Electoral College convenes under protest as Colorado Secretary of State rewrites oath of office

At 11:35 am this morning, Colorado presidential electors Polly Baca and Robert Nemanich convinced state court judge Elizabeth Starrs to prohibit Colorado’s Republican Secretary of State, Wayne Williams, from changing the oath of office for this year’s presidential election. During a merits hearing last week, cross-examination revealed that Williams’s office had drafted a new oath for 2016, apparently to discourage any Democrats from defecting from Hillary Clinton to support John Kasich or other alternatives to Donald Trump. Judge Starrs ruled that this was improper and ordered Williams to administer the standard oath. The victory was short-lived, however, as Williams immediately adopted a temporary election rule permitting him to reuse the new oath at noon, despite the court’s ruling moments before. As authority for his rebuke of the court’s order, Williams cited his right to suspend notice and rulemaking procedures to ensure that state elections run smoothly.

Judge Starrs declined to grant the electors further relief when the parties telephoned the courthouse from the governor’s chambers at the state capitol, despite the electors’ argument that Williams had failed to demonstrate that changing the oath was “imperatively necessary,” as required to suspend the notice and rulemaking requirements of Colorado’s State Administrative Procedure Act. The electors eventually agreed to signed the new oath “under duress.” Williams had previously said they would be removed from their positions if they did not swear their allegiance under the modified oath.

This is the first time such an oath is believed to have been administered in Colorado. Baca said that, in her previous experience as an elector in 2008 and 2012, the Secretary had used the standard oath of office. The standard oath requires an elector to support the state and federal constitutions and faithfully performing the duties of the office, but it stops short of telling electors how to actually vote in the federal election for president. A state statute, C.R.S. § 1-4-304(5), purports to bind the electors’ vote to the winner of the general election, but many have suggested that this statute violates the United States Constitution.

Baca and others said that they were coerced into signing the new oath. In a scene that felt like it could have been lifted from a fascist propaganda film, the electors reluctantly raised their right hands and took the modified oath. One elector, Michael Baca (no relation to Polly) apparently reconsidered after signing his oath. Mr. Baca, dressed in a bright yellow Bernie Sanders T-shirt, cast his vote for Kasich, which immediately prompted Williams to remove him in favor of an alternate willing to vote for Hillary. The large crowd that had assembled disapproved and began shouting for Williams himself to resign.

Whether the Secretary’s actions were constitutional remains unclear. The federal courts declined to enter an injunction prior to today’s meeting of the Electoral College, but they are still expected to decide in the future whether the states can treat presidential electors as performing the purely ministerial task of ratifying election results, or whether they must remain free to fulfill their constitutional duty to deliberate, investigate, and choose a qualified candidate for office, as Alexander Hamilton intended.

Late Friday, a federal appeals court had ruled that it was unlikely that Williams or the state had authority to remove presidential electors after the Electoral College convened, reasoning that the electors would be subject to federal law once appointed by the state. Nevertheless, that is exactly what transpired today after Mr. Baca voted for Kasich. Mr. Baca asked for legal advice as the Secretary sought to remove him, and his attorney, Jason Wesoky, attempted to explain this issue before Williams asked him to step away.

Jesse Witt of the The Witt Law Firm has represented Polly Baca and Robert Nemanich in the state courts. Wesoky of Darling Milligan Horowitz PC is representing them in their ongoing federal action.

Several hours after Colorado voted, electors in Texas delivered the presidency to Donald Trump. Two Texas electors defected, one supporting Ron Paul and the other joining Michael Baca to cast a vote for Kasich.

Colorado high court declines to hear Hamilton Electors’ appeal

Late this afternoon, the Colorado Supreme Court declined to exercise jurisdiction over the appeal by presidential electors Polly Baca and Robert Nemanich. These means that, absent intervention by the federal courts, the Colorado Secretary of State will be able to remove these electors if they vote for a candidate other than Hillary Clinton or Timothy Kaine when the Electoral College convenes on Monday in Denver.

