(orig. pub. 10/1/2010)

I was the Craig, Colorado, City Attorney in 1993-94. In Sept. 1993, a crazy county court judge sent the sheriff to my office to arrest me for contempt for closing a real estate contract the City had every right to close. (See the “Supplement, 2/13/25,” below, for more details.) I was under no court order not to close it, although there was a private party, a billionaire stranger to the contract named Hyatt, represented by a guy named Kenny Kawcak, who had sought a TRO to stop it.

So I spent four months being hauled through contempt proceedings in Craig and Steamboat Springs. The City hired Larry Pozner to defend me. I chose him as my attorney, since he had a high profile as a defense attorney, even though I’d had Larry for Criminal Procedure at DU Law School and thought he was often unprepared for class. He also made us buy from him, for the course, a binder full of Xeroxed cases, all of which had the print cut off at least an inch on the right hand side, so you couldn’t even read them. Anyway, Larry kept promising me he was going to take depositions, do all this stuff to defend me, and he did not do anything at all (yet at the end sent a bill to the city for $12,000).

The date of my trial came and I was worried sick, because my attorney had not done anything to prepare. It was in Steamboat Springs before Judge Richard Doucette. The night before, Larry told me that the county court judge who’d cited me, Mary Lynne James, was willing to drop the contempt charge in exchange for an apology. (At first, I thought she would be apologizing to me, but he set me straight!) While Doucette was memorializing this agreement in open court, however, something strange occurred. The judge made a statement to Larry indicating he knew his personal plans, accompanied by a wink, which absolutely shocked me–I can’t believe I have forgotten exactly what he said, only that I was flabbergasted, because it indicated communication had taken place between them, when Larry had told me he had never done anything before Judge Doucette and did not know anything about him. 

We took a break in the proceedings, and I believed I was getting off in exchange for an apology, except that Larry made me sit down on a bench outside the judge’s chambers, while he went in to talk to him. I protested–I wanted to come, too, and had the right to do so–and Larry would not let me. I never saw the prosecutor go in, so this was an improper ex parte meeting between my attorney and the judge. When Larry came out, he said the judge had agreed to dismiss the contempt charge, but would be referring the matter to the Office of Attorney Regulation Counsel for discipline. I did not want to take this deal, then. It was not what I had agreed to. Larry got angry with me and MADE me take the deal. Because he was not prepared to go to trial, I had no choice but to give in. 

Larry had come to town wearing a long black coat, as well as carrying a black purse. I remember this because he wryly commented that Craig was not the sort of place where a man should be carrying a purse. I have thought about that purse in the past year and suddenly realized that there may have been cash in it with which Larry paid off the judge. 

Doucette was the judge who screwed Marvin Heemyer, by the way, the guy who then armored a bulldozer and destroyed buildings in the Town of Granby before (reportedly) killing himself. 

 The contempt matter in Craig was referred to OARC, as I’ve said, and it resulted in a Letter of Admonition, which I did not appeal. The LoA was, at that time, the lowest level of discipline, and confidential, such that I was entitled to say I had never received any discipline. Today, the LoA does not exist as a form of discipline: an attorney is referred to diversion, instead, and all record of the “offense” expunged. However, it existed in 1994, and so April McMurrey (nee Seekamp), the snotnosed whore who prosecuted me for four years, has presented it to the hearing board in an envelope every time as an aggravating factor in the string of groundless disciplinary cases she has pursued against me since 2006. Thus was “confidentiality” preserved.

Anyway, what I’ve realized from this (as well as when Judge David Lass winked at Victor Boog when he was on the stand in the Spring Creek Ranch matter, as I have detailed elsewhere) is that when your judge winks at an attorney, either yours or your opponent’s, pay attention. This nonverbal communication reveals, as unambiguously as an express verbal admission, that a secret understanding exists. In particular, it may mean the judge has been bribed.

