Petition for Writ of Certiorari — Lee Mulcahy, Petitioner v. Aspen Pitkin County Housing Authority

No.

3n the

'upremè Court of the Liniteb &tatS

LEE MULCAHY,

Petitioner,

V.

ASPEN PITKIN COUNTY

HOUSING AUTHORITY ("APCIIA"),

Respondent.

On Petition For Writ Of Certiorari

To The Colorado Court Of Appeals

PETITION FOR WRIT OF CERTIORARI

LEE MuLCAHY, PaD., Pro Se

53 Forge

Aspen, CO 81611

(970) 429-8797

leemulcahyphd@gmaiI.com

1

QUESTIONS PRESENTED

Can •a governmental agency initiating litigation,

by virtue of the exhaustion doctrine, be relieved of

its obligation to prove the elements of its claim

against a "class of one", even when that action is

not brought under the Administrative Procedure

Act, and even when the trial court has acknowledged a dispute as to material facts?

Whether the process APCHA employed, that is, depriving an individual of their home and property

without a hearing at the administrative or court

level, violated my constitutional rights to due process and equal protection of the laws under the 5th

and 14th amendments to our Constitution.

11

LIST OF PARTIES

All parties are listed in the caption.

RULE 29.6 STATEMENT

None of the petitioners is a nongovernmental corporation. None of the petitioners has a parent corporation or shares held by a publicly traded company.

111

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................i

LIST OF PARTIES ..............................................

ii

TABLE OF AUTHORITIES .................................vi

OPINIONS BELOW .............................................

1

STATEMENT OF JURISDICTION .....................1

CONSTITUTIONAL PROVISIONS INVOLVED

1

STATEMENT OF THE CASE..............................2

Introduction ...............................................2

Deed Restriction ........................................5

APCHA's Compliance Letters and Notice

of Violation.................................................5

District Court Lawsuit and Appeal ...........9

REASONS FOR GRANTING THE WRIT............12

I. The process APCHA employed, that is, deriving an individual of their home and

property without a hearing at the administrative or court level, violated my constitutional rights to procedural due process.......12

Neither APCHA Nor the District Court

13

Followed Colorado Court Procedure

APCHA's NOV Was Issued Prematurely and in Violation of their Own

14

Guidelines, and thus, Was Unlawful

tt4

TABLE OF CONTENTS

Continued

-

Page

APCHA's Actions Were Arbitrary and

Capricious and Singled Mulcahy Out

For Disparate Treatment And Retaliation.......................................................18

Decision Below Conflicts with Haines

etai. ..................................................... 20

A Governmental Agency Initiating Litigation, by Virtue of the Exhaustion Doctrine,

Should Not Be Relieved of its Obligation

to Prove the Elements of its Claim Against

a "Class of One," When that Action Is Not

Brought under the Administrative Procedure Act and When the Trial Court Has

Acknowledged a Dispute as to Material

Facts...........................................................21

This Is An Ideal Vehicle To Promote Peace

and Civil Society Preventing Another Government Home Invasion or Another "Ruby

Ridge........................................................... 26

CONCLUSION.....................................................27

Evej4

1a

APPENDIX A

September 14, 2017 Case No. 2016CA1351

Colorado Court Of Appeals (No. 16CA1351

Pitkin County District Court No. 15CV30150)

Judgment Affirmed ..........................................App. 1

1'A

TABLE OF CONTENTS

Continued

-

Page

APPENDIX B

June 3, 2016. Case 2015CV30150 District

Court, Pitkin County, Colorado summary

judgment and specific compliance in plaintiff's favor .......................................................App. 16

APPENDIX C

August 8, 2016. Case Number: 2015CV30150

District Court, Pitkin County, Colorado declining defendant's motion for reconsideration..................................................................App. 38

APPENDIX D

December 3, 2015. Case 2015CV30150 District

Court, Pitkin County, Colorado Order to set

case management conference ........................App. 41

APPENDIX E

April 30, 2018. COLORADO SUPREME

COURT No. 175C781 (Court of Appeals Case

No. 16CA1351) Petition for Writ of Certiorari

DENIED. EN BANC ......................................App. 44

vi

TABLE OF AUTHORITIES

Page

CASES

Conley u. Gibson, 355 U.S. 41 (1957) ..........................20

Dioguardi v. Durning, 139 F.2d 774 (2d Cit 1944).......21

Dluhos v. Strasberg, 321 F.3d 365 (3d Cit 2003) ........20

Giles v. Commissioner, T.C. Memo. 2005-28, 89

T.C.M. (CCII) 770 ......................................................6

Haines v. Kerner, 404 U.S. 519 (1972) ..................20, 21

Jones v. Bock, 549 U.S. 199 (2007) ..............................22

Marmolejo u. United States, 196 F.3d 377 (2d Cir.

1999) ........................................................................20

McCarthy v. Madigan, 112 S.Ct. 1081 (1992) ............23

Olmstead v. United States, 277 U.S. 438 (1928).........21

People u. Bergerud, 223 P.3d 686 (Cob. 2010)............20

People ex rel. Commissioner of Agriculture v

Webster, 570 P.2d (Colo.App.1977)..........................22

Precision Instrument Mfg. Co. u. Auto. Maint.

