Lee Mulcahy wants jury, Aspen Skiing Co. doesn’t
June 6, 2013
Aspen Skiing Co. hopes to prevent its arch-nemesis, former ski instructor Lee Mulcahy, from pleading his case to a jury of Aspenites in an August civil-litigation trial.
Skico attorneys from the Denver firm of Heizer Paul Grueskin LLP filed a recent motion asking a judge to decide the case and deny Mulcahy's request for a jury trial.
Skico's motion lays out a legal argument asserting that Pitkin County Judge Daniel Petre has the discretion to determine if a jury or the judge himself should hear the matter.
"Plaintiff is not entitled to a trial by jury in this action," said the motion by attorney Edward Ramey. Mulcahy "stated that he wishes to have this case tried to a jury irrespective of undersigned counsel's concerns," the Skico motion said.
A jury trial is scheduled to start Aug. 19. The question of whether a jury will be used could be settled in a July 22 trial-management conference.
Mulcahy filed the lawsuit April 16, 2012, against Skico and two members of the couple that owns it, Jim and Paula Crown. (The Crowns, whose primary residence is in Chicago, have never been served with notice of the litigation so they haven't been part of the litigation thus far, according to the Skico attorney.)
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Mulcahy alleges that Skico has violated his First Amendment rights by banning him from its four ski areas plus the company's base-area properties. The ban includes public lands that Skico leases. Mulcahy passed out fliers critical of Skico wages while protesting at Skico's Little Nell Hotel during Christmas week 2011.
The company and Mulcahy, once one of Skico's top ski-school instructors, are at odds over his firing. Skico says he violated company policies. Mulcahy counters that he was fired for criticizing pay for rookie instructors and talking to colleagues about forming a union for ski instructors.
In the lawsuit, Mulcahy contends that the Skico ban from its property unconstitutionally burdens his rights of expression. He wants the ban to be declared void and Skico prohibited from enforcing it. He seeks reimbursement of legal fees and the cost of the lawsuit plus $1 in punitive damages "as are determined by the enlightened conscience of an impartial jury."
Skico's attorney says Mulcahy's requests are equitable in nature rather than legal. Therefore, he isn't entitled to have the case heard by a jury, the motion says.
Mulcahy is representing himself in the case. He has a separate civil case against Skico President and CEO Mike Kaplan for allegedly libeling him through statements made when Mulcahy was fired in 2011. In that case, Skico attorneys are attempting to block Mulcahy's efforts to record a deposition of Kaplan that will be made before the trial.