***

A comment I made to my own post in June 2015: There’s another aspect to the contempt proceedings which is important. At the same time I was Craig City Attorney, I was litigating pro bono on behalf of Aspen Wilderness Workshop against the Colorado Water Conservation Board over its giveaway of 40% of the instream flow water right (ISF) in Snowmass Creek to the Aspen Skiing Company, to make snow with. The Craig City Council had permitted me to keep my own practice going on the side when it hired me, as long as there were no conflicts with the matters I handled for the City, and there was no conflict.

One of the members of the CWCB at the time was water lawyer Jim Lochhead, who had represented Craig in water cases a few times. When the contempt proceedings against me started, Lochhead came in as conflicts counsel to represent the City in the underlying TRO proceeding, Kawcak v. City of Craig. However, the county court judge had DISMISSED that case for mootness before initiating the contempt proceedings against me. Lochhead nevertheless entered an appearance in this DISMISSED case on behalf of the City of Craig and acted as though it were live, filing motions and billing the City for his fees. This added to my embarrassment, since he made it appear I was responsible for this expense, too (in addition to the fees of my own attorney Larry Pozner). Lochhead’s acts prolonged the case, keeping me twisting in the wind for months. I think it highly possible that Lochhead, in consultation with Gov. Roy Romer and my nemesis, water attorney David Robbins, did this in order to get me off the Snowmass Creek instream flow case, which I was handling on the side, pro bono. Romer himself was responsible for the CWCB’s act reducing its instream flow and both Lochhead and Robbins were members of the CWCB! It took me a long time to put all this together. The embarrassment did finally cause me to withdraw from the Snowmass Creek case: I feared I looked like a reprobate to my client, Aspen Wilderness Workshop, and to the Law Fund of the Rockies, which had brought me in on AWW’s behalf. My blog post about Snowmass Creek and the rewards given by Romer to people who were involved on the other side from me, such as Jim Lochhead, is here.

Supplement, 2/13/25: I didn’t explain how the contempt charge came about. What happened was that Craig was implementing an exchange, whereby the Division of Wildlife, which owned Elkhead Reservoir–which Craig was interested in acquiring for water storage–wanted to control hunting in an area in Routt County which was basically an enclave with no public access. Wealthy people, notably the gazillionnaire landowner, Hyatt, were killing bucks in there illegally, presumably for their racks. DOW got Craig to purchase a conservation easement across the lands of another owner, prophetically named “Grieve,” whose property abutted the enclave in a different location, and convey that to DOW, so DOW could use his property for access to the landlocked parcel where the bucks were. In return DOW conveyed Elkhead Reservoir to Craig. This confusing series of transactions I believe was arranged (before I came to Craig) to avoid a prohibition against DOW selling state property. There was no prohibition against an exchange. (Probably no authorization, either, but I have never looked into that.)

At 5 p.m. the evening before the closing, set in Rawlins, Wyoming, for 9 a.m. the next morning, I was served in my office with an application for temporary restraining order (TRO) to stop the closing by an attorney in Steamboat Springs named Bob Weiss, who said he represented Kenny Kawcak, whom we knew to be the agent for the disgruntled landowner, Hyatt. Weiss said the application would be heard at 8 a.m. the next morning in Steamboat Springs by Judge Kourlis, who at the time was a district court judge in Craig. So this made no sense, but the courts were closed for the day and Weiss did not answer his phone, so I could not get more information. I stayed up all night both preparing for the TRO hearing and finalizing the documents necessary for the closing. Early the next morning, Al Hays, the Craig finance officer, Don Birkner, city manager, and I traveled to the court in Steamboat Springs, where the clerk told us, at 8 a.m., that no hearing was scheduled. Bob Weiss was not present and Judge Kourlis was not in Steamboat. She was in Craig. So Weiss had led us on a wild goose chase.