Mach Co., 324 U.S. 806 (1945) ...............................21

Truax v. Corrigan, 257 U.S. 312 (1921) ......................12

Village of Willowbrook u. Olech, 120 S.Ct. 1073

(2000) .......................................................................19

STATUTES

§ 24-4-106(3), C.R.S. ................................................... 22

§ 24-4-102(1), C.R.S. ................................................... 22

vii

TABLE OF AUTHORITIES

Continued

-

Page

OTHER AUTHORITIES

APCHA minutes, https:flwww.apcha.orglAgendaCenterfViewFile/AgendaL050420 16-32 .............19

APCHA minutes, May 18, 2016 https://www.apcha.org/AgendaCenterfViewFile/Agendal_

05182016-33) ...........................................................20

Carolyn Sackariason, Aspen Daily News, August 2, 2018. https://www.aspentimes.coml

news/locaL/aspens-affordable-housing-boardleft-in-dark-about-changes- ......................................4

Curtis Wackerle, Aspen Daily News, Feb. 17,

2018. https://bit.ly/2ElYfcP .......................................3

Curtis Wackerle, Aspen Daily News, Feb. 7,

2018. https://bit.ly/2Ny3cV9 .....................................4

Rick Carroll, Aspen Times, April 30,2018. https:ll

www.aspentimes.com/news/local/coloradosupreme-court-will-not-hear-mulcahy-caseover-aspen-home-ownership! ....................................3

RULES

APCHA Guidelines, 2014, https://www.apcha.org/

ArchiveCenter/ViewFile/ItemJ109 ..........................16

APCHA Master Deed Restriction Agreement .............5

Colorado Rules of Civil Procedure 16(b) ....................13

Sec. 1.183-21(a), Income Tax Regs. .............................. 6

viii

TABLE OF AUTHORITIES

Continued

-

Page

CONSTITUTIONAL PROVISIONS

U.S. Constitution, Fifth and Fourteenth Amendments.......................................................................27

PETITION FOR WRIT OF CERTIORARI

Lee Mulcahy respectfully petitions for a Writ of

Certiorari.

OPINIONS BELOW

The denial of my writ of certiorari by the Colorado

Supreme Court and the modified unpublished opinion

of the Court of Appeals is unreported and found at Appendix, App. E and A, respectively. The initial order of

Pitkin County district court judge Chris Seldin is

found at Appendix, App. B. The order denying Edward

Lee Mulcahy's timely motion for reconsideration is at

Appendix C. The Delay Reduction Order and Order to

Set Case Management is at Appendix D.

STATEMENT OF JURISDICTION

The Colorado Supreme Court denied the petition

for writ of certiorari on April 30, 2018. The jurisdiction

of this Court is invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const. amend. V, which, in pertinent part, pronor be deprived of life,

vides: "No person shall be

liberty, or property, without due process of law;.

.

.

.

.

.

U.S. Const. amend. XIV; § 1, which, in pertinent

deprive any person

part, provides: "No State shall

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws."

.

.

.

STATEMENT OF THE CASE

"The tree of liberty must be refreshed with the blood

of tyrants and patriots." Thomas Jefferson.

-

A. Introduction

"This case is one for breach of contract." App. 16.

The eviction from our self-built house centers around

the age old battle between liberty and petty tyranny. I

love and am devoted to our community. Recently, we

attempted to bring over 2000 signatures that my family collected in front of City Hall pleading with Aspen's

elected politicians for a public hearing. Defendant Lee

Mulcahy's Petitions from Citizens for a Public Hearing,

1-276, September 17, 2018. Recently, the Chairperson

of Aspen Pitkin County Housing Authority ("APCHA")

informed all present that, according to their new public

comment policy, we could not criticize the Board, the

staff or their attorney or we would be removed. I questioned the constitutionality of that and was removed.

This didn't happen in China but in Aspen, Colorado.

I am an Eagle Scout who has volunteered thousands of hours to my community and church; my Mom

3

is a Sunday School teacher. The maximum penalty for

contempt of court for not selling in Colorado is six

months and if allowed, I will gladly serve the six

months ofjail time. If we refuse to sell, APCHA's attorney told the Aspen Times, "APCHA could seek a court

appointment of a receiver to list the property for sale,

or it could seek a judgment conveying the home to APCHA." See https://www.aspentimes.com/news/locall

colorado-supreme-court-will-not-hear-mulcahy-case-overaspen-home-ownership! November's upcoming election for Pitkin County Sheriff presents a stark divide:

the current sheriff told the newspaper he would never

allow a forced eviction of the Mulcahy's but his challenger stated he would send in a S.WA.T. team to remove us. I will defend our home with my life. See

https:!/bit.ly!2ElYfcP

Aspen's reputation as a company town is highlighted by these facts. Aspen's population is 6871. Aspen Skiing employs over 4000 people and is owned by

the billionaire Lester Crown who admitted in court to

bribing public officials. I filed a successful wage theft

complaint with the Colorado Department of Labor and

filed two complaints with the National Labor Relations

Board that resulted in settlements. DCM1 2.

APCHA, a multi-jurisdictional housing authority,

controls nearly 3000 units of deed restricted housing

in and around a town of less than 7000. Some "units"

"DCM" refers to Defendant's Cross Motion for Judgment on

the Pleadings and Opposition to Plaintiff's Motion for Summary

Judgment and Incorporated Brief, March 24, 2016.

