In a hearing intended to determine the suitability of a proposed receiver to oversee the sale of Lee Mulcahy’s Burlingame home, Pitkin County District Judge Chris Seldin ordered the Aspen Pitkin-County Housing Authority to return to the drawing board.
Denver-based attorney Jordan Porter, who represents Mulcahy in a “limited capacity,” appeared in a Glenwood Springs courtroom via telephone on Thursday to question Tim Whitsitt about his professional credentials and, more so, his existing relationship with attorney Tom Smith, who has represented APCHA in the years-long legal saga.
“Would you consider yourself friends with Mr. Smith?” Porter asked after a series of questions establishing their shared history.
“Yes,” Whitsitt answered.
Ultimately, it was that response that swayed Seldin’s decision. It’s not that he questioned Whitsitt’s abilities to execute court orders as a receiver in selling Mulcahy’s affordable housing property back to APCHA, the intended buyer, but he acknowledged that the stated friendship between parties could put the integrity of the legal process on trial in the court of public opinion.
“I believe the perception here, were the court to appoint Mr. Whitsitt, the confidence of the public could be subject to question,” Seldin said. “I don’t have any actual concerns about Mr. Whitsitt, were he to be appointed receiver. Essentially, any attorney who practices in this valley knows every attorney. It’s just a small legal community; people all know each other and litigate with each other.”
That said, Seldin continued that he found Whitsitt answering affirmatively to Porter’s labeling his and Smith’s relationship — which began in 1974 when they both were part of the same bar exam study group — a friendship a “distinguishing answer.”
“And there are ties, I think, between Mr. Whitsitt and Mr. Smith, particularly the relationship between Mr. Whitisitt’s wife and Mr. Smith,” the judge said. “They are more recent and could cause the public to question the receiver’s impartiality.”
Whitsitt’s wife, Jacque Witshitt, is mayor of Basalt. While Smith represents APCHA now, he served as attorney for the Town of Basalt from 2005 to 2018. During that time, he represented Jacque Whitsitt and town clerk Pam Schilling personally when being questioned by 5th Judicial District Attorney Bruce Brown regarding a complaint against the women that came from Basalt resident Mary Kenyon.
The details of that lawsuit came up during Porter’s questioning, hence Seldin’s considering it during his ruling on the matter.
“Someone who doesn’t have ties to either Mr. Smith or APCHA, there should be plenty of people who are qualified to do this very limited assignment,” he said. “Therefore, I don’t need to run the risk of having an appearance of partiality be an issue.”
It was the latest evolution in a long history of litigation by Mulcahy in an effort to maintain possession of his house — both the Colorado and U.S. Supreme Courts denied hearing his case after the Colorado Appeals Court upheld Pitkin County District Court’s 2016 ruling that Mulcahy must sell his house after APCHA filed suit against him in December 2015.
That didn’t mean that Porter and Mulcahy’s mother, Sandy Mulcahy, didn’t attempt to rehash the details of the original case Thursday.
“All this is about is, Mr. Mulcahy is looking for a fair shake. The notice of violation was sent while he’s known to be traveling,” Porter started to say after closing arguments had been made.
Seldin interjected almost immediately.
“Hold it,” he said. “There’s no way I’m going to argue the merits of this case right now.”
At that, Smith stood up and approached the podium to add to the exchange.
“No, sit down,” Seldin told him.
For Seldin’s part, he repeated several times that he’s bound by the Court of Appeals decision and that there is nothing further to argue in the matter, regardless of Mulcahy’s efforts. In his closing argument, Smith focused on those efforts, accusing Mulcahy of intentionally delaying the inevitable.
“We are talking about delay, delay and more delay in this case. I don’t think any receiver we put forth in this court will be satisfactory to Mr. Mulcahy,” Smith said. “To the extent that they don’t like Mr. Whitsitt, they can solve that problem in one minute by agreeing to comply with the court order. This is like a criminal saying, ‘I get to decide who supervises me in jail.’ I don’t get this.”
To that extent, Seldin was compassionate to Smith’s contention.
“Mr. Smith has a point when he notes were it not for Mr. Mulcahy’s refusal to simply obey the court’s order, we wouldn’t be here, so why should we have any sympathy for Mr. Mulcahy’s position?” he posed. “However, there are larger issues at stake here, namely the perception by the public of the integrity of the judicial process and the judicial process’ overseeing of APCHA and its process.”
Both Mulcahy and his mother, Sandy Mulcahy, reaffirmed in the courtroom that they would not comply with the court’s order that they list their Burlingame property for sale. The elder Mulcahy also aired her grievances against Seldin and APCHA.
“In your June order, you stated the home that we built needed to be occupied by a deserving family. Were you aware that my husband, dealing with cancer, ended up having a stroke? There’s never been any kind of mediation; there’s never been any kind of talking over,” she said, adding that Seldin never scheduled an allegedly required case management conference with her son, who was representing himself at the time.
“Are you not familiar with Exodus 22, which states, and the Lord said it: Do not take advantage of a widow or an orphan. My anger will be aroused, and I will kill you with a sword. So judge, I am crying out to you: This widow is not complying, and Lee is not complying,” she continued.
One option that was discussed during the hearing was to bypass appointing a receiver entirely, and instead have the court handle the sale directly, which is within its right.
Currently, the maximum sale value of the deed-restricted property is $995,000, up from the original $640,000 agreed upon when Mulcahy purchased the lot for about $150,000 before building the now contested house. That said, the final value of the house will not be decided until after title and building inspections, which could essentially create a price reduction.
Because of those factors, Seldin felt that a receiver is still the appropriate avenue for enforcing the ruling — but he added a note of caution, should Mulcahy attempt to make the house not viable.
“To the extent that there might be some vandalism to the property, that could be dealt with by the criminal court or a civil case,” he said. “It seems that a receiver is unfortunately necessary.”
Even once a transaction is successful, actually evicting the Mulcahys may still become an issue.
“If a SWAT team is sent, Aspen will make national news,” Sandy Mulcahy told Seldin. “You, sir, will be responsible.”
Pitkin County Sheriff Joe DiSalvo, who will ultimately be charged with enforcing an eviction if it comes to that, has said repeatedly on the record that he does not anticipate, nor will his office engage in, any sort of armed standoff. Further, Pitkin County law enforcement does not have a Special Weapons and Tactics unit.