"They just did it." Used statute to modify Article X Section 3.5 & added survivors

GOLD STAR WIVES:

HB14-1373 added surviving spouses of seniors and disabled veterans to the property tax exemption in Article X Section 3.5. 

That means the legislature modified a provision in the Colorado constitution without bothering with an amendment!

Oops.

That is "extra-constitutional." But it was done. Can we do the same "extra-constitutional" approach to add Gold Star Wives (spouses) to the survivors?

Colorado Bar Association: Statement of Support for Disabled Veterans and Gold Star Wives re: Property Tax Exemption

 Colorado Bar Statement:

"The Military and Veterans Affairs Committee (MVA) of the Colorado Bar Association has affirmed its support for two state legislative objectives for 2022. Both involve the state's partial Disabled Veteran Property Tax Exemption, a constitutional benefit since 2007.

Gold Star Wives, survivors of active-duty servicemembers, are denied the exemption because the legislation (HB-14-1373) and enabling statute provides the exemption for survivors of veterans who had the benefit at the time of death. Using the text, "the surviving spouse of a qualified disabled veteran who previously received an exemption," 

Colorado legislators apparently did not consider the issue of active-duty deaths. Loss of the servicemember on active duty precludes the 'previously received an exemption' requirement. Proposed is a redefinition of a qualified recipient to include survivors of active duty servicemembers who die in the line of duty.

The second proposed legislative issue is veterans with VA Total Disability for Individual Unemployability, or 'TDIU.' Just like VA's other 100% disability veterans whose wounds or illnesses are rated totally disabling, these vets are 100% permanently and totally disabled, but currently are excluded from the exemption. 

Their disability is total, not per the VA rating schedule for the particular disability, but because their service-connected disability makes them unable to maintain employment. A TDIU veteran has been found by the VA to be physically or mentally unable to ever work again due to their service-connected disabilities. MVA will propose redefining 'disabled veteran to include TDIU veterans."

We ALL must start reading the Colorado state constitution

Otherwise, we won't know what they're doing to us, or how.

Article X Section 3.5:

"1.5) For purposes of this section, "disabled veteran" means an individual who has served on active duty in the United States armed forces, including a member of the Colorado national guard who has been ordered into the active military service of the United States, has been separated therefrom under honorable conditions, and has established a service-connected disability that has been rated by the federal department of veterans affairs as one hundred percent permanent disability through disability retirement benefits or a pension pursuant to a law or regulation administered by the department, the department of homeland security, or the department of the army, navy, or air force"

 I admit to a period of unAmerican cowardice. I failed to to stand up for myself, and in that failure also failed other Colorado veterans who were in the same situation. We were about 450 totally disabled military retirees, and as you can read in the clip from the Colorado constitution above, we have a property tax exemption. My failure was when DOLA and CDMVA denied me the exemption and disregarded the state constitution. In effect, these agencies and the legislature nullified parts of Article X Section 3.5.

I pointed out the constitution but was rebuffed – "No, we follow the law," insisted DOLA. There was no argument about the law being flawed, having left out those last fifteen words that clearly included us, clearly providing us a constitutional protection and benefit. Too bad, was the state's attitude. Go talk to your legislator. They failed to uphold the constitution or do anything about it. In fact, they NEVER did anything about this obvious conflict except make sure taxes were demanded and paid. Between 2007 and 2021, the estimate is that $3.825,000 was unconstitutionally taxed from these veterans.

My cowardice was in paying the tax even without the exemption. I have no excuse because I'd read both the law and the constitution's Article X Section 3.5, so I knew better. But I caved. My failing was to politely stand up for my constitutional rights,  Not as some "oath keeper" or such, but merely as a quiet American citizen.

 

My fear? Refusing to pay might cost me more somehow, in fines or something. In the extreme I might lose my house, get something on my credit report or some kind of legal trouble even while being passively resistant. "No. It's only a few hundred dollars," I reasoned.

But that was no reason. I abused the constitution itself. No excuse. I let the state, my fellow veterans and all Colorado citizens down by my inaction. Trying to fix it after I caved is no redemption. I faced some really wild and weird stuff flying in crates ranging from the T-33 and C-47 to Fat Albert (C-5,) and 26 years of military service but never caved or soiled my trousers; this time, I folded like a baby. 

I should have paid all but the exemption value, let the state seize my home for non-payment of taxes, and then tried to defend my position in court.

The first and only constitutional I was faced with (state or federal,) I backed down. I paid my property tax in full because DOLA and CMDVA said I had to, despite our state constitution. They didn't do their sworn duty, and neither did I. My shame is the greater.