In

are four bedroom homes. The current sheriff told my

family it's not American for me to be punished for

speaking out. In the last election as a conservative Republican, I ran against the current mayor; a Democrat,

losing overwhelmingly in a two man race. See

https:/fbit.ly/2Ny3cV9

I purchased land in Aspen in 2006 (the "Property")

in a lottery for the sale of seven undeveloped lots that

were part of AFCHA's affordable housing inventory

with the expectation that we would build our own residence on the transferred plat of land. App. 16. APCHA

is currently being reorganized to contain elected

officials for greater accountability. See https://www.

aspentimes.comlnewsllocallaspens-affordable-housingboard-left-in-dark-about-changes-afoot! Notably, developing the Property represented such a difficult and

cumbersome task that 23 previous AIPCHA qualified

buyers had declined to purchase the Property in the

lottery process prior to the opportunity falling to my

family. DCM 2.

In order to save costs, I. acted as the general contractor, electrician, plumber; tiler; carpenter etc

on the residence. In effect, with the help of my father;

who had a stroke on the Property and died in 2015,

my family built the residence with our own hands and

we devoted all available funds and time to our home.

MR 2.

.

2

MR refers to Pro Se Defendant Edward Lee Mulcahy, Jt's

Motion to Reconsider and to Alter Judgment and Brief, June 16,

2016.

I'm an artist with both an Aspen business license

and chamber of commerce membership; I'm no lawyer.

We finally obtained a certificate of occupancy ("CO")

several months after the City's lawsuit was filed in order to live and raise children in the dreamhouse we

built. App.19-20; DCM 6; Mulcahy affidavits.

The Deed Restriction

"After the lottery but before purchasing the Property, Mulcahy agreed to abide by the County's Master

Deed Restriction Agreement" ("Deed Restriction").

App.2. "The Master Agreement placed various obligations on Mulcahy including that he be employed in the

county and that he use the house as his primary residence." App.2.

APCHA's Compliance Letters and Notice of

Violation

On July 17, 2015, having owned the Property for

approximately 9 years, having worked non-traditional

employment jobs for 4 years, I received a "1st compliance letter" from Julie Kieffer, AFCHA's "Qualifications

Specialist," notifying me of six potential violations of

the Guidelines. App.18; DCM 3; MR 2. It was triggered

by an anonymous complaint. "The letter erroneously

referred him to Part II, §3 of the APCRA Guidelines,

which refer to rental rather than purchased housing."

App. 18.

For years, I was under the impression that my employment activities, particularly my home construction

and artwork activities, although non-traditional, would

satisfy the employment requirements in APCHA's

deed restrictions. [See Cues a Commissioner, T.C.

Memo. 2005-28, 89 T.C.M. (CCH) 770, 775 (indicating

an artist's activities qualify as business activities

where done with the objective of earning a profit); Sec.

1.183-21(a), Income Tax Begs. (indicating only an objective to earn profit is required, "a reasonable expectation of profit is not required")]. DCM 2,3.

Ms. Kieffer informed me that my construction

work on the home would not be considered either as

work nor be counted towards the value of the home.

Ms. Kieffer also refused to consider the hundreds of

hours I spent running for State Senate or Aspen School

Board. Ms. Kieffer requested copies of my tax returns

as evidence of income from my property management

and artistic efforts. App. 19; PSD3 4-6; MR 3; DCM 4.

Despite the first non-compliance letter indicating

a 60 day period to comply until September 15th,

Ms. Kieffer responded by sending a "2nd compliance

letter" to me on August 5, 2015. The contents of this

letter were essentially identical to the first compliance

letter (including the erroneous direction to an incorrect

section of the APCHA guidelines); however, it also inaccurately stated in its final paragraph that it was a

first compliance letter. App. 18-19. Although still listing

six potential violations, the letter only requested

"PSD" refers to Pro Se Defendant Lee Mulcahy's Reply to

Plaintiff APCHA's Memorandum Brief in Opposition to Motion

for Stay Pending Appeal, or in the Alternative, for an Order Requiring a Supersedeas Bond, August 31, 2016.

7

documentation confirming I was meeting the residence

and employment requirements. As with the previous

compliance letter, the second letter gave me 14 calendar days to respond and 60 calendar days to fully resolve the issue. Id. When I was unable to locate copies

of my tax returns, I informed Ms. Kieffer by email stating I had requested copies from the IRS and would forward when received. MR 3.

After receiving the second letter, I contacted Ms.

Kieffer who again assured me that she was only concerned with determining whether I met the employment requirements. Furthermore, I informed both Ms.

Kieffer and APCHA's executive director that I would

be escorting my 80-year-old mother on another Kenya

mission trip in light of my father's recent passing,

would have no internet access in rural Kenya, would

be involved in foreign exhibitions of my artwork in

both Nairobi and Berlin, and finally, would provide the

records documenting my employment upon my return

in mid-October. Notably, before I departed, I again

spoke at our local Rotary about our clean water efforts

and sat next to APCHA's executive director who indicated not to worry. DCM 4; MR 3; Mulcahy affidavits.

On August 25, 2015, twenty days into the sixtyday cure period identified in the second compliance letter and in contradiction of their own guidelines, Ms.

