Judge rules in Aspen Skiing Co.’s favor, bans Lee Mulcahy from Four Mountain Sports
May 6, 2017
Three days after losing Aspen's mayoral contest, local artist and self-proclaimed activist Lee Mulcahy lost again Friday, this time to Aspen Skiing Co. in a court trial.
Pitkin County District Judge Chris Seldin ruled in Skico's favor that Mulcahy cannot set foot in its two Four Mountain Sports stores that sell public-bus tickets to the Maroon Bells, saying there was not enough evidence showing the retailers "perform a virtual public function."
Seldin's decision, delivered after a two-hour bench trial, came four weeks after he issued a mixed order lifting Skico's ban of Mulcahy from the public lands where it runs its snow sports and recreational operations. The judge, however, upheld Skico's ban of Mulcahy on its private properties such as The Little Nell hotel, Limelight Hotel and Gondola Plaza.
Skico hammered Mulcahy with the ban in January 2011, when the company also fired the 15-year ski instructor for what it said were performance issues and violation of company policies. The ban was due to Mulcahy's distribution of pamphlets promoting a meeting over Skico's treatment of rookie ski instructors.
Mulcahy sued Skico, claiming the ban undercut his rights to free speech and Seldin agreed, in part, in his ruling made April 6.
In that order, Seldin said his removal of Skico's ban on public lands was because it compromised Mulcahy's rights to exercise free speech on the U.S. Forest Service properties that Skico operates.
Meanwhile, Seldin set the Four Mountain Sports matter for trial.
That's because he wanted more information about the arrangement between the Skico-owned Four Mountain Sports and the Roaring Fork Transportation Authority, a tax-supported entity that operates a bus service throughout the valley, including to the immensely popular Maroon Bells during the summer and fall seasons.
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The judge's most pressing question was if the tickets were sold exclusively at Four Mountain Sports, which would make the stores a "virtual public function because they are the only place to buy the Maroon Bells tickets," he said, noting "the bus is the primary way people can get to the Bells, which is public land, and not only public land, but probably the most popular destination in the state except maybe Rocky Mountain National Park."
RFTA officials, however, did not testify in the trial, leaving the judge to sort out Mulcahy's words against those of Derek Johnson, Skico's managing director of its rental-retail operations, and Jim Laing, vice president of human resources.
Mulcahy, who is not an attorney, represented himself. He also testified that he had heard the tickets would only be available this summer, like it has the two past summers, at the Four Mountain Sports at the base of Aspen Highlands and the one in downtown Aspen. Johnson said RFTA also would be selling the tickets at Rubey Park Transit Center this summer.
That left Seldin with little to base his decision on, other than hearsay.
"Nobody has given me the witness I really need today, and that is someone from RFTA, the Forest Service or both," Seldin said.
The burden of proof fell on Mulcahy because he was the plaintiff, prompting Seldin to rule in Skico's favor.
"The court doesn't believe it has a sufficient record to determine whether these Four Mountain Service Sports really do a virtual public service," the judge said.
Following the trial, RFTA financial director Michael Yang confirmed with The Aspen Times that bus tickets to the Maroon Bells will be sold from Rubey Park this summer in addition to the Four Mountain Sports outlets.
Because Rubey Park underwent a major redevelopment the past two years, Maroon Bells tickets were not sold there, he said.
Mulcahy spent much of the trial trying to establish a link of corruption that trickled from Skico's ownership family, the Crowns of Chicago, all the way down to its daily operations as well as Aspen government.
Mulcahy, who mustered nearly 17 percent of the vote in losing to incumbent Steve Skadron in the city's mayoral election earlier this week, also took barbs at Skico's legal team, saying they could not be trusted.
Seldin oftentimes had to remind Mulcahy that his litany of issues weren't relevant to the dispute at hand. Even so, Mulcahy kept poking his adversaries with insults and allegations.
His remarks at trial sparked a dust-up with Skico's lead counsel, Ed Ramey of Denver, during a court recess. Mulcahy even once tried to shake Ramey's hand, but was refused.
After the trial, Mulcahy offered another handshake that Ramey reluctantly accepted. Skico associate general counsel David Clark, however, refused Mulcahy's overture.