Why? I must not have truly believed what I thought about the constitution. In this instance, the state constitution but the principal is the same. Jefferson would be, probably is, ashamed of me. I am.

Public Officials take an oath to support Colorado's constitution. What does that really mean?

Why? Because it guarantees my rights and freedoms, and Colorado officials take a solemn oath of office to support my rights and freedoms guaranteed by it.

 

Apology: I have to admit writing out of seven years of mounting
frustration on this state issue. You see, in my world the oath was military; “support and defend” and we were trusted to do just that, regardless of personal hazards, difficulties, obstacles, etc. We were also carefully taught for decades that support and defense of the Constitution of the United States is our highest duty.

Lesson from the 1946-1948 Nurenberg trials? Orders from a superior that conflict are illegal. If laws, orders and regulations present a conflict, I must seek assistance from colleagues, higher authorities, the Judge Advocate General, or even resign if possible. If circumstances leave my resignation impossible, I am obliged to obey the Constitution as best I can understand it. Merely hiding behind an illegal or unconstitutional order would be no defense at all.

But what about the oath to support the constitution of the state of Colorado? State officials swear to support both the US and the state constitutions?

This essay’s question arises because of an obvious conflict between our Colorado constitution’s Article X Section 3.5 and its enabling legislation, both resulting from the 2006 Referendum E.  S.C.R. 06-001 in 2007 law left out fifteen words describing totally disabled military retirees and the guaranty therein of a disabled veteran property tax exemption: 

    "the department of homeland security, or the department of the army, navy, or air force."

Those last fifteen words in Section 3.5 and not in S.C.R. 06-001 or § 39-3-202 C.R.S. (until 2016) denied the property tax exemption to approximately 450 totally disabled military retirees, about ten percent of our entire eligible vets. Still abandoned as of June 2021 are 450 with an Army, Navy or Air Force medical retirement as totally disabled. They’re constitutionally qualified for but statutorily disqualified for the exemption. 

That is, veterans who are qualified and entitled by the constitution but denied by the law or regulations or actions of the government.

In this instance, state agencies and state officials have elected since 2007 to adhere to the law and not the constitution. Year after year, they refused the constitutional protection of Article X Section 3.5 guaranteed these 450 Colorado disabled veterans.
 

The purpose of Colorado’s oath of office, itself part of our constitution, is to remind state workers and officials is that they do not swear allegiance to a supervisor, agency, political appointee, law or regulation, or even to the governor or president. Their paramount oath is to support the Colorado and United States constitutions and faithfully execute one’s duties.  

Private citizens are not party to this reminder and have no duties under it directly. Public employees and officials most definitely do have duties they’ve sworn to fulfill. We should be able to rely on them faithfully doing so. The people of Colorado are sovereign over the courts, the executive and the legislature with all its laws. The constitution represents the will of the people – yet the people’s will has been ignored as regards the disabled veteran property tax exemption owed our 100% disabled medically retired servicemembers.

If Colorado courts wait to address the problem until it arises as a case or controversy about taxation, public trust in the fairness and legality of imposed every citizen's tax burden could be shaken.

§ 39-3-202 C.R.S is just a statute; it cannot override the Colorado Constitution. In Colorado, the only way to remove the right of disabled military retirees to the property tax exemption would be by amending the state Constitution. Unless and until there is an amendment, no statute can deprive Coloradans of their constitutional rights. DOLA, the Treasurer, and CDMVA simply skipped that process and ignored the constitution.

Fortunately, the Colorado Constitution gives the Colorado Supreme Court the authority to “give its opinion upon important questions upon solemn occasions when required by the governor, the senate, or the house of representatives. . .” In other words, the governor, the state house, or the state senate can send an interrogatory to the Colorado Supreme Court, even if no case has arisen in which a taxpayer plaintiff has standing. 

For ten years, DOLA and CDMVA opted to tax 450 disabled veterans despite the constitutional protection due the vets. An estimated $3.825M has been lawfully but unconstitutionally raised in these excess taxes. DOLA writes they must assume the laws to be constitutionally correct; they have blinders on even when the laws clearly are unconstitutional.

One can assume that our fifteen missing constitutional words have long been noted for their absence. Noted, but never corrected, not by DOLA, CDMVA, LSC, the secretary of state, or the attorney general. Sworn officials dismissed this issue, telling veterans “go talk to your legislator or the supreme court. Get your constitutional rights only if you are able to and can afford to go to the supreme court.” In effect, “it is not our job to support the constitution for its benefits guaranteed you disabled veterans.”

