As it prepares to go to court next month with local artist and disgruntled former ski instructor Lee Mulcahy, the Aspen Skiing Co. may use at trial an image he recently sent out via Twitter that shows a person in a suit, tie and riot helmet holding a gun.
The image is among several documents recently disclosed by SkiCo’s attorney as potential trial exhibits. The company’s special-use permits with the U.S. Forest Service, Facebook posts by Mulcahy and articles that ran in Aspen’s newspapers also may be used in court.
Mulcahy, seeking to overturn the SkiCo’s banning of him from its property and the land it leases from the Forest Service, sued the company in April 2012. He was fired in 2011 for what the company has said were several infractions. Mulcahy maintains it was retaliation for his distribution of fliers at the SkiCo-owned Little Nell hotel that criticized the company’s ski-school salary policies, along with complaints he made to the National Labor Relations Board.
Mulcahy was banned and subsequently fired, and he alleges that the property prohibition violates his First Amendment rights. The SkiCo contends he is not entitled to have the ban overturned.
On Monday, Ed Ramey, the Denver attorney representing SkiCo, disclosed to Mulcahy the exhibits he may introduce at trial.
They include the Twitter image Mulcahy posted on June 5.
“That’s the sort of thing that disturbs us,” Ramey said Wednesday. “I don’t know what that is.”
Mulcahy was vague when asked what the image represents.
“Probably a painting I did or maybe a YouTube video I posted,” he said in an email. “Regardless, it’s freedom of expression. SkiCo’s attempt to silence criticism and dissent always backfires on them.”
It’s not the first time a reference to a gun has arisen in Mulcahy’s multifaceted legal battles.
A posting he made on the Aspen Institute Facebook page to “pitchforks and guns at your doors,” as well as the National Rifle Association, got him banned in December from the Institute’s property. He is appealing the ban.
Ramey said he and Institute attorneys have discussed Mulcahy, in particular their belief that he is being helped by an attorney. He is representing himself in both the appeal and his lawsuit against the SkiCo.
The Aspen Skiing Co., which is being sued by former ski instructor Lee Mulcahy, says it may use at trial this image that he posted on his Twitter account.
In an email Monday, Ramey warned Mulcahy that he and the lawyer could face sanctions because they have not disclosed that assistance.
“It is apparent that several of the documents you have filed in this case from time to time have involved some drafting input from an attorney,” Ramey wrote. “That is perfectly fine — in fact, I’ve recommended repeatedly that you consult with an attorney.”
However, Colorado legal rules require that attorneys who assist with the preparation of pleadings or other papers filed by someone who is representing himself disclose their name and other information, Ramey wrote.
“Violation of this rule can subject the attorney to sanctions,” he said.
Mulcahy acknowledged that he has received some legal guidance but declined to say who the person is, only that they are currently in Switzerland.
“I’m a peon and wise enough to listen to others who have way more experience,” he wrote. “I’m an honorable man and would never share that person’s name with any of the Crowns’ hired bullies in Denver before talking to that person first.” The Crown family of Chicago owns SkiCo.
Ramey said he and lawyers for the Institute “have noted that there are passages that are pretty clearly written by an attorney.”
Mulcahy’s filings generally discuss his grievances, and “then there are passages written like lawyers write,” Ramey said. “Cases are cited accurately, and it’s written in the funny way that attorneys like to write things. Then it’ll go back to Mr. Mulcahy’s normal style.”
He said such instances have turned up in the SkiCo lawsuit and Mulcahy’s appeal in the Institute case.
“I don’t want an attorney to find themselves in that posture unwittingly,” Ramey said.
The SkiCo’s special-use permits with the Forest Service comprise 80 pages and represent the agreements that allow the company to operate its four ski areas. Ramey declined to say how, or even whether he intends to use the permits at trial, though the documents could presumably be introduced to back up the SkiCo’s contention that it is allowed to ban Mulcahy.
The trial is set for Aug. 19-21 before a jury in Glenwood Springs (where Aspen-based cases are sometimes assigned). However, Ramey also has filed a motion that seeks to strike jurors from the trial. Ramey said the issues involved don’t warrant a jury and should be decided by a judge.