Kieffer issued a notice of violation ("NOV") prematurely to me. The NOV set a deadline of September 9,

2015, to either: (1) list the Property for sale; (2) document my compliance with the residence and employment requirements of the Deed Restriction; or (3)

ru

[I

request a hearing with APCIIA's board of directors.

App.3,19; DCM 4-5; MR 3.

On October 1, 2015, Ms. Kieffer sent a "Final Letter" demanding that we sell the Property for

$180,481.00, the price of the land alone, although the

Property now contained a nearly completed home then

valued over $700,000 by the Pitkin County Tax Assessor. App.4; Mulcahy affidavits; DCM 4-6; MR 3.

Upon my return from our humanitarian Kenyan

mission where I plumbed and laid water pipes, I contacted Ms. Kieffer who again assured me APCHA was

only concerned about my compliance with the employment requirement. Pro Se Defendant Lee Mulcahy's

Motion for Stay Pending Appeal, 2, August 10, 2016.

"Notwithstanding the passage of the September 9,

2015 deadline" and acknowledging Internal Revenue

Service guidelines pertaining to employment for artists, "Kieffer continued to communicate with Mulcahy

concerning evidence that might establish his compliance with the employment requirements of the Deed

Restriction." App.19; MR 3, 10; DCM 4-6.

Ms. Kieffer sent an email on October 14, 2015, describing additional documentation that could establish

my employment as an artist and agreed to a meeting

on October 21, 2015. When I took the requested documentation to Ms. Kieffer's office, I was met by APCIIA's deputy director who refused to accept or review

any of the records on the basis that I had lost my right

to respond to the NOV and, further, indicated that if I

cu

did not list my home for sale, APCHA would sue me.

MR 3; DCM 4-6; Mulcahy affidavits.

D. District Court Lawsuit and Appeal

In its district court action filed December 2, 2015,

APCHA asserted a claim for breach of contract and requested specific performance ordering me to sell the

Property at a price to be determined by APCHA.

App.16; MRS.

The court entered two orders relevant to this appeal—an order granting AFCHA's motion for summary

judgment and an order denying my motion for reconsideration. In the first order,the district court concluded that summary judgment was appropriate

because "he has not complied with the employment requirements of the Deed Restriction, though he evidently is making efforts to do so through employment

with High Mountain Taxi and the Aspery School District." App.17. Furthermore, the court stated: "In light

of his admission to this violation, it is unnecessary for

the Court to address the other violations APCHA

claims." App.33.

The court also held that I failed to exhaust my administrative remedies before APCHA. Together, reasoned the court, those two findings warranted

summary judgment in favor of APCHA. App.26-27.

"Summary judgment is a drastic remedy, to be granted

only when there is a clear showing that the controlling

standards have been met." App.20. Furthermore, the

court stated, "Even where it is 'extremely doubtful'

10

that a genuine issue of material facts exist, summary

judgment is inappropriate." Id.

In my motion for reconsideration, I stated that I

"never made such an admission." App.38-39; MR 4,12.

What I admitted to is "having worked the same two

jobs for the past six years, in addition to creating, marketing, and exhibiting art." MR 12. I had no idea that

those jobs, besides all the work on my house, did not

"qualify" as complying until informed by APCHA in the

summer of 2015. Furthermore, my motion for reconsideration stated:

Mr. Mulcahy has remained adamant in his belief that his work as an artist more than meets

the employment requirement. (See Crossmotion (DCM), 1917, 10, 13; Surreply 1919, 14,

15 Mulcahy affidavits). He has also argued

that Plaintiff's failure to determine what criteria it would use to qualify his art until October 2015, well after the expiration of any

appeal period, together with its refusal to then

review the documentation proffered, is additional evidence of Plaintiff's bad behavior. In

addition, Mr. Mulcahy has never argued that

his compliance did "not. matter". The facts

show that compliance mattered very much to

him; so much so that when Plaintiff disqualified both of his long-term jobs, he immediately

sought qualifying employment and thereafter

started working as a cab driver and substitute

teacher. (See Crossmotion (DCM) ¶28, Surreply T114,15; Mulcahy affidavits). MR 4-5.

11

In its second order denying my motion for reconsideration, the court disavowed its earlier conclusion

that I violated the Deed Restriction by failing to maintain qualifying employment, explaining that summary

judgment in favor of APCHA was still proper, but not

based "on Mulcahy's compliance or noncompliance

with the work requirement, or on any of the other" requirements of the contract. App.39. The trial court's

second order thus recognized the existence of a genuine dispute of material fact as to my alleged failure to

perform on the contract. App.38-39. The court again

declined to address the residency violation of the Deed

Restriction. MR 6,7,13.

Notwithstanding its recognition of a genuine dispute of material fact, the trial court persisted in believing thy failure to exhaust administrative remedies was

dispositive of every claim in the complaint. For the

same reason, the trial court denied my cross-motion for

judgment on the pleadings and ignored my affirmative

defenses.

The trial court expressed "sympathy" for the confusion caused by APCHA with its ambiguous compliance letters and communications with Ms. Kieffer.

App.32,36. In its order denying my motion to reconsider, the court acknowledged that "the issues that

gave the court some pause in this case were Mr. Mulcahy's unclean hands and estoppel defenses." App.40.

Nevertheless, the court barred all affirmative defenses

on the grounds that I had failed to exhaust administrative remedies because I failed to request a hearing.

App .39.

