After two previous efforts at getting his trespassing trial continued failed, the third time was a charm on Wednesday for a former ski instructor embroiled in a long legal fight with the Aspen Skiing Co.
Lee Mulcahy, 48, of Aspen, persuaded Judge Erin Fernandez-Ely of Pitkin County Court that issues in his two lawsuits against SkiCo officials may affect his misdemeanor case.
Mulcahy contends he was fired in January 2011 because he distributed fliers to guests in the SkiCo-owned Little Nell hotel and in gondola plaza that criticized the ski school’s instructor pay policies. He also filed two complaints with the National Labor Relations Board (NLRB). SkiCo officials have maintained that his dismissal was unrelated to the NLRB complaints and cited the work performance of Mulcahy, who at one time was part of an elite team of instructors.
Mulcahy sued SkiCo and its CEO, Mike Kaplan, in February for libel, and sued company owners Paula and James Crown in March.
The latter suit contends that his termination from the company and its subsequent banning of him from SkiCo-owned property and U.S. Forest Service land the company leases for the ski areas was retaliatory and unconstitutional.
Mulcahy was cited for trespassing in late March for allegedly going onto SkiCo’s property at the Aspen Business Center to serve the Crowns with the lawsuit summons.
He said in court on Wednesday that some of the exhibits Aspen prosecutor Richard Nedlin plans to use at trial — namely, the letter from SkiCo vice president Jim Laing that spelled out the ban — are exhibits that Mulcahy is using in his lawsuits.
In essence, were Mulcahy to prevail in the lawsuit against the Crowns and have the ban overturned, it would make the trespassing ticket moot.
“I’m an American, I pay taxes,” he said in court regarding the Forest Service ban. “I object to that.”
He also said he believes he is protected under the federal whistle-blowing law.
That was enough for Fernandez-Ely to continue the misdemeanor jury trial, which had been set for today and Friday.
Previous continuance motions that Mulcahy filed because he was out of the country, and then was trying to finish building his Burlingame residence before winter, had been denied. Mulcahy, who is representing himself, waived his right to a speedy trial.
Fernandez-Ely set a status conference for Dec. 11 in an effort to let the issues related to exhibits be sorted out on the civil side before the criminal matter is addressed.
Fernandez-Ely noted that finding six jurors for the trespassing trial may be difficult given the media coverage of Mulcahy and because so many people work for the SkiCo, which automatically disqualifies them from the jury pool.