(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. I was under no court order not to close it, although there was a private party, a billionaire stranger to the contract 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, for the course, a binder full of Xeroxed cases, many of which cut off the print 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 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 now, 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 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, as the real party in interest–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 incompetent snotnosed Nazi who groundlessly 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 litigation, 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 ISF case: 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.

Romer proceeded to appoint Jim Lochhead to the position of director of the Colorado Dept. of Natural Resources, and later appointed three people who had been adverse to me in the ISF case, or were involved in the contempt proceeding, to the Supreme Court: Greg Hobbs, Rebecca Kourlis, and Nancy Rice. Hobbs had filed an amicus brief opposing Aspen Wilderness Workshop’s position in the Snowmass Creek litigation; Nancy Rice was the Denver District Court judge who dismissed all our claims (and, I have evidence, engaged in ex parte communications about it); and Kourlis was the district court judge in Craig originally on the Kawcak case. She attended the contempt hearing before Doucette. So all of this looks suspiciously like the same thing I experienced later: retaliation for the exercise of my First Amendment rights, to get me off a water case where I was providing highly competent representation to anti-development interests.