After similar responses from DOLA, a 100% disabled military retiree sought correction of the issue in 2014; HB16-1444, a new law effect by 2017, brought the statute into agreement with the constitution. The important point: officials took the oath and should be expected to (but did not) uphold Article X Section 3.5 of Colorado above any conflicting law or regulation. 

They did nothing to support the constitution, choosing instead enforcement of the flawed, incomplete law. Sworn officials did not go to the legislature for a correction, did not go to the supreme court, did not refuse to enforce a clearly unconstitutional tax statute – they opted not to uphold their solemn oath.

Where does this bring us today? Problem solved? Nope. Not hardly!

Despite HB16-1444, special legislation back in 2016 to bring the tax statutes into compliance with the constitution, the state continues to block veterans guaranteed protection from those fifteen last words in Article X Section 3.5 –"the department of homeland security, or the department of the army, navy, or air force."

How? By still requiring these 450 vets to submit documentation from the VA. Even the forms updated since 2016 continue to inform veterans they are qualified only if they are 100% VA vets with VA documentation.

Web site after county web site, state web site after state web site, virtually every place one finds information about the Disabled Veteran Property Tax Exemption DOLA and CDMVA continue to ignore the constitution. DOLA has tried at least twice in the last five years to have counties update details about the exemption, but even the DOLA web site application and instruction forms continue to misinform veterans that a document showing VA 100% disability must be submitted. A disabled military retiree reading that simply doesn't bother going any further.

DOLA has tried, and perhaps CDMVA even more than I know, but Colorado continues to insist on unconstitutional taxes taken from disabled veteran homeowners.

   

REPRINT: Back in 2017 I complained that the state ignored HB16-1444 – Still little compliance with constitution!

by Wes Carter, National Chairperson, The C-123 Veterans Association

It’s damn hard to believe. Over this last decade state officials simply ignored property tax provisions spelled out in Colorado’s constitution to provide a small exemption to totally disabled troops retired by the military for line-of-duty injuries. It’s like the law simply went missing in action.

Back in 2006 voters amended our constitution, approving by a four-to-one margin to provide a small, partial property tax exemption. Only about $6000 value on average, the exemption is for two categories of injured servicemembers: Troops retired by the military as totally and permanently, and second, veterans rated 100% totally and permanently disabled by the Department of Veterans Affairs – "TDIU."

Referendum E carefully addressed both of the above categories because there are three differences between them:

1. Not all disabled military retirees also seek a VA disability rating – ratings must be applied for and, unlike military disability retirements, can take months or years to establish

2. Although based on similar laws, often military retirees face years of delays with claims and appeals to receive VA ratings, but military disability retirements are effective immediately upon leaving active duty

3. The military views a disability as medically unable, through line-of-duty illness or injury, to perform one's military specialty or be retrained in another; VA views disability as the percentage of loss of capacity to work in meaningful employment, somewhat similar to Social Security disability rules

(real example: Northern Colorado resident Vietnam-era veteran medically retired as 100% by the military in 1991 because of Gulf War injuries. Filed VA claims for numerous 100% disabling injuries and Agent Orange illnesses in 1992-1994 but not finally approved for 100% VA disability rating until 2015. Per our constitution's Article X Section 3.5, this veteran was eligible for Colorado's disabled veteran tax exemption in 2007. As of December 2017, still no state web site instructions or forms permit his application because only federal VA 100% disability ratings are mentioned, not his 100% military medical retirement.)

Problem: Through an oversight when the 2007 statute was drafted, the category of totally disabled military retirees was simply not mentioned…language about them is in the constitution, but was absent from the text of the law.

In 2015 concerned citizens discovered this missing language issue and asked the legislature to align the constitution with the statute. Both houses approved HB-1444 unanimously and it was signed into law in May 2016.

And then, generally ignored by state and local officials.

Equal Treatment for Colorado Gold Star Wives!

 

Colorado's Curious Management of its Disabled Veteran Property Tax Exemption, & the "Unemployability" Disqualification (updated May 12, 2021)

Five years ago I wrote about the curious sleight of hand employed to sell the voters on a worthy Colorado constitutional amendment but then the enabling legislation delivered a greatly watered-down statute. 

