A judge should vacate his ruling against a Burlingame resident and in the favor of the Aspen-Pitkin County Housing Authority because APCHA violated the man’s due-process rights, his attorney argues in a filing made Monday in Pitkin County District Court.
A ruling by Judge Chris Seldin in 2016 against Lee Mulcahy and in APCHA’s favor would force the sale of the Burlingame Ranch single-family home. That ruling was stayed, however, so Mulcahy could appeal. Mulcahy’s appeals failed at every level, including the U.S. Supreme Court, which declined to hear the case. APCHA is now requesting the stay be lifted, prompting Mulcahy’s latest motion.
APCHA in 2015 sued the outspoken artist after determining he violated affordable-housing rules related to hours of employment and residency. He has since criticized the housing authority for allegedly denying him due-process rights related to deadlines by which Mulcahy was required to seek a hearing before its board.
Monday’s filing by his attorney, Jordan Porter of Denver, elaborates on that. He wrote that APCHA employed a “default-type procedure” in deciding to sue his client, and disregarded its own regulatory guidelines by prematurely accelerating legal notice provisions while it knew Mulcahy was traveling. The motion also says APCHA failed to provide discovery, or pretrial evidence to be used at trial, and failed to schedule a case management conference as required by law.
“There are other things besides the case management [conference] that were definitively APCHA’s responsibility,” Porter wrote in an email. “Among them, a requirement to file a certificate of compliance and a requirement to provide initial discovery disclosures to Lee. APCHA’s actions, or lack thereof, taken together effect a complete denial of discovery. The due-process violation isn’t just limited to the failure to set a case management conference, that’s only a component of it, albeit a large one.”
Mulcahy at the time was representing himself, and Porter’s motion says that APCHA “ignored explicit and mandatory requirements, took advantage of Mulcahy’s pro se status, and completely deprived [him] of his right to investigate the claims alleged against him and seriously [handicapped] Mulcahy’s ability to fully and fairly defend against APCHA’s claims.”
Because Mulcahy responded to APCHA after it first contacted him about the alleged issues, the notice of violation it sent should not have been issued for 60 days, the filing says, citing housing authority guidelines. It instead issued the final notice of violation nearly a month before the expiration of the two-month period.
And Mulcahy “has yet to receive an explanation [about] why APCHA refused to accept much of his non-traditional employment as qualifying work despite Mulcahy meeting APCHA’s 1,500-hour Pitkin County employment requirement,” Porter wrote.
APCHA’s attorney, Tom Smith of Basalt, did not return a message Tuesday. But his recent response in Mulcahy’s federal lawsuit against the agency, which relates to similar due-process issues, does address the discovery matter.
In district court, APCHA moved for a pretrial judgment in its favor in 2016. Mulcahy filed a motion opposing that and wrote “that there was no genuine issue of material fact and that he was entitled to judgment as a matter of law,” Smith wrote. “If there was no genuine issue of material fact, there was no need for discovery.”
Mulcahy also apparently never requested discovery, or complained about that issue at the Colorado Court of Appeals and the Colorado Supreme Court, levels at which he had a lawyer.
“We are aware of no case where relief has been granted based upon the denial of discovery rights in the absence of a request to the trial court for such discovery,” Smith wrote.