A judge Tuesday refused to lift his stay of judgment against Burlingame resident Lee Mulcahy, ruling that he must first be allowed to try to bring the case involving violations of affordable-housing rules to the U.S. Supreme Court.
With Judge Chris Seldin of Pitkin County District Court and the Colorado Court of Appeals having ruled in favor of the Aspen-Pitkin County Housing Authority, which sued Mulcahy in 2015, and the Colorado high court declining to hear the case, Judge Seldin wrote that he agrees with APCHA that the defendant’s “path on appeal has significantly narrowed.”
But “the United States Supreme Court still has appellate jurisdiction over this Court,” the ruling says. “Given the unique facts of this case — Mulcahy built the house himself — and the irreparable injury involved [Mulcahy being forced to sell the home], the Court declines to lift the stay.”
APCHA in 2015 sued Mulcahy after determining he violated affordable-housing mandates related to employment and residency. Judge Seldin the next year ruled in the housing authority’s favor, finding that Mulcahy failed to document his compliance with the guidelines or request a hearing in front of APCHA’s board. The state appellate court upheld the ruling. Mulcahy has contended he tried to show compliance, albeit after the authority’s deadlines because, in part, he had traveled to Africa as part of a religious mission. Tuesday’s ruling allows him to stay in the home that he and his late father largely built themselves until the nation’s highest court determines if it will hear the matter.
Mulcahy, who is suing APCHA in federal court, so far owes the authority $18,400 in attorney and legal fees, Judge Seldin ruled in July.
In May, APCHA’s attorney, Tom Smith, filed a motion to vacate the stay of judgment.
“While this has not been addressed by the appellate courts in a published opinion, it is arguable that the stay is automatically dissolved based on the affirmance of the District Court’s judgment,” Smith wrote. “While Defendant Mulcahy is entitled to seek a writ of certiorari in the U.S. Supreme Court, based on the Considerations Governing Review on Certiorari contained in … the U.S. Supreme Court Rules, it is highly likely that any such petition would be denied.”
The motion also says there is no compelling reason for the high court to grant a “frivolous and groundless” petition and that this case does not involve a federal question.
Based on all of that, “this Court also should conclude that any such petition would be submitted only for the purpose of delay, in which case the stay should be terminated,” Smith wrote. “Mr. Mulcahy must not only succeed, against all odds, in having a petition granted by the U.S. Supreme Court, but he must also prevail on the merits of the underlying case by convincing the U.S. Supreme Court that the Colorado District Court, Colorado Court of Appeals and Colorado Supreme Court were in error. There is no substantial possibility that either of these will occur.”
Mulcahy’s attorney, Jordan Porter of Denver, responded in June, writing that the stay should not be lifted because his client has not exhausted all of his appellate rights and has posted a monetary bond required by Judge Seldin to stay the initial judgment while the appellate process plays out. He also argued that Mulcahy would be irreparably harmed because enforcement of the judgment would force him to list the home for sale, effectively evicting him and his 80-year-old mother.
Mulcahy “acknowledges that the U.S. Supreme Court grants certiorari in only a small number of cases; however [he] has repeatedly alleged deprivation of his due-process rights throughout this action, including in his answer where he specifically alleged APCHA violated [his] ‘constitutional right to due process.’”
Mulcahy submitted to Judge Seldin over 2,000 signed petitions, seeking a public hearing “on our forced government eviction from the home we built with our own hands,” he wrote. “Aspen City Hall and its mayor refused to put them in the public record, despite multiple requests.”
The judge acknowledged receiving the signatures, collected outside Aspen City Market and city hall, but didn’t do anything with them.
“There being no apparent action requested of the Court, and no basis of which the Court is aware for it to hold a local-government-style public hearing (which appears to be what Mulcahy requests), no action is taken,” the order says.