A case that sharply divided the Texas Supreme Court earlier this year has made its way to the U.S. Supreme Court via a petition for writ of certiorari that presents the high court with an opportunity to resolve lower court splits on two issues.
Embattled Austin real estate developer Nate Paul has argued Travis County District Judge Jan Soifer violated his constitutional right to due process as well as the principles of separation of power when she allowed opposing counsel representing a charitable foundation in a civil real estate dispute to criminally prosecute him for contempt.
Paul was found to be in contempt of court for violating an order requiring him to disclose any transfer of assets in excess of $25,000 and Judge Soifer ordered him incarcerated for 10 days. The Texas Supreme Court has stayed that order of contempt pending the outcome of this appeal.
Because the lawyer representing The Roy F. and Joann Cole Mitte Foundation was “financially interested” in the outcome of the contempt proceedings, Paul argues it should have been referred to a local prosecutor. He also argues a second violation of his constitutional rights occurred when he was not given an opportunity to address the court prior to his sentencing.
Paul, who argues that what happened to him in this case is “a stunning episode of Wild West justice,” filed his petition on June 13. The Mitte Foundation, whose attorney Ray Chester of McGinnis Lochridge told The Texas Lawbook that Paul’s petition “contains many factual misstatements,” has until July 18 to file a response.
“The trial court appointed the Foundation’s private counsel — who stood to be paid from Mr. Paul’s assets — to prosecute a criminal-contempt case against him. In other words, the trial court allowed one civil litigant’s lawyer to bring criminal charges against his opponent,” Paul argues in the petition. “The trial court then adjudicated Mr. Paul guilty of criminal contempt via email and ordered him to report to jail for a ten-day sentence. That criminal-conviction-and-sentence-by-email provided Mr. Paul no opportunity to address the court before sentencing, no right to attend his sentencing, and no right to counsel.”
As the petition lays it out, the U.S. Supreme Court could resolve two splits if it agrees to take the case:
1. Whether a criminal-contempt prosecution by an interested private party violates the Due Process Clause.
2. Whether sentencing a criminal defendant to jail via email, in absentia and without the opportunity to address the judge, violates the Due Process Clause or the Sixth Amendment.
David Gerger of Gerger Hennessy Martin & Peterson, who represents Paul in this appeal, issued a statement to The Lawbook explaining why he believes the case is ripe for U.S. Supreme Court review.
“As four Justices of the Texas Supreme Court wrote — we shouldn’t have a bounty system where private parties criminally prosecute their opponents to gain an advantage in civil litigation,” he wrote. “It’s a matter of due process that criminal cases are brought by independent authorities.”
The Foundation’s lawyer, Chester, said that his bringing Paul’s “contemptible conduct” to the attention of Judge Soifer “is the customary procedure in Texas and most states.” And there are more alleged inaccuracies in the petition Chester outlined in an email to The Lawbook.
“Second, the petition curiously and inaccurately states that Mitte’s attorney (me) ‘stood to be paid from Mr. Paul’s assets,’” he wrote. “This also has no basis in fact. Lastly, the petition implies that Mr. Paul was not represented by counsel at various stages of the proceedings, and this is completely false.”
Paul filed a petition for mandamus with the Texas Supreme Court in April 2023. The National Association of Criminal Defense Lawyers filed an amicus brief in support of Paul the following month.
The Texas Supreme Court denied the petition on March 15 and generated a rare 5-4 split from the all-Republican court. Justice Jane Bland, joined by Chief Justice Nathan Hecht, Justice John Devine and Justice Brett Busby, authored a 10-page dissent arguing that the “[p]rivate prosecution of criminal contempt by a judgment creditor in a related civil action is likely a constitutional violation worthy of this Court’s attention.”
“Employing a financially interested private party to prosecute a defendant for criminal contempt raises due process and separation-of-powers constitutional concerns,” she wrote. “While a court may initiate criminal contempt charges based on a failure to comply with its orders or abuse of process, a court should refer such charges to the local prosecuting authority. In the rare circumstance that such a referral is unworkable, the court should appoint an independent prosecutor—one financially disinterested in the outcome of the contempt proceeding.”
Paul is also represented by Cynthia E. Orr and Gerald H. Goldstein of Goldstein & Orr in San Antonio and Lisa S. Blatt, Amy Mason Saharia and Aaron Z. Roper of Williams & Connolly in Washington, D.C.
The Mitte Foundation is also represented by Michael A. Shaunessy and Andrew Edge of McGinnis Lochridge and Craig T. Enoch and Elana Einhorn of Enoch Kever.
The case number is 23-1313.