Rule 66.Contempt Proceedings

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’s Notes — June 2, 1997

Rule 66 is identical to M.R.Crim.P. 42, both rules being adopted at the same time to clarify present confusion about contempt and to provide a road map applicable to all contempt proceedings. [Effective July 1, 2003, M.R.Crim.P 42 was abrogated except for a cross reference and statement that M.R. Civ. P. 66 governs procedure for contempt matters arising in criminal cases.]

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.A. § 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 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 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 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. 194 (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.A. §§ 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 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.