12

The Court of Appeals affirmed the lower court's order and opined that "a court lacks subject-matter jurisdiction over an action" where administrative

remedies were not exhausted and, further specifically

opined that the "exhaustion doctrine imposes a jurisdictional bar that prevented the district court from

considering Mulcahy's defenses." App.51 9. The Colorado Supreme Court recently denied certiorari. App.44.

REASONS FOR GRANTING THE WRIT

1.

The process APCHA employed, that is, depriving an individual of their home and

property without a hearing at the administrative or court level, violated my constitutional rights to procedural due process.

Chief Justice William Howard Taft explained the

purpose behind the due process clauses in Truax v. Corrigan, 257 U.S. 312 (1921):

The due process clause requires that every

man shall have the protection of his day in

court, and the benefit of the general law, a law

which hears before it condemns, which proceeds not arbitrarily or capriciously, but upon

inquiry,and renders judgment only after trial,

so that every citizen shall hold his life, liberty,

property and immunities under the protection

of the general rules which govern society.

I repeatedly alleged deprivation of my due process

rights throughout this action, including in my answer

13

where I specifically alleged APCHA violated my "constitutional right to due process." App.30; Defendant

Edward Lee Mulcahy, Jr.'s Answer and Affirmative Defenses to Plaintiff's Complaint at 4-7, Feb. 22, 2016;

MR 11; DCM 11; PSD 4 (asserting Mr. Mulcahy "is being deprived his constitutional rights," he "was never

given even an opportunity for a court hearing.").

A. Neither APCHA Nor the District Court

Followed Colorado Court Procedure

By ignoring the December 3, 2015 order, both the

Court and APCHA violated Colorado court procedure

and my right to due process. APCHA was ordered to

set a case management conference "within 42 days after the case is at issue" as required by the state's Delay

Reduction Order and Order to Set Case Management

Conference. App.41-43. Furthermore, "Plaintiff shall

mail a copy of this order to all parties." App.42. Furthermore, the Colorado Rules of Civil Procedure

16(b)(2) specifically obligated APCHA, as the plaintiff

in the action, to set a conference. Nevertheless, no case

management order was ever entered in the case, discovery never commenced, and APCHA filed its summary judgment without a pro se defendant having an

opportunity to engage in discovery or otherwise have

an opportunity to fairly and fully defend against APCHA's claims. [See C.R.C.P. 16(b)(11) (indicating discovery commences upon service of a case management

order)]. The December 3, 2015 Order required a form

stating "The parties shall use this Form Case Management Order when preparing the proposed Case

IV

Management to be submitted to the court." Moreover,

it was to be signed by Judge Chris Seldin, APCHA and

myself and stated "Pursuant to rule C.R.C.P. 16(b), the

parties will discuss each item below." Moreover; it

states "pursuant to Rule 16(b)7 mediation or other

ADR will be completed by" a certain date. None of this

occurred. Neither mediation nor other ADR was ever

discussed. For these reasons alone, this Court should

remand.

B. APCIIA's NOV Was Issued Prematurely

in Violation of Their Own Guidelines,

and thus, Was Unlawful.

APCHA issued the non-compliance notifications

and the final letter "with full knowledge that she [Kieffer] had not yet determined the criteria for qualifying

Mr. Mulcahy's work as an artist in compliance with

their work requirement" in a shortened time frame.'

PSD 5; 13CM 13. With the final letter; Ms. Kieffer sent

an email acknowledging APCHA knew I was out of the

country. App.19; Defendant Edward Lee Mulcahy, Jr.'s

Answer and Affirmative Defenses to Plaintiff's Complaint, Feb. 22, 2016, 717. Importantly, in my answer, I

repeatedly asserted that the manner in which APCHA

In its Order, the Court stated: "Notwithstanding the passage of the September 9, 2015 deadline, Kieffer continued to communicate with Mulcahy concerning evidence that might establish

his compliance as with the employment requirements of the Deed

Restriction." App. 19. On October 14, 2015, Kieffer sent an email

stating that she had researched what I could show to establish

my work as an artist. [DCM 5; provided as Exhibit E with the

DCM.] She requested 8 items she needed to verify.

15

issued the compliance notifications constituted an "arbitrary and capricious denial of [Mr. Mulcahy's] due

process rights," and specifically alleged that APCHA

had violated my "constitutional right to due process."

App.30; Defendant Edward Lee Mulcahy, Jr.'s Answer

and Affirmative Defenses to Plaintiff's Complaint at 47, Feb. 22, 2016; MR 6-8.

The way APCHA approached the anonymous complaint was definitively in violation of their own

guidelines and worked to deprive me of a hearing on

the matter. Importantly, the July 17, 2015 letter explicitly states that I had "14 calendar days from the date

of this 1st Compliance Letter to respond and 60 calendar days. to resolve the issue." App. 18. I understood

that, based on my reading of the letter as well as Ms.

Kieffer's repeated representations that APCHA was

willing to work to resolve the issue, I had responded to

the letter thereby leaving 60 calendar days to resolve

the issue. DCM 4,5,13; PSD 5; MR 6-8. APCHA's own

guidelines in effect at the time, those amended and

adopted in January 2014, reflect these requirements

as well. Specifically, APCHA's 2014 guidelines detailing the investigation and enforcement procedure to be

followed where a complaint is received that an APCHA

property owner is in breach of the applicable deed restriction are as follows:

.

