people spoke in support of the defendant’s
request for a sentence reduction. Three of the victim’s family members also spoke and urged
Respondent to uphold the sentence. The courtroom remained orderly throughout the witnesses’
presentations. At the end of the hearing, Respondent denied the motion to reduce the sentence,
emphasizing that the defendant “[was] the adult in this situation,” had “destroyed a lot of
families,” and was “the one to blame” for what had happened. Respondent concluded the
hearing by stating that the court was in recess.

{6} The events that took place immediately after Respondent recessed the court were
preserved in a digital audio recording and supplemented by accounts of some of the persons
present. Four seconds after the bailiff announced, “All rise,” Respondent, who had left the

2
bench but was still in the courtroom, said, “I want everyone on this side to remain seated,”
apparently referring to the area in which Petitioners were standing. The defendant responded
by saying, “This has all been one sided,” and murmurs from unidentified members of the crowd
indicated that some of them agreed. Respondent ordered the bailiff to remove the defendant
from the courtroom.

{7} At that point, the noise level in the courtroom increased as the voices of the defendant
and some of the spectators became louder. Unidentified voices shouted messages of support to
the defendant, such as “We love you,” and “Bye.” Derogatory statements about the victim and
her family were also made, including “she’s no virgin,” her “grandfather’s a rapist,” and a
reference to “a little whore and a bunch of liars.” As the defendant was being led out of the
building, the noisy exchange between opposing sides of the courtroom continued in both English
and Tiwa, the traditional Taos Pueblo language. The victim and her family were safely escorted
through a locked jury room to their car.

{8} Thirty-nine seconds after the bailiff first told the crowd to rise and while audible
statements were still being made, Respondent yelled, “That’s enough—I’ll hold every one of you
in contempt and jail you all!” Although the noise level in the courtroom immediately dropped
dramatically, an unidentified voice could be heard saying, “We’ll all go.” According to an
employee of the district attorney’s office who was present at the hearing, “[a] gentleman sitting
near the front row shouted that he didn’t care and they would go to jail.” Respondent, who
represented at oral argument before this Court that there were “several” unidentified people who
stated that they would go to jail, yelled, “You’ll all go? Okay, take them all. Go on, all of you,
go on to jail!” Respondent asked that the sheriff be called immediately to provide further
assistance.

{9} Moments after Respondent ordered Petitioners to “go on to jail,” members of the Taos
County Sheriff’s Department, Taos Police Department, and New Mexico State Police began to
arrive. The officers advised the east gallery spectators that they would be booked and jailed.
Respondent left the courtroom and allowed the police officers to process Petitioners, which
apparently took place without further incident. One Petitioner was taken to the hospital to be
examined for an unrelated health condition. Four of the more elderly Petitioners were
incarcerated at the Taos Pueblo jail. Because there was room for only seven Petitioners at the
Taos County jail, all of those not locked up in the two Taos area jails were transported to Santa
Fe by bus and booked into the Santa Fe County Detention Center.

{10} The persons arrested were the spectators who had been in the east side of the public area
of the courtroom where the defendant’s family, friends, and employer were seated. Without any
further hearing or fact-finding process, Respondent entered thirty-two identical two-sentence
orders that facially adjudicated each Petitioner guilty of direct criminal contempt:

IT IS HEREBY ORDERED that [name] is held in direct contempt of
court for misconduct during a hearing in State of New Mexico v. Dominic Bau,
CR-2008-0004 on November 19, 2009. Defendant to be held until further order

3
 of the Court.

The orders contained no individualized allegations or findings concerning any individual
Petitioner’s conduct, no provisions for bond or other conditions of release, no specific sentences,
and no settings for any future hearings. The jails were, in effect, ordered to incarcerate each
Petitioner until and unless the court issued a future order to the contrary.

{11} After Respondent summarily ordered Petitioners to jail on Thursday, there was no
hearing of any kind held or even scheduled on either Thursday or Friday. Petitioners secured
the assistance of counsel, who learned from the court clerk that the only setting in the case was
an “arraignment” scheduled for the following Monday at 4 p.m., meaning that Petitioners would
have to remain locked in jail without bond for at least four days and nights before having any
opportunity to be heard on any issue.