I backed off the subject after the United Veterans Committee (now United Veterans Coalition) made clear its nonsupport at that time. Understandably, it was best to avoid conflict and not mess up the carefully-crafted UVC legislative agenda. Happily, I understand that UVC has a related bill to increase the exemption as one of the 2021 objectives. Unhappily, I feel its cost of over $19M leaves no chance of success and UVC and the bill's sponsor might instead have pushed for Gold Star Wives and/or TDIU disabled veterans.

I refer here to Referendum E from back in 2006. Our legislature generously proposed a constitutional amendment (Article X Section 3.5) to provide a small partial property tax exemption to totally disabled veterans. Note the wording: "totally disabled veterans." Let's follow that bouncing ball of how definitions of  "totally disabled veterans" kept a-changing – and to finally covered as few vets as possible:

Here is the full text of Referendum E to amend the state constitution:

"AN AMENDMENT TO SECTION 3.5 OF ARTICLE X OF THE CONSTITUTION OF THE STATE OF COLORADO, CONCERNING THE EXTENSION OF THE EXISTING PROPERTY TAX EXEMPTION FOR QUALIFYING SENIORS TO ANY UNITED STATES MILITARY VETERAN WHO IS ONE HUNDRED PERCENT PERMANENTLY DISABLED DUE TO A SERVICE-CONNECTED DISABILITY.”

This is important: Note the "one hundred percent permanently disabled" and the separate phrase, "due to a service-connected disability." Here in Colorado those words are now interpreted to be one kind of totally disabled veteran but could be read to refer to two kinds. That's right. VA has two different types of totally and permanently disabled veterans. "TDIU" for total disability for individual unemployability" and 100% service connected disabled for vets with a disability, or group of disabilities when added together, equalling 100%. 

Here is how the Legislative Council told us via the Blue Book what we were voting for:

"Veterans are rated 100-percent permanently disabled when a mental or physical injury makes it impossible for the average person to hold a job and the disability is lifelong."

An overwhelming 85% of Colorado voters approved this worthy benefit for those who served our state and nation. But then the lawmakers themselves got involved and took a fire hose to the benefit, watering it down quite a bit.

When Denver finally enacted legislation for the mechanics of Article X section 3.5 to work, Referendum E ended up much less broad than what we approved. The number of qualified recipients of the benefit was cut by more than half to protect budget resources for other projects.

Here is the actual text that finally delivered Referendum E to us as law:

"(3.5) “Qualifying disabled veteran” means an individual who has served on active duty in the United States armed forces, including a member of the Colorado National Guard who has been ordered into the active military service of the United States, has been separated therefrom under honorable conditions, and has established a service-connected disability that has been rated by the federal department of veterans affairs as a one hundred percent permanent disability through disability retirement benefits pursuant to a law or regulation administered by the department."

And next, here is the Colorado Department of Military and Veterans Affairs form for applicants, where there are two portions describing "totally disabled veterans."

"A “qualifying disabled veteran” is a person who meets each of the following requirements
- § 39-3-202(3.5), C.R.S . A “qualifying disabled veteran” is a person who meets each of the following requirements - § 39-3-202(3.5), C.R.S.• The veteran sustained a service-connected disability while serving on active duty in the Armed Forces of the United States. This includes members of the National Guard and Reserves who sustained their injury during a period in which they were called to active duty. • The veteran was honorably discharged.• The federal Department of Veterans Affairs has rated the veteran’s service-connected disability as a one hundred percent permanent disability through disability retirement benefits pursuant to a law or regulation administered by the department"

– and from the back page – 

"2. DISABLED VETERAN STATUS: To qualify, both questions must be true and you must attach a copy of your VA award letter verifying that you have been given a permanent disability rating by the VA." 

CDMVA web site:

"The Disabled Veteran Property Tax Exemption is available to applicants who sustained a service-connected disability rated by the Federal Department of Veterans Affairs as a 100 percent permanent disability through disability retirement benefits pursuant to a law or regulation administered by the Department, the United States Department of Homeland Security, or the Department of the Army, Navy or Air Force. VA unemployability awards do not meet the requirement for determining an applicant’s eligibility." 

So, after all this reading, do you see where the disabled veteran property tax exemption got watered down by more than half? It was through the disqualification of veterans rated totally and permanently disabled by VA for "unemployability." Tossed into the program are the words, "VA unemployability awards do not meet the requirement for determining an applicant’s eligibility."  Note that these TDIU people aren't veterans who are out of work, but instead vets who've been evaluated as being physically unable to ever work. And are monitored to make sure that remains the case.

Side note: the constitution included as eligible veterans those who were medically retired by their service as 100% disabled. The fourteen words describing these vets were left out of the law until 2016, when HB16-1444 brought the tax legislation into accord with the constitution.