.

1. If a complaint is received, it is forwarded

to the Compliance Officer, who researches the

complaint. If staff finds grounds to move forward, the first compliance letter will be mailed

within 30 calendar days of receipt of the

16

complaint or if the bi-annual Affidavithas not

been returned. The bi-annual affidavit will be

treated as a compliance letter.

If the owner does not respond within

two weeks to the initial compliance letter, a

second compliance letter will be sent. The

first and second compliance letters will be sent

by regular mail.

If the owner does not respond to the second compliance letter within two weeks,

and/or if the compliance situation is not

fully resolved within 60 calendar days

from the date of the first letter, a Notice

of Violation (NOV) letter will be sent to the

owner. The NOV will provide the owner an option if they wish to dispute the violation by requesting a Board Grievance Hearing in

writing within 15 calendar days from the date

of the NOV letter. The NOV letter will be sent

by regular and certified mail. The APGHA will

also notify the Board when a NOV letter is

sent. For Board update purposes, the owner

will be referred to by a case number only, with

no mention of client name or address, and will

briefly outline the case.

[p. 25 APCHA's 2014 guidelines (emphasis added),

https://www.apcha.org/ArchiveCenter/ViewFile/Item/

1091. That is, the process outlined in APCHA's 2014

guidelines designates two types of procedures and

deadlines. A default-type escalation procedure whereby a first compliance letter is sent out; if no response

is received within two weeks then a second letter is

sent out; and, if no response to that letter is received

17

within two weeks, then a NOV letter will be sent out

finding an official violation of deed restrictions.

Alternatively, if a property owner does respond to

a compliance letter, then the default-type escalation

procedure stops and a notice of violation will be sent

out "if the compliance situation is not fully resolved

within 60 calendar days from the date of the first letter." Id. Accordingly, APCHA's 2014 guidelines indicate

that where a property owner is responsive to their

compliance letters and working with APCHA to either

resolve any issues or provide appropriate documentation, the property owner will have 60 days from the

date of the first compliance letter to resolve any issues

before a notice of violation officially finding a breach of

a deed restriction is issued. Id. Here, this is precisely

what I was doing, working with and responding to APCHA's letters to demonstrate compliance with the deed

restrictions. App. 18-19.

Importantly, the notice of violation was sent almost a full 30 days before the expiration of the 60

day time period I should have been entitled to as

delineated in the first July 17, 2015 compliance letter,

as stated in APCHA's 2014 guidelines, and based on

the fact I had responded to the first letter by contacting

Ms. Kieffer and had been working with APCHA to

resolve any issues. DCM 4-6; MR 2-5, 11-13. That is,

according to APCHA's own guidelines, because I responded to the first letter and was actively working

with APCHA, an official NOV should not have been

issued until at least September 15, 2015. Instead of

honoring that time period, APCHA sent a NOV

11.1

prematurely on August 25, 2015, giving me 15 days,

until September 9, 2015, to file a request for a hearing

with AFCIIA or otherwise lose my right to contest APCHA's findings. MR 3,5-7,13. Importantly, even the

September 9th administrative remedy final deadline

was before the expiration of the full 60 day period I was

allowed. MR 5-7.

C. APCHA's Actions Were Arbitrary and

Capricious and Singled Mulcahy Out

For Disparate Treatment And Retaliation

APCHA's Deed Restriction regarding residency

was a "catch-22." Defendant Edward Lee Mulcahy, Jr.'s

Answer and Affirmative Defenses to Plaintiff's Complaint, 2,3,4,6,7; MR 6,7,14; DCM 8,10,11. APCHA's selective enforcement in our community is infamous.

Currently, one of the seven lots with the same Deed

Restriction still does not have a permanent CO and another property received a final CO much later than

mine.

Paragraph 15 of the Deed Restriction is the "catch22" that gave APCHA its secret weapon, its own trump

card and states:

"In the event an Owner changes place of residence or ceases to utilize the Property or Unit

as his sole and exclusive place of residence

the Property or Unit MUST be offered for

sale.... An owner shall be deemed to have

by

changed his or her place of residence

residing on the Property or Unit for fewer

. . .

19

than nine (9) months per calendar year without the express written approval of the APCHA... ." [Complaint, 191

To strictly comply with the residency requirement was

nearly impossible. The buyers of the 7 lots had three

(3) months to transform our vacant lots into completed

residences with approved CO's from APCHA in order

to comply. None of us accomplished this. APCHA's current cause of action for breach of the residency requirement began to accrue on October 4, 2007, since the

Property was then still a vacant lot and not occupied.

DCM 8,10,11,13; MR 12-13. APCHA's ill will, its illegitimate animus and vindictive action is evidenced by

the fact that ALL of the other six vacant lot owners

were in violation of the deed restrictions regarding residency, APCHA did not sue the neighbors; APCHA

went after the whistleblower's family. MR 13-14.

In Village of Willowbrook v. Olech, 120 S.Ct. 1073

(2000) in a per curiam opinion, concluded that a landowner could assert a valid equal protection claim by

demonstrating that the plaintiff had become a "class of

one" when the plaintiff has been intentionally treated

differently from others similarly situated and there is

no rational basis for the differences in treatment.