{12} On the next day, Friday afternoon, Petitioners filed a petition for emergency writ of
prohibition or superintending control in this Court, seeking relief from the contempt orders. Late
that afternoon, this Court issued a stay of the proceedings against Petitioners, ordered their
immediate release from custody, and ordered them to appear before Respondent for the
purported “arraignment” hearing on Monday afternoon, November 23.

{13} At the November 23 district court hearing, instead of conducting arraignments or any
further proceedings in the thirty-two contempt cases, Respondent orally announced to Petitioners
and their counsel that he was dismissing all contempt proceedings. On the following day he
entered a single order, naming all Petitioners as codefendants in a single case, that was as brief
and uninformative as the original separate charging orders:

“THIS MATTER having come before this Court on the 23rd of
November, 2009, for Arraignment.
IT IS THEREFORE ORDERED that this matter is hereby dismissed with
prejudice.”

{14} On November 30, Respondent filed in this Court a cursory response to the pending
petition for extraordinary relief that did not respond to either the factual or legal allegations in
the petition, but instead took the position that “the remaining relief sought in the Petition has
become moot” as a result of Respondent’s intervening order dismissing the contempt “matter.”

{15} On December 4, we entered an order stating that “this Court d[id] not consider th[e]
matter moot” and instructing Respondent “to respond to the questions raised in the petition
concerning the appropriateness of contempt and, more generally, the appropriate procedure for
a judge to follow when considering contempt for unruly behavior in a courtroom and whether
[Respondent] followed that procedure in this case.”

{16} In his filed response to our December 4 order, Respondent took the position that he had
used contempt sanctions against all Petitioners, whether guilty or innocent of misconduct, in

4
order to protect the safety of all courtroom occupants and to regain control of the courtroom:

While it may be true that a small number of Petitioners may not have acted as
contemptuously as other Petitioners or contemptuously at all, the Court in acting
to protect the safety of all individuals in the courtroom and regain control of the
courtroom had to act quickly and did not have the time to separate out a few
passive members of the defendant’s group that may not have acted
contemptuously.

{17} At the subsequent oral argument before this Court, Respondent represented that his
primary goal was to ensure the safety of the victim and her family. He feared that an attack was
imminent because “all hell broke loose” in the courtroom at the close of the hearing and there
were some members of the crowd who were standing and yelling. Respondent said he was
especially concerned because there were no “law enforcement” personnel present at the court
and one of the court’s two bailiffs was outside the courtroom managing security at the entrance.

{18} Respondent further explained that he could not tell which members of the crowd were
standing or yelling after he ordered all spectators to remain quietly seated. Because he
admittedly could not determine which of the thirty-two Petitioners had engaged in contemptuous
conduct, he took the position that he had no choice but to arrest all the spectators in the area of
the courtroom where the disturbance had taken place. Respondent stated that he had never
confronted this type of disturbance in his courtroom and merely did what he thought was
necessary to regain control of the situation.

{19} Respondent further represented to this Court that he had intended to dismiss the contempt
orders and release Petitioners on the Friday after they were jailed, despite Petitioners’ counsel’s
inconsistent assertion that, when Petitioners served their extraordinary writ petition on
Respondent on that same Friday afternoon, Respondent stated, “You guys didn’t have to do that.
I was going to release them on Monday.” When asked by this Court why he would have planned
to dismiss charges against all Petitioners without following through on his criminal contempt
orders, Respondent stated:

I didn’t look at it as guilt or non-guilt. . . . I didn’t look at it as finding anyone
having conducted anything that was going to result in any jail sentence except
that I had to control the crowd at that time.

{20} At the conclusion of our writ hearing, and with the concurrence of all parties and counsel,
this Court ordered the contempt convictions vacated and Petitioners’ arrest and booking records
expunged. In this follow-up Opinion, we address the reasons why we issued our writ and
discuss the interrelated issues of contempt powers and limitations, courtroom control, and due
process of law.

II. DISCUSSION

5
A. Source and Nature of Contempt Powers

{21} We begin by recognizing the indisputable authority of judges to compel obedience to
their orders and to maintain the decorum and safety of their courtrooms.