(Here is an analysis I prepared in 2016 when I last worked on disabled veteran unemployability tax exemption issues.)

VA "unemployability" is its 100% disability rating for vets with at least one 60% service-connected issue and whose overall disabilities are so severe, so far beyond the scope for which VA assigned the 60%, that any meaningful employment is impossible. VA has other rating of "catastrophically disabled" but even when a vet is rated both unemployable and catastrophically disabled, that doesn't meet CDMVA's redefinition of Referendum E also is awarded to vets with at least a 60% service-connected disability:

"Veterans are considered to be Catastrophically Disabled when they have a severely disabling injury, disorder or disease that permanently compromises their ability to carry out the activities of daily living. The disability must be of such a degree that the Veteran requires personal or mechanical assistance to leave home or bed, or require constant supervision to avoid physical harm to themselves or others."

 Let's note that VA has two kinds of unemployability awards. The first is temporary or "IU," meant for periods of uncertainty about recovery or rehabilitation after surgery or illness, and the second is permanent (TDIU) for exactly that – permanent disability for life. TDIU veterans not only are medically determined to be unable to work, they are also carefully evaluated for that situation by the Veterans Benefit Administration before given the rating. Finally, they are carefully monitored by VA to check that they remain unable to work and both Social Security and IRS records are checked. 

Because Colorado references the VA totally disabled rating everywhere, we should look at how VA itself describes a totally disabled veteran. Read carefully and compare to Colorado's absolute disqualification of TDIU vets from the Disabled Veteran Property Tax Exemption. Here is the VA Office of Inspector General's very appropriate definition:

"Veterans are considered to have total disability when they have a 100 percent disability rating due to service-connected disabilities or if their service-connected disabilities make them unemployable. For the total disability to be permanent, the law requires the disability to be “based upon an impairment reasonably certain to continue throughout life."

"The Veterans Benefits Administration Inadequately Supported Permanent and Total Disability Decisions",

    VA OIG 19-00227-226, Page ii, September 10, 2020

Clearly,  veterans with total disability, including TDIU, is what voters thought they were approving by votes for Referendum E back in 2006. So where did the Colorado prohibition of unemployability for the benefit come from?

I asked CDMVA and they said ask DOLA. I asked DOLA and in 2014 was told "some legislators" wanted that limitation. Legislators. Not the voters. Legislators introduced (snuck in!)  their own idea of
disqualification into what voters more broadly approved as our constitutional amendment.

My view: Veterans with a 100% disability rating, including TDIU, were provided the small tax exemption via Referendum E when we voted approval. TDIU eligibility should be corrected by legislative action. I do not favor broadening the Disabled Veteran Property Tax Exemption below the 100% disability level as the impact would be far too burdensome on taxpayers. 

Further, veterans often have disabilities common among folks their own age group, such as COPD, diabetes, hypertension and hearing loss. It would be unfair to a taxpayer with COPD to pay full property taxes while the veteran neighbor with a 50% COPD disability rating doesn't. The obvious need for tax relief is for survivors and the totally disabled veteran! Full stop.

Conclusion: A few legislators hijacked Referendum E and Article X Section 3.5 of the constitution, doing decades of harm to a large number of otherwise qualified Colorado totally disabled veterans and their survivors.

Time to set this right! What say you – Is 2022 too soon?

Mission Statement & Initial Plans for Gold Star Wives 2022 Property Tax Initiative

CLICK to download this 5-page outline of this goal for Gold Star Wives to get the same property tax relief as do survivors of disabled veterans.

Progress. Notes – April 16, 2021

 I have to admit, progress thus far is fairly disappointing. Mailings and phone calls for two weeks to politicians, associations, veterans, the media and everyone else I could think of have had a single response. Senator Ginia's staffer called to ask a couple questions to decide whether she'd brief her boss.

On Monday I have a Zoom call with the Governor and the Lieutenant Governor's chiefs of staff. I have questions aplenty, but don't know what their perspective is. Last year it was all about, "Nice, Wes. We'd like to offer widows the exemption but where's the money to come from?"

Here's an issue nobody in the Capitol would vote against, and we can't get traction. At age 75 and with various attention-grabbing health issues, I sure hope some champion will leap out in front of this project to take it on.

Gold Star Wives Poster - Disabled Veteran Property Tax Exemption

Correct! It seems our state legislature simply didn't contemplate the possibility of Colorado soldiers, sailors, airmen and Marines dying on active duty. That's why Colorado seem to have forgotten to offer our Gold Star Wives the same widows' benefits as we provide to survivors of totally disabled veterans.