Baca and Nemanich had previously stated their belief that federal law requires members of the Electoral College to meet, deliberate, and investigate before choosing a candidate for president. These duties are set forth in the writings of Alexander Hamilton and reflected in Article II and Amendment XII of the Constitution. Although Baca and Nemanich each indicated their support for Hillary Clinton, they also expressed a willingness to consider choosing another candidate if the opportunity arose to join with Republican electors in other states to support a bipartisan alternative to Donald Trump.

Today’s ruling was limited to an interpretation of state election law. An emergency appeal is still ongoing in the federal Tenth Circuit, where Baca and Nemanich have asked a three-judge panel to suspend the law altogether because it violates the Constitution. Earlier this morning, Trump’s lawyers filed a brief in that case arguing that Baca and Nemanich cannot be allowed to vote for another candidate, in part because it could disrupt his otherwise orderly transition to power.

The decision not to decline the electors’ appeal today does not create legal precedent, so the issue could arise again in future elections.

The Witt Law Firm’s Jesse Witt has represented Baca and Nemanich in the state courts. Jason Wesoky of Darling Milligan Horowitz PC has represented them in the federal actions.

Update on Hamilton Electors lawsuit

This afternoon, Presidential Electors Polly Baca and Robert Nemanich filed an emergency appeal with the Colorado Supreme Court, asking the seven justices to vacate a district court order that requires them to vote for Hillary Clinton when the Electoral College convenes at noon on Monday.

In their petition, Baca and Nemanich argue that the state court lacked jurisdiction to enter injunctive relief against presidential electors who are tasked with performing duties under federal law. They further argue that the court committed legal error by deeming the act of voting for a different candidate to be a “refusal to act,” and by adding remedies to the election code that state legislators never intended.

Baca and Nemanich asked the court to set an expedited briefing schedule and issue a ruling before the Electoral College meets.

Jesse Witt of The Witt Law Firm is representing Baca and Nemanich in their supreme court appeal.

Jesse Witt, representing elector Robert Nemanich, speaks to press outside of the courtroom. (Kevin J. Beaty/Denverite)

Jesse Witt, representing elector Robert Nemanich, speaks to press outside of the courtroom. (Kevin J. Beaty/Denverite)

A grandmother’s reflections on Pearl Harbor

To commemorate the 75th anniversary of the Pearl Harbor attack, I wanted to share an old letter I found among my grandmother’s papers this past summer, recalling her own memories of that fateful day. –JHW

December 07, 1994

Today is the 53rd Anniversary of Pearl Harbor, the day that has lived in infamy as FDR referred to it on his address to Congress asking for a declaration of War (there was only one dissention, a Miss Rankin, a Senator, I believe from one of the Southern States.) I was sitting in my home in Sweetwater, Texas. It was a Sunday morning, a sort of day off for Howard with only a few chores at the Saddle Horse. When I heard that practically the entire Pacific fleet had been wiped out it was a time of anguish, and a puzzle too—weren’t Japan’s representatives at that same hour negotiating in Washington?

When FDR convened the Congress the next day—or so—I wanted to hear his address on the battery radio. I called Howard in—and along with him a Mr. Chandler who was working there clearing some land and who when I called asked if he could come in and listen to the radio with us. He was a veteran of WWI—had been with the AEF in Europe. So of course, we invited him in. That familiar voice—Magnificent!—of FDR came over the air ways and we—as a country—were plunged immediately into a time of horror and deprivation which we had never known before. Our way of life changed completely. We were never again to know the sweet soft easy existence we were accustomed to—the death march of Bataan, Leyte Gulf, Tarawa, Iwo Jima—all this lay ahead of us in one screaming thrust of War. It led to so much sorrow, so much loss. We would never be the same as we moved on to Hitler’s Germany and all their atrocities—the Holocaust, the Battle of Dunkirk—and all the time an innocence was lost, never to be regained for two American citizens who were forced to become accustomed to world horror as time marched on.

Jo Witt

This letter was written in 1994, a little over a year after my grandfather Howard had passed away. She wrote many letters in those days, wishing she could still speak to him. Jo lived on until the summer of 2001, and I always felt it was merciful that she did died without having to witness the tragedy that befell us that September. 

She appears to have added more text at some later time, discussing the military service of her three brothers, John, Bid, and Sidney. Portions are in a shakier script and accompanied by a note in the margin reading “in this section I was writing in the dark.” I have copied those below.