{22} Pursuant to NMSA 1978, Section 34-1-2 (1851), all New Mexico courts have the power
to “preserve order and decorum, and for that purpose to punish contempts by reprimand, arrest,
fine or imprisonment, being circumscribed by the usage of the courts of the United States.”
“This statute is declaratory of the common law.” In re Klecan, 93 N.M. 637, 638, 603 P.2d
1094, 1095 (1979).

{23} Even in the absence of express statutory authority, “courts of justice are universally
acknowledged to be vested, by their very creation, with power to impose silence, respect and
decorum in their presence, and submission to their lawful mandates.” Anderson v. Dunn, 19
U.S. 204, 227 (1821). While statutes may provide reasonable regulatory measures, the
Legislature may not “substantially impair or destroy the implied power of the court to punish
for contempt.” State ex rel. Bliss v. Greenwood, 63 N.M. 156, 162, 315 P.2d 223, 227 (1957).

{24} The exercise of the contempt power and the conduct it is intended to address may take
various forms. “Contempts of court are classified as civil or criminal. . . . The major factor in
determining whether a contempt is civil or criminal is the purpose for which the power is
exercised.” In re Klecan, 93 N.M. at 638, 603 P.2d at 1095. Criminal contempts are further
delineated “as direct or indirect.” Id. at 638, 603 P.2d at 1095. “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.” Id. at 639, 603 P.2d at 1096.

{25} Civil contempts are remedial and may use fines, imprisonment, or other sanctions as
coercive measures to compel the contemnor to comply in the future with an order of the court.
See State ex rel. Apodaca v. Our Chapel of Memories of N.M., Inc., 74 N.M. 201, 204-05, 392
P.2d 347, 349-50 (1964). Because the purpose of those civil contempt sanctions is to compel
compliance with the court’s orders and not to punish, the continuing contempt sanctions end
when the contemnor complies. A civil contempt defendant “carries the keys of his prison in his
own pocket. He can end the sentence and discharge himself of contempt at any moment by
doing what he has previously refused to do.” State v. Pothier, 104 N.M. 363, 364, 721 P.2d
1294, 1295 (1986) (internal quotation marks and citation omitted). Civil contempt sanctions
may be imposed by honoring the most basic due process protections—in most cases, fair notice
and an opportunity to be heard. Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S.
821, 827 (1994); see Turner v. Rogers, ___ U.S. ___, ___, 131 S. Ct. 2507, 2520 (2011) (holding
that constitutional due process in civil contempt proceedings requires notice and a hearing but
not the right to counsel).

{26} Criminal contempt proceedings are instituted to punish completed acts of disobedience
that have threatened the authority and dignity of the court and are appropriate even after the
contemnor is no longer acting contemptuously. Bagwell, 512 U.S. at 828-29. Both this Court

6
and the United States Supreme Court have long recognized that “‘[c]riminal contempt is a crime
in the ordinary sense; it is a violation of the law.’” Pothier, 104 N.M. at 365, 721 P.2d at 1296
(alteration in original) (quoting Bloom v. Illinois, 391 U.S. 194, 201 (1968)). 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. No matter how a criminal contempt is characterized, it is a “fundamental proposition
that criminal penalties may not be imposed on someone who has not been afforded the
protections that the Constitution requires of such criminal proceedings, including the
requirement that the offense be proved beyond a reasonable doubt.” Hicks v. Feiock, 485 U.S.
624, 632 (1988).

{27} A person who commits disruptive or defiant conduct in the midst of an ongoing court
proceeding within the personal perception of the judge has committed an act of direct criminal
contempt and may be punished summarily without further evidentiary proceedings. See, e.g.,
Purpura v. Purpura (In re Cherryhomes), 115 N.M. 80, 81-82, 85, 847 P.2d 314, 315-16, 319
(Ct. App. 1993) (upholding a finding of contempt where an attorney disobeyed the judge’s direct
orders, attempted to leave the court room before the hearing had finished, and pushed the
sheriff’s deputy who was attempting to restrain him). 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.” In re
Klecan, 93 N.M. at 639, 603 P.2d at 1096 (internal quotation marks and citation omitted)
(reversing a direct contempt citation for failure of the judge to permit the contemnor to explain
his conduct).