In addition, APCHA's own website contains the•

minutes of the exact same situation which occurred

when Peter Gilman missed his NOV deadline of

December 24, 2015, by 4 days, but was given a hearing anyway May 4, 2016. (See APCHA minutes

https://www.apeha.org/AgendaCenter/ViewFile/Agenda/

20

05042016-32 and https:I/www.apcha.org/AgendaCenter/

ViewFile/Agendal_05182016-33)

D. Decision Below Conflicts with Haines

et at.

The district court denied my motion to amend

my answer,without having seen the amendment.

App.34-36. By doing so, the court misapprehended the

holdings of the Supreme Court of the United States regarding pleadings and claims of pro se litigants which

must be "broadly construed." People v. Bergerud, 223

P.3d 686 (Cob. 2010), citing Haines ix Kerner, 404 U.S.

519, 520-21 (1972) (holding the allegations of a prose

defendant to "less stringent standards than formal

pleadings drafted by lawyers"); Dluhos v. Strasberg,

321 F.3d 365, 369 (3d Cir. 2003) (stating the court must

liberally construe a pro se complaint and "apply the

applicable law, irrespective of whether the pro se litigant has mentioned it by name"); Marmolejo ix United

States, 196 F.3d 377, 378 (2d Cir. 1999) (per curiam)

(the papers of pro se litigants are construed liberally).

Furthermore, in reversing the dismissal of a pro se

claimant based on a 12(b)(6) motion, the Supreme

Court stated: 'We cannot say with assurance that Under the allegations of the pro se complaint, which we

hold to less stringent standards than formal pleadings

drafted by lawyers, it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim

which would entitle him to relief." Haines v. Kerner,

404 U.S. 519, 520 (1972), citing Conley v. Gibson, 355

U.S. 41,45-46(1957). "Accordingly. we conclude that

.

.

21

he is entitled to an opportunity to offer proof." Haines,

404 U.S. at 521. See also, Dioguardi ix Durning, 139

F.2d 774 (2d Cir. 1944) ("here is another instance ofjudicial haste which in the long run makes waste"). "Due

process requires opportunity to be heard." PSD 4.

II. A Governmental Agency Initiating Litigation, by Virtue of the Exhaustion Doctrine,

Should Not Be Relieved of its Obligation to

Prove the Elements of its Claim Against a

"Class of One", When that Action Is Not

Brought under the Administrative Procedure Act and When the Trial Court Has

Acknowledged a Dispute as to Material

Facts.

Conduct in violation of clean hands need not be illegal. Precision Instrument Mfg. Co. v. Auto. Maint.

Mach. Co., 324 U.S. 806, 815 (1945). A party seeking to

obtain an equitable remedy may be denied on the

grounds of unclean hands if her conduct violated principles of law, ethics, equity, or morality, even though the

claimant would have been entitled to the remedy absent her prior wrongdoing. Regarding unclean hands,

Louis D. Brandeis in Olmstead v. United States, 277

U.S. 438, 483-85 (1928) (Brandeis, J., dissenting)

stated:

The governing principle has long been settled.

It is that a court will not redress a wrong

when he who invokes its aid has unclean

hands. The maxim of unclean hands comes

from courts of equity. But the principle

22

Then aid is

prevails also in courts of law.

denied despite the defendant's wrong. It is deriled in order to maintain respect for the law;

in order to promote confidence in the administration ofjustice; in order to preserve the judicial process from contamination.

.

.

.

Exhaustion of administrative remedies is an affirmative defense; it is not a claim in and of itself. Jones

v. Bock, 549 U.S. 199, 212 (2007). I did not file suit in

district court; APCHA did. Because APCHA chose to

invoke the jurisdiction of the district court, APCHA

cannot then deny that there is jurisdiction over my affirmative defenses because I failed to exhaust my administrative remedies. The district court was not

reviewing an administrative action; it was considering

claims for breach of contract and declaratory judgment. APCHA did not file a complaint under the Administrative Procedure Act seeking to enforce a final

agency action—i.e., the October 1, 2015 Final Letter.

See § 24-4-106(3), C.R.S. ("lAin action may be commenced in any court of competent jurisdiction by or on

behalf of an agency for judicial enforcement of any final order of such agency."); § 24-4-102(1), C.R.S. ("Action' includes the whole or any part of any agency rule,

order,interlocutory order, license, sanction, relief, or

the equivalent or denial thereof, or failure to act."). APCHA made its choice to proceed in the district court.

And once that choice was made, "the district court

became clothed with exclusive jurisdiction to hear the

entire matter." See People ex rd. Commissioner of Agriculture v. Webster, 570 P.2d at 562 (Colo.App.1977).

23

APCHA was the plaintiff in the trial court, and

would have had the burden of persuasion at trial. It

therefore bore the burden of proving the absence of a

dispute of material fact as to every element of the

breach of contract claim. It failed to do so. I should be

allowed my day in court to demonstrate as an artist, I

was not in breach of the employment elements of the

Deed Restriction and to pursue my affirmative defenses to APCHA's claims.

The court of appeal's decision here plows new

ground with its holding that a governmental agency

initiating litigation is, by virtue of the exhaustion doctrine, relieved of its obligation to prove the elements of

its claim, even when that action is not brought under

the Administrative Procedure Act, and even when the

trial court has acknowledged a dispute as to material

facts.