I do not want to diminish the efforts of those family members who were involved first hand with the Ultimate devotion. My brother John was a Marine. Bid tried to enlist Navy requesting submarine duty. Sidney regretted being still in high school, wanted to drop out of school and enlist, He said “darn it, the war’ll be over before I get in there.”—

Bid did become part of the Service, military that is, and as part of the U.S. Navy was active in the Pacific Zone, aboard the U.S.S. Lowry, a destroyer—active in the Battle of Leyte Gulf, among others. Sidney upon graduating from High School enlisted in the U.S. Air Force + served for 4 years, he was on active duty in England; this was during the “Korean Conflict.”

I don’t know if my grandmother ever intended this letter to be published, but I know that she understood the importance of learning from history. With that in mind, I have reprinted her words here exactly as she wrote them. Now, perhaps more than ever, we need to remember the sacrifices that prior generations made for us.

Appeals court affirms carrier’s duty to pay costs taxed against insured in construction defect suit

One of the key reasons for builders to maintain liability insurance is to cover the cost of hiring defense counsel and paying litigation costs in the event of a construction defect lawsuit. If a builder loses a lawsuit, it will typically be responsible for paying the plaintiff’s litigation costs. Today, the Colorado Court of Appeals clarified that the “supplementary payments” section of a standard Commercial General Liability (CGL) insurance policy covers such costs, even if the carrier has reserved the right to dispute whether it has a duty to indemnify the actual damages awarded.

This may seem counter-intuitive, insofar as a carrier may end up paying costs even if it does not cover the underlying loss, but the court’s decision is consistent with the plain language of the CGL form that most carriers use. Furthermore, while the court focused on the plain contract language without regard to public policy concerns, the decision may be seen to recognize the role that insurance defense counsel plays in the costs of litigation. If an insurance defense firm eschews offers of settlement and engages in aggressive discovery, for example, it may increase the insured’s chances of winning while also increasing the risk that the insured will face a larger cost bill at the end of the case. In such a scenario, it is fair and equitable to require the carrier to pay costs, regardless of any determination of coverage.

The opinion in Mt. Hawley Insurance Co. v. Casson Duncan Construction, Inc., 2016COA164, is available on the court’s website.

National demand increases for apartments, refuting calls for construction defect immunity in Colorado

For the last four years, the homebuilders’ lobby has been aggressively pushing the idea that consumer protection laws are stifling condominium construction in Colorado. The lobbyists claim that the fear of liability for construction defects has forced many local developers to build apartments instead of condominiums. They have dismissed the notions that the shift to apartments merely reflects supply and demand, or that modern families might actually prefer to rent rather than buy. To support this theory, they have touted high condominium sales in other states. A new story from NPR’s Here & Now refutes this claim, however.

Contrary to what the lobbyists have been saying, data now confirm that large numbers of Americans prefer to rent, not buy, their homes. NPR reported today that home ownership in the U.S. fell to its lowest rate since 1965, while the share of U.S. households who rent is nearing a 50-year high. This trend appears nationwide and can hardly be blamed on consumer protection laws in Colorado.

This boom in apartments, furthermore, has not been bad for the construction industry. On the contrary, the report notes that demand for apartments is fueling a “construction resurgence,” and H.U.D. recently announced a new high in nationwide housing starts. In a recent interview, the chairman of the National Association of Home Builders credited apartment construction for this rise: “New household formations are upping the demand for rental housing, which in turn is spurring the growth of multifamily production…. Meanwhile, single-family housing continues to hold firm.”

Colorado legislators should remember these statistics next session, when the homebuilders make their annual pilgrimage to the Capitol to complain about how the state’s consumer protection laws are killing the construction industry. Just because builders are profiting from record-high demand for apartments does not mean that lawmakers should strip away consumer protections for those who choose to buy new homes.

Obama approves update to FHA condominium approvals

This is great news for both homeowners and HOA’s. The restrictions enacted after the 2008 crisis caused vacancies in communities and delayed sales, leaving many of our clients in dire straits.

https://www.caionline.org/Advocacy/GovernmentAffairsBlog/Pages/Hr3700signed.aspx