{28} When the judge has not personally witnessed the defendant’s contemptuous behavior in
the course of a court proceeding, the contempt is classified as indirect criminal contempt and
must be resolved through more traditional due process procedures. State v. Stout, 100 N.M. 472,
474, 672 P.2d 645, 647 (1983) (holding that an attorney charged with contempt for failing to
attend a scheduled hearing could be charged only with indirect, not direct, contempt because the
contempt did not occur in open court and the judge did not have personal knowledge of the
reasons for the attorney’s nonappearance).

{29} The contempt power of a court is so broad that it is uniquely “‘liable to abuse.’” Bloom,
391 U.S. at 202 (quoting In re Terry, 128 U.S. 289, 313 (1888)). As human beings, judges
“‘sometimes exhibit vanity, irascibility, narrowness, arrogance, and other weaknesses to which
human flesh is heir.’” Id. at 202 n.4 (quoting Sacher v. United States, 343 U.S. 1, 12 (1952)).
Contumacy “often strikes at the most vulnerable and human qualities of a judge’s temperament.”
Id. at 202. Not only is a judge often personally involved to some degree in the conflict that must
be adjudicated, the same judge exercises several responsibilities normally assigned to separate
persons or institutions: “That one and the same person should be able to make the rule, to
adjudicate its violation, and to assess its penalty is out of accord with our usual notions of
fairness and separation of powers.” Bagwell, 512 U.S. at 840 (Scalia, J., concurring).

{30} Because we necessarily give judges such extraordinary unilateral powers, this Court

7
repeatedly has cautioned that we must require judges to exercise a correspondingly extraordinary
self-restraint to avoid abuses of those powers. See, e.g., Pothier, 104 N.M. at 369, 721 P.2d at
1300 (explaining that, in exercising the contempt power, a court “should not exercise more than
the least possible power adequate to the end proposed”); Case v. State, 103 N.M. 501, 503, 709
P.2d 670, 672 (1985) (“It is the responsibility of the judiciary to exercise that power wisely and
always within its limitations.”); Int’l Minerals & Chem. Corp. v. Local 177, United Stone &
Allied Prods. Workers, 74 N.M. 195, 200, 392 P.2d 343, 346 (1964) (explaining that contempt
power must be used “cautiously and sparingly”).

{31} We now examine Respondent’s actions in this case to determine whether they constituted
a lawful exercise of judicial power. In doing so, we must first determine what kind of contempt
power was exercised by Respondent and then consider whether he acted within the bounds of
his lawful discretion.

B. The Commitment Orders Were Not Civil Contempt Because Petitioners Could Not
Obtain Release from Jail by Compliance with the Orders.

{32} In determining the proper classification of a contempt order as criminal or civil, we look
to “the nature and purpose of the punishment, rather than the character of the acts to be punished,
as a controlling factor.” Int’l Minerals & Chem. Corp., 74 N.M. at 198, 392 P.2d at 345.
Respondent’s written orders, which state that Petitioners were being “held in direct contempt,”
reflect that Respondent intended to impose criminal sanctions. Although we are not bound by
Respondent’s characterization of the civil or criminal nature of the action he was taking, we
agree that his orders were in the nature of criminal contempt.

{33} Whatever contemptuous conduct any of the Petitioners allegedly had been engaged in
before Respondent summarily ordered all to jail, whether sitting when the bailiff told them to
rise, or standing when Respondent then told them to sit back down, or talking when he wanted
them to be quiet, there was nothing in the oral or written contempt orders that gave any of the
Petitioners the ability to “end the sentence and discharge [themselves] of contempt at any
moment by doing what [they had] previously refused to do.” Pothier, 104 N.M. at 364, 721 P.2d
at 1295. In the terms of our caselaw, none of them carried the keys of their prisons in their own
pockets. See Our Chapel of Memories of N.M., Inc., 74 N.M. at 205, 392 P.2d at 350.