The appeals court stated: "The exhaustion doctrine has some exceptions, none of which are alleged to

be present here." App.5. The Supreme Court identified

three circumstances which, if present, would weigh

against requiring exhaustion. The first occurs when requiring exhaustion would not otherwise allow the

plaintiff to avert irreparable harm. Second, exhaustion

is not required when the administrative remedy is

shown to be inadequate or would be futile. Third, exhaustion is not required when the challenge is to the

agency procedures themselves. McCarthy v. Madigan,

112, S.Ct. 1081, 1086 (1992). All three exceptions were

present. DCM 9-13; MR 10,13.

24

Going before an unelected APCHA board consisting of the Mayor's political appointees, many affiliated

with Skico in a town of 7000 where Skico employs over

4000 without a CO approved by APCHA would have

been futile and would have caused my family irreparable harm. MR 9,10. The district court stated "it appears

APCHA would have had to make an exception for Mulcahy." App.33. Nevertheless, the court ignored these

exceptions to exhaustion claiming that they "could

have been presented to APCHA's board". (chaired for

nearly two decades by the close friend of the City Manager). App.39. APCHA employees are under the jurisdiction of the City Manager and are paid by the City of

Aspen. In the 2015 election, I publicly supported the

perennially reelected Mayor's sole opponent. See httpsi/

www.aspentimes.com/news/torre-bests-skadron4naspen-rn ayoral-race-fundraising/ CORA requests and

the Mayor's statements in council reveal he meets regularly with the CEO of Skico which banned me permanently on the same day as I distributed a union flyer.

After nearly 7 years, the ban on public lands was finally ruled unconstitutional. Afterwards, APCHA

banned me from all their offices. Despite multiple requests, APCHA's chairperson refused to recuse himself

from settlement negotiations which were conducted in

closed-door executive sessions, where the community

was asked to leave. Mulcahy affidavits.

Bringing multiple, unsupported, contradictory, repetitive and illogical claims, APCHA used its laundry

list of violations as a politically motivated ruse used to

effectively paint me in the press as a layabout abusing

25

the privilege of affordable housing. That, coupled with

the enmity caused by my ongoing litigation with the

largest company in town, made it clear that APCHA's

conflicted appeals board would not have been favorable.

APCHA's unclean hands and arbitrary and capricious actions to evict my family strike at the heart of

fair dealing. In a contract, common sense says both

sides have to play fair. The clean hands doctrine manifests the principle that a party cannot seek equitable

relief or assert an equitable defense if that party has

violated an equitable principle, such as good faith.

APCHA and the Mayor continue to railroad my

family to prevent me from demonstrating that I was in

compliance with the employment requirements as an

artist. Aspen was built around the arts. "Notably, Mr.

Mulcahy holds a master's degree in 19th Century

French Art and Literature and a Ph.D. in humanities

and his artwork has been featured in various galleries

around the world including Berlin, Beijing... ." Defendant's Response to Motion to Vacate Stay of Judgment, 3, June 16, 2018. While we missed a deadline,

there are compelling reasons APCHA should be estopped from invoking the exhaustion doctrine to prevent me from showing compliance. This Court should

grant certiorari, and clarify that when an agency

chooses the judicial forum, a defendant has the right

to present his equitable defenses.

26

III. This Is An Ideal Vehicle To Promote Peace

and Civil Society Preventing Another Government Home Invasion or Another "Ruby

Ridge"

"Decency, security and liberty alike demand

that government officials shall be subjected to

the same rules of conduct that are commands

to the citizen. In a government of laws, existence of the government will be imperiled if it

fails to observe the law scrupulously. If the

government becomes a lawbreaker, it breeds

contempt for law; it invites every man to become a law unto himself; it invites anarchy."

Olmstead v. United States, 100 U.S. 1 19F (2d)

842, 848, 850 (1928) (Brandeis, dissenting)

My father, whose life-story was featured in many

articles, grew up on a Texas farm without running water or electricity and rose through hard work to become

the epitome of the American success story. He devoted

his life to helping others less fortunate in Kenya. Sadly,

he believed the American Dream is disappearing.

The constitutional protection of private property

rights in the United States is thought to promote economic prosperity and efficiency, as well as basic fairness and individual liberty. Ultimately, I have had no

ability at any level to present my defenses at a

hearing and contest APCHA's purported findings.

That is, APCHA's premature notice of violation deprived me of my due process rights at the administrative level and, then, APCHA turned around and used

that deprivation to assert, at the state court level, that

27

I failed to exhaust administrative remedies and, therefore, was not entitled to a defense against APCIIA's

claims at that level either. Put simply, I have had no

justice in this scenario. I have had no ability to

properly contest APCHA's findings which resulted in

an order compelling the sale of my home that my 83

year old mother resides in and will refuse to leave.

Our country was born out of an act of treason

against a government out of control. AFCHA acts with

impunity. Little people outside of Washington DC, especially in the West, feel our legal system has become

lawless and corrupt. We believe the common man has

no meaningful way for redress. My right to own physical property and right to due process before we are deprived of that .Property are protected interests under

the Fifth and Fourteenth Amendments to our Constitution and as such, we will defend our Property with

our lives, whatever it takes.

CONCLUSION

For the foregoing reasons, petitioner Lee Mulcahy

respectfully requests that this Court grant his Petition

for Writ of Certiorari.

Respectfully submitted,

LEE MULCAHY