That's unjust and plain WRONG! But not a single widow of an active duty service member is permitted the Colorado Disabled Veteran's Survivor Property Tax Exemption, a small exemption saving widows between $400-$600 a year.

Why? Our state constitution's Article X Section 3.5 permits the exemption only to widows of disabled veterans already in receipt of the benefit. Dying on Active Duty means not being able to complete the application process – because the service member died first!

This is Really an Amazing and Ridiculous Catch-22!

Why is the small property tax exemption of value to Gold Star Wives?

First, it shows the state's respect and appreciation for the loss borne by these widows and widowers. The partial tax exemption would only save about $400 to $600. It would seem a minor issue to most of us. 

But look at this from a Gold Star Widow's perspective. Circumstances vary, but if eligible widows can receive half of the service member's base pay. More than half of all military deaths are E-5 and below. An Army E-5 three-stripe sergeant would have a widow pension of under $2,000 per month.

The VA has "Dependents Indemnity Compensation," where if eligible a survivor might receive $1,300 per month. So, at best, our late sergeant's widow (or widower) hopes for a modest $39,000 per year.

How far does that go? In Colorado, the average home mortgage cost is $1,700 per month, and with typical associated costs like taxes, insurance, utilities and maintenance, a monthly cost of over $2,400 or $28,000 annually. You can do the math – that leaves $916 per month for food, transportation, insurance, clothing. 

Summary: Colorado Life did a thorough report on the money necessary to live in Colorado one needs $4,317.68 per month to live in Colorado if there is a mortgage involved. Oops – that leaves our widow short by over $12,000 per year. That's why the paltry $400-$600 partial property tax exemption is important. 

The burden of property tax is a huge reason so many citizens can never afford a home, and that's even more true for military folks. That's why so few junior military own homes at the time of death and why so few widows are affected by this proposed tax exemption.

For me, I wish it was a total tax exemption as many states provide! The survivor of a service member who dies on active duty obviously have to make many, many compromises to live on $12,000 less per year than what "average" citizens need.

I think I'll do a poster based on the graphic above, but try to get the word count reduced.

House Bill 16-1444 Passes Colorado Legislature Unanimously - Governor signs May 27

Thanks to the efforts of state Senator Keffalas and his colleagues, the conflict between Article X Section 3.5 of the Colorado constitution and its enabling legislation will be resolved tomorrow when the Governor signs House Bill 16-1444.

The constitution provided a modest property tax exemption to both VA 100% disabled veterans and military retired 100% disabled servicemembers. BUT...someone writing the subsequent legislation forgot the military and only specified VA, denying hundreds of retired totally disabled servicemembers the exemption guaranteed by the constitution.

WOW...it only took three months from mentioning the problem to Senator Keffalas, getting the support of the United Veterans Committee, and even the state Division of Military and Veterans Affairs, and the correction simply sailed through both houses without a dissenting vote.

So...one problem solved, and next we move on to the shameful discrimination suffered by Colorado's war widows and widowers, who are denied the property tax exemption afforded disabled veterans' survivors.

Why the exclusion of war widows and widowers? Because the constitution only provides the property tax exemption to those whose veteran husband/wife was in receipt of the exemption before the veteran's death. Logically, a soldier who dies in a roadside bomb or hostile artillery fire doesn't make it home to complete Colorado's application, but illogically, his/her survivor is denied the property tax exemption.

Colorado's Curious Management of its Disabled Veteran Property Tax Exemption

 • Colorado Legislative Council, in describing the disabled veteran property tax exemption on the 2006 ballot:

"Veterans are rated 100-percent permanently disabled when a mental or physical injury makes it impossible for the average person to hold a job and the disability is lifelong."

• Colorado Division of Veterans Affairs:

VA "unemployability' total and permanent disability awards (TDIU, but only permanent and total) not acceptable for disabled veteran property tax exemption."

• Is there a disconnect somewhere in CDMVA? Are we stuck with this Catch-22 situation? Why does only Colorado treat TDIU differently than VA's other total disability rating (100% schedular?)

A Message from Bob McDonald, Secretary of Veterans Affairs on the 50th Anniversary of the Vietnam War

A Message from Bob McDonald, Secretary of Veterans Affairs:

Our nation is currently commemorating the 50th anniversary of the Vietnam War, a long overdue opportunity to honor our 7.2 million living Vietnam Veterans and the 9 million families of those of us who served from November 1, 1955, to May 15, 1975. The Department of Veterans Affairs and more than 9,000 local, state and national organizations have joined the Department of Defense as Commemorative Partners in this important commemoration. 