{34} Indeed, the record reflects that whoever had been acting in any disruptive or disobedient
manner had ceased doing so immediately upon Respondent’s oral pronouncement that he was
sending everyone to jail, before a single written contempt order was prepared. At that point,
there was no need for any further crowd control or imposition of civil contempt sanctions.
Petitioners clearly were jailed for the past behavior of one or more of them and not as a coercive
measure to stop any continuing disorderly or disobedient behavior. “Where a contempt sanction
is punitive, not remedial, the proceeding is one of criminal contempt.” Beverly v. Beverly,
2000-NMCA-097, ¶ 8, 129 N.M. 719, 13 P.3d 77 (internal quotation marks and citation
omitted). Because Petitioners were ordered jailed without regard to their future conduct, we
must analyze Respondent’s actions by established rules of law applicable to punitive criminal

8
contempt proceedings.

C. Summary Direct Criminal Contempt Proceedings Were Inappropriate Because the
Judge Did Not Have Personal Knowledge of Any Petitioner’s Guilt.

{35} The thirty-two identical contempt orders and jail commitments entered by Respondent
specifically recited that he was holding each Petitioner in direct criminal contempt. But the due
process shortcuts of summary direct contempt proceedings are permitted only in exceptional
circumstances:

Except for a narrowly limited category of contempts, due process of law
. . . requires that one charged with contempt of court be advised of the charges
against him, have a reasonable opportunity to meet them by way of defense or
explanation, have the right to be represented by counsel, and have a chance to
testify and call other witnesses in his behalf, either by way of defense or
explanation. The narrow exception to these due process requirements includes
only charges of misconduct, in open court, in the presence of the judge, which
disturbs the court’s business, where all of the essential elements of the
misconduct are under the eye of the court, are actually observed by the court, and
where immediate punishment is essential . . . .

State v. Diamond, 94 N.M. 118, 121, 607 P.2d 656, 659 (Ct. App. 1980) (first alteration in
original) (emphasis omitted) (internal quotation marks omitted) (quoting with approval In re
Oliver, 333 U.S. 257, 275 (1948)).

{36} Although an immediate need to control courtroom misconduct may justify quick action
of some kind, one of the necessary bases for dispensing with normal due process fact-finding
protections before criminal conviction and punishment may be imposed is “the personal
knowledge of the judge” as to the defendant’s guilt. Id. at 120-21, 607 P.2d at 658-59. Since
the earliest days of the common law, Anglo-American courts have recognized that where
determination of guilt or innocence requires a “‘confession of the party or the testimony of
others’” to supplement the judge’s incomplete personal observations, the summary procedures
of direct contempt are inappropriate. In re Terry, 128 U.S. at 307 (quoting 4 William
Blackstone, Commentaries *286).

{37} In this case, the judge concededly had no personal knowledge of the guilt or innocence
of any single one of the thirty-two courtroom spectators he sentenced to jail. In a striking
perversion of the “overriding presumption of innocence with which the law endows the accused
and which extends to every element of the crime,” Respondent entered orders that essentially
inflicted on each Petitioner an irrebuttable presumption of guilt. State v. Ortega, 112 N.M. 554,
562, 817 P.2d 1196, 1204 (1991) (emphasis omitted) (internal quotation marks and citation
omitted), abrogated on other grounds by State v. Frazier, 2007-NMSC-032, ¶¶ 1, 31, 142 N.M.
120, 164 P.3d 1. In convicting and jailing Petitioners without having judicial knowledge of their
guilt, Respondent unlawfully used the summary processes of direct criminal contempt. If he had

9
wished to pursue contempt actions against any or all Petitioners, the only lawful avenue would
have been through non-summary indirect criminal contempt proceedings where their guilt or
innocence could be properly determined.

{38} We now consider whether his actions could be justified as a proper exercise of indirect
criminal contempt powers.

D. The Due Process Protections of Indirect Criminal Contempt Proceedings Were Not
Honored.

{39} The explicit language of the brief contempt orders, reciting that each Petitioner had
already been “held in direct contempt of court,” reflected that criminal convictions had already
been entered, with nothing left to be adjudicated. Those orders cannot be reconciled with the
scheduling of an “arraignment” on the charges several days later. An arraignment is “[t]he
initial step in a criminal prosecution whereby the defendant is brought before the court to hear
the charges and to enter a plea.” Black’s Law Dictionary 123 (9th ed. 2009). But any further
contempt proceedings would have been barred by our constitutional protections against double
jeopardy after Petitioners already had been found in criminal contempt for the same behavior.
State v. Driscoll, 89 N.M. 541, 546-47, 555 P.2d 136, 141-42 (1976) (holding that further
contempt proceedings after a lawyer was summarily jailed for contempt in open court would
constitute double jeopardy).