The clerk was trying to call Weiss, who did not pick up, and I was very annoyed with that; said, “No–don’t; we’re leaving”–but because of the diversion to Steamboat we could not make our 9 a.m. closing in Rawlins. Don was able to reschedule the closing for later that morning after Tommy Grieve’s attorney, one Kermit Brown–who was also a pilot–offered to fly his private plane to Steamboat, pick us up, take us to his office in Rawlins, where we would do the closing, then fly us back to Craig. In the meantime, the damned court clerk in Steamboat by that time had reached Judge Kourlis in Craig, as well as Bob Weiss, and we had done a three-way call. Judge Kourlis disclosed a possible conflict–that her husband had had business dealings with Kenny Kawcak–which I chose not to waive, so she recused. Dumb move on my part, because then Mary Lynne James, the county court judge for Moffat County, came in as Judge Kourlis’s substitute. She set the TRO hearing for 2 p.m. that afternoon.

We felt we could do the closing despite having to return to Craig by 2 p.m., but the plane was very late, and when we got to Rawlins we were not provided a necessary exhibit to the conservation easement deed, which Grieve was supposed to supply. That was the baseline inventory. We sat there in Brown’s office for a long time because it was supposed to be delivered to us, but it wasn’t. I know now this omission was intentional. I was concerned about missing the 2 p.m. court setting in Craig, so I called the court and, speaking to the clerk, told her I was held up and wished to ask the judge for a continuance to 3 p.m. The clerk went to talk to Judge James, then came back and said, “Is this business related?” I said “yes,” and the clerk went to speak to the judge again, then came back and said she had granted the one-hour extension.

The baseline inventory still was not delivered. I finally stood up and announced that we would not close the contract, and Don and I got Kermit Brown to fly us back to Craig. At that point, however, Tommy Grieve offered to meet us at the airport at Baggs, Wyoming, with the missing baseline inventory. The closing then did go forward, at last, on the tarmac at the Baggs airstrip, a fierce wind whipping the pages of the documents while each of us signed on our knees, but it all got done. Don and I then got into the plane again, poor Don barfing into a bag the whole way; landed in Craig, where our secretary picked us up; and proceeded to the courthouse for the TRO hearing. I walked into court at 3:05 p.m. and moved to dismiss for mootness, since the contract was closed. Judge James granted the motion.

That was a Friday. On Monday morning, the sheriff arrived at my office and arrested me for contempt, on a warrant from Judge James. He told me later that he had considered handcuffing me. At least he’d decided against that, but he paraded me out of the building and put me in the back seat of his vehicle in front of a number of people who had been personally called by Mary Lynne James to witness the arrest of the city attorney. One was a man named Bill who was using the CCTV channel for his (commercial) local news broadcasts. He reported that I had violated a court order, which I didn’t do. Once at the court I asked for another judge to hear the contempt charge, since Judge James was a witness, and my motion was granted. That is how the proceeding ended up before Judge Doucette.

The basis for Judge James alleging I had committed a contumacious act was that I had misrepresented what I was doing when I called the court from Rawlins to ask for the one-hour extension, by not revealing I was actually closing the contract. But I had only been asked by the clerk if my reason for needing the extra hour was “business related,” and answered “yes,” which was true.

Turns out the “arrest” was not a real arrest, since I was not booked into the jail or fingerprinted and nothing went on my record. I learned that Mary Lynne James had also called the press for the TRO hearing. She went after me for contempt because, she told my source, I had “made her look like a fool.”

At the end of the year there were skits put on by the local Rotary Club to roast local people, etc. I did not attend this event, but was told I had featured prominently, with some guy putt-putting around on stage wearing an airplane costume. I did not think it was funny, at the time, but thinking back now I am chuckling.

I tried to get OARC to pay attention to the fraud committed by Bob Weiss, in lying to me about a court proceeding to be held in Steamboat at 8:00 a.m. in order to throw a monkey wrench into our closing, which he somehow knew would be at 9:00 in Rawlins. (Oh, yeah, he did a records request earlier and I provided him the closing documents, myself.) As usual, no one was interested in what he did, only in what I did.

The rest of this story is covered in the main article above. When I find the document I wrote in response to the OARC disciplinary charge I will post it, but I believe this account, based on my memory, is substantially accurate. Tempest in a teapot.