For us, this partnership holds special significance in light of our mission to serve those who “shall have borne the battle,” their families and their survivors. Embracing our Vietnam Veterans and their families is in keeping with the intent and spirit of our MyVA transformation, focusing on our customers and improving their experience with the VA. 

Please take advantage of the opportunity this commemoration presents to express your gratitude for the service and sacrifice of this generation of American Servicemembers. Thank a Vietnam Veteran and welcome them home!

Did Colorado Legislative Council Overrule the People and Constitution of Colorado?

"CLC" is the Colorado Legislative Council. The CLC web site tells us they have an important role in our state's legislative process:

"The Colorado Legislative Council plays a big role in the initiative process in Colorado. The Legislative Council meets to approve all language for all ballot measures that have qualified in Colorado. Also, Legislative Council provides a fiscal impact statement which is mandatory for all ballot measures. This is done to determine impacts on any state agency or local government.
Once the analysis is complete, the Legislative Council prepares an official booklet which is published to Colorado voters on the actual language and fiscal impacts of ballot measures. The name of the official booklet is known as the Blue Book."

Colorado's voters were sent the Blue Book back in 2006, and CLC explained which veterans were specified in Referendum E. Included were explanations that the Referendum specified totally military personnel retired by their services, and described VA-rated totally and permanently disabled veterans, "Veterans are rated 100 percent permanently disabled when a mental or physical injury makes it impossible for the average person to hold a job and the disability is lifelong." Referendum E received 78% of the votes, becoming Article X Section 3.5 of the Colorado constitution.

In 2007 the Legislature undertook to create statutes to implement the constitution's changes. Their final work efforts were then routed past CLC for legal form, content and other requirements to become law. But CLC, or the Legislature, goofed. Twice.

First, the final legislation somehow dropped reference to totally disabled military personnel retired by the Army, Navy and Air Force. Second, although the Blue Book explained to the electorate (and we approved) that totally and permanently disabled vets "are rated 100 percent permanently disabled when a mental or physical injury makes it impossible for the average person to hold a job and the disability is lifelong," CLC and the Legislature somehow specifically barred VA's disability category called "totally and permanently disabled individual unemployability," or TDIU. The electorate, relying on CDC's Blue Book, amended the constitution and specifically protected vets who couldn't hold a job and whose disability was lifelong.

But CLC then specifically rejected such unemployability, somehow backtracking on its Blue Book as well as the decision of the electorate to amend the constitution, in part overturning the voters' decision on Referendum E.

Today, the Colorado Department of Military and Veterans Affairs refuses to follow the constitution but instead relies on the flawed statute, both of which CLC worked on. CDMVA thus defies the constitution and refuses the exemption to qualified vets seeking the benefit. State and county forms read, but without legal foundation, "VA employability awards do not meet the eligibility requirements." 

Why couldn't CLC get the final statutes to comply with the constitution and the guidance CLC gave the electorate? Why does CLC say VA permanent and total service-connected unemployability disability awards are unqualified for the exemption?

Why is the will of the people, expressed in our approval of Referendum E to amend the constitution, defied by CLC and the Colorado Legislature? How can CLC be called to account for this, and to correct their mistakes?

Late Bill Can Save Colorado $8M – ONLY IF Senate or House Leadership Will Get It to the Legislature

Leadership in the Colorado Legislature has an opportunity to actually save Colorado over $8M by enacting legislation. Act now...this legislative session. Not next year

Veterans affected by the problems surrounding Referendum E, and the resultant Article X Section 3.5 in the Constitution, and subsequent flawed legislation have two clear approaches to correct the disabled veterans property tax exemption:

1. corrective legislation, with "late bill" restoring military disability retirements and unemployability provisions  of the Constitution, to begin in 2017, or...
2. the Supreme Court to declare unconstitutional statutes and regulations related to Referendum E/Article X Section 3.5

1. A legislative solution through a "late bill" is a much, much cheaper solution. If enacted, it will provide the exemption for application in 2017.  Because Colorado laws prohibit retroactive correction., there can be no payment for years when the exemption was withheld. But...