{40} Even if we construe the contempt orders as indirect contempt findings, Respondent also
failed to honor any of the due process protections required in non-summary indirect contempt
prosecutions. The contempt orders provided no fair notice of each Petitioner’s allegedly
contemptuous behavior. See Norton v. Reese, 76 N.M. 602, 605, 417 P.2d 205, 207 (1966)
(observing that a contempt defendant has a right under Article II, Section 14 of the New Mexico
Constitution to be given notice of “the nature and cause” of the criminal accusation). The
findings were not based on any evidence at all, admissible or inadmissible. See Rule 11-1101(B)
NMRA (providing that the New Mexico rules of evidence apply in all “contempt proceedings
except those in which the court may act summarily”). Petitioners were given no opportunity to
prepare or present any defense. See Pothier, 104 N.M. at 366, 721 P.2d at 1297 (observing that
due process of law in indirect contempt cases requires an opportunity to present a defense).
They were not afforded their constitutional right to the assistance of counsel, either appointed
or retained. See State v. Montoya, 1998-NMCA-149, ¶ 5, 126 N.M. 273, 968 P.2d 784. They
were held indefinitely without any opportunity to be released on bail, in violation of Article II,
Section 13 of the New Mexico Constitution and Rule 5-401 NMRA.

{41} Respondent lawfully could have initiated indirect contempt proceedings against those
individuals whom he had reason to believe were participating in disruptive or defiant conduct,
but he was required to honor the procedures of the law and the limits of constitutional due
process. In this case, he utterly failed to do so.

E. The Need for Courtroom Control Cannot Override the Requirement That Judges

10
Themselves Must Honor the Rule of Law.

{42} We address one final point with regard to Respondent’s exercise of the court’s contempt
powers. Respondent has argued from the outset of these proceedings that, notwithstanding his
convicting Petitioners of direct criminal contempt and ordering them jailed indefinitely, his goal
had been courtroom control and not punishment. But judges above all others in our society must
honor the fundamental principle that a desirable end cannot justify means that violate the law.
The contempt power has always been viewed as a lawful tool in achieving courtroom control.
But it is not the only tool available, and it normally need not be the first to be used. A clear
admonition of what is expected by a judge, coupled with a specific warning of the alternative
of contempt sanctions, often can achieve control without resort to a collateral contempt
prosecution. Our courts have recognized the importance of such clear warnings in a number of
published opinions:

[E]xcept in cases of flagrant contemptuous conduct, before summary punishment
for contempt may be imposed and enforced, the record should be clear that: (1)
a specific warning was given by the judge; (2) an opportunity to explain was
afforded, and (3) a hearing was held.

In re Klecan, 93 N.M. at 640, 603 P.2d at 1097 (internal citations omitted); see also In re
Herkenhoff, 1997-NMSC-007, 122 N.M. 766, 769, 931 P.2d 1382, 1385 (citing with approval
the prior warning caution of In re Klecan); In re Byrnes, 2002-NMCA-102, ¶ 16, 132 N.M. 718,
54 P.3d 996 (emphasizing that “[w]ithout a clear prior warning, it is improper for a judge to act
summarily in issuing a contempt order”).

{43} Respondent’s warnings of what he expected of the spectators lacked the clarity required
either by our caselaw or by the need to achieve courtroom control without resorting to contempt
sanctions. The hearing had recessed when Respondent countermanded the bailiff’s instruction
for the spectators to stand and told them to be seated. Respondent never told the spectators that
they could not speak. He certainly never effectively communicated to any of the spectators,
collectively or individually, that standing or speaking would result in contempt citations or jail.
His single reference to the possibility of contempt sanctions before ordering an entire group of
spectators to jail was when he yelled, “That’s enough—I’ll hold every one of you in contempt
and jail you all!” If he had simply stated that anyone who did not sit down or anyone who
continued talking would be jailed for contempt, he probably would have achieved the control
that he did just seconds later when he yelled, “You’ll all go? Okay, take them all. Go on, all
of you, go on to jail!” And if he had made reasonable efforts to identify the person or persons
who stated their willingness to go to jail, he could have avoided sweeping up the innocent with
the guilty.

{44} The record before us makes it clear that Respondent had achieved complete courtroom
control within less than a minute from the initiation of the disturbance, at the moment he orally
announced he was sending Petitioners to jail. At that point, there was no courtroom control to
be achieved by going further and convicting or jailing anyone, and there certainly was no lawful

11
justification for jailing innocent and guilty alike or disregarding the most fundamental
requirements of due process.

{45} We stress that nothing in our Opinion should suggest that a judge may not hold a
disruptive audience member in contempt of court. But in holding a person in contempt, a court
must honor the rule of law. A judge’s exercise of the contempt power must be tailored to the
contemptuous conduct, exerting just enough judicial power to right the wrong; no more, no less.
“[I]n selecting contempt sanctions, a court is obliged to use the ‘least possible power adequate
to the end proposed.’” Spallone v. United States, 493 U.S. 265, 276 (1990) (internal quotation
marks and citation omitted). Not only was Respondent’s mass jailing of all thirty-two occupants
of a public section of a courtroom, without any due process or determination of personal guilt,
not the least power necessary to control the courtroom, it constituted such a uniquely egregious
abuse of a court’s contempt power that our research has found no comparable occurrence in any
jurisdiction in the history of American law.

F. The Extraordinary Circumstances of This Case Called for the Exercise of This Court’s
Original Writ Jurisdiction.

{46} The arrests, convictions, and continued detentions of Petitioners were a clear and
continuing abuse of judicial power that called for this Court’s exercise of our original writ
jurisdiction. Criminal contempt convictions may be routinely reviewed on appeal for
arbitrariness and abuse of discretion. Case, 103 N.M. at 503, 709 P.2d at 672. But despite the
technical availability of an ordinary appeal, this Court has long recognized that our
superintending control jurisdiction under Article VI, Section 3 of the New Mexico Constitution
“will be exercised if the remedy by appeal is wholly or substantially inadequate, or if the
exercise thereof will prevent irreparable mischief, great, extraordinary or exceptional hardship,
costly delays, or unusual burdens in the form of expenses.” State ex rel. DuBois v. Ryan, 85
N.M. 575, 577, 514 P.2d 851, 853 (1973); see also State ex rel. N.M. Press Ass’n v. Kaufman,
98 N.M. 261, 265, 268, 648 P.2d 300, 304, 307 (1982) (granting Article VI, Section 3 writ of
prohibition where a district court’s order limiting media coverage of a trial could not be justified
as “a valid exercise of judicial power under any legal theory”).

{47} Given the extraordinary request for immediate judicial relief presented to us in this case
by thirty-two people jailed indefinitely without any semblance of due process, for this Court to
have remained idle, waiting for routine appellate processes to have worked their course, would
have seriously compounded the ongoing grave injustice being committed by a court subject to
our superintending control. We therefore granted the requested emergency relief.

III. CONCLUSION

{48} Respondent’s convictions and jail sentences of Petitioners were an unlawful abuse of
judicial power requiring this Court’s orders that Petitioners be released from jail and that their
criminal contempt convictions be vacated. We reaffirm our contemporaneous orders to that
effect.

12
{49} IT IS SO ORDERED.

_______________________________________
CHARLES W. DANIELS, Chief Justice

WE CONCUR:

_______________________________________
PETRA JIMENEZ MAES, Justice

_______________________________________
RICHARD C. BOSSON, Justice

_______________________________________
EDWARD L. CHÁVEZ, Justice

Topic Index for Concha v. Sanchez, Docket No. 32,080

CE CONTEMPT

CT CONSTITUTIONAL LAW
CT-DP Due Process

JG JUDGES
JG-JA Judicial Authority
JG-PC Propriety of Conduct

RE REMEDIES
RE-CC Civil Contempt
RE-CR Criminal Contempt

13