2. If veterans gain relief from the Supreme Court, it is probable jurors will grant relief retroactive to the 2007 tax year, because that's when abuse to the Constitution's Article X Section 3.5 began. Thus, benefit of the exemption will be made effective from 2007 on, ten years earlier than what the Legislature can provide! Nine years times as as many veterans as might be affected by this solution (estimated 2000), times an average of $466 each.

To both save money and help veterans now, leaders in the Senate and House much permit the necessary late bills to be released for the Legislature to act on ...now!

Colorado will fix the problems surrounding Article X Section 3.5...but when? Will it be too late?

Correct the property tax exemption!

Colorado's legislative leadership needs to carefully consider approving a "late bill" this session. This year, not next! Next year is too late for too many of us. Too late for our widows also!

There's pressure against any such late bills introduced after Senate and House deadlines unless the proposed statute addresses issues serious problems that must be corrected without delay.

I contend that's us. Having had our Constitutional rights denied for eight years since Referendum E was approved in 2006, unless legislation is approved this year it will be 2018 before the property tax exemption is of any benefit. If House or Senate leaders insist on postponing introduction of legislation fixing the problem, a bill passed next year will be approved too late for 2017 taxes and veterans won't have use of the exemption until the following year.

Because a totally disabled veteran is not just a veteran, but one with grievous, life-changing military injuries or illnesses. Only one percent of all disabled veterans are 100% service-connected. These injuries or illnesses drastically reduce our remaining years. Our families are hit hard, especially kids as we try to live going forward on a VA disability check...hard to look forward to high school and college.

Cancer, paralysis, loss of arms or legs, ALS...it takes a very serious issue for VA to rate a veteran at 100% disabled and thus, eligible for the disabled veteran property tax exemption. Colorado's mistakes in the 2007 legislation passed to implement Resolution E (Article X Section 3.5) have denied property tax relief for eight years and we just can't wait too much longer. Further, our widows are forever denied the property tax exemption unless, before our deaths, we'd been receiving the benefit.

We don't have years to wait. There's real meaning behind the phrase "Constitutional Rights Delayed are Constitutional Rights Denied." Don't make us wait past our deaths for Colorado to finally resolve the problem caused by the Legislature in 2007 with its lawed statutes on Referendum E. Too many of our fellow veterans have passed during these last eight years when they should have been receiving the property tax exemption – and every one of their widows is now denied the exemption supposedly guaranteed in Article X, Section 3.5 of the Colorado Constitution.

This can and should be fixed by advancing the late bills now with the President of the Senate and the Speaker of the House.

Finally – A comprehensive (though disappointing) answer about the conflict between Colorado's constitution and statutes on disabled vet property tax exemption

I asked...and she answered very completely. Now I have something to work with going forward.

From: Groff - DOLA, JoAnn <j>

Dear Mr. Carter: 

Renee Bridges and Stan Gueldenzopf on the staff here at the Division of Property Taxation, Department of Local Affairs have both contacted me about your concerns. To clarify, I understand your issue is that you have a different opinion of the wording of the Colorado Constitution from how it is interpreted by Colorado Statute and subsequently applied by the Division of Veterans Affairs in the Department of Military and Veterans Affairs. Renee Bridges suggested that you contact your legislators, but perhaps didn't offer enough explanation as to the "why" you should contact them. I hope to add some clarity here.

When there is a question regarding an interpretation of the constitutionality of statute there are two governing authorities. The first is the Colorado General Assembly. The presumption is that their interpretation through law IS constitutional. Subsequently, the Administrative staff who interprets and then enforces the statutes (read Division of Veterans Affairs, Division of Property Taxation and our respective Departments) does not have the authority to question whether the law is in conflict with the Constitution, we must assume all statutes are constitutional. If there is a question of whether a statute is constitutional, the second governing authority is the Colorado Supreme Court. If the Court says it is NOT constitutional then that part of the law becomes null and void and the General Assembly starts over. 

Short of bringing a lawsuit, individual legislators do have the ability to ask Legislative Legal Services, the office that acts as the attorneys for the General Assembly, for a legal interpretation of whether a part of the statute is constitutional. The legislators also can introduce legislation, even without an opinion of their lawyers, if the legislator feels the current statutory interpretation is incorrect, OR if they feel the language of the constitution might support a more broad interpretation than that which is currently in statute. 

For your circumstances, rather than initiating a costly and protracted legal review through the courts, my staff thought the best place to start is to see if your individual legislators agree with your argument and feel a change in the statute is appropriate. The interpretation you propose cannot be enacted independently by the administrative departments responsible for the program. I hope this offers clarity to our earlier response. 

All the best. JoAnn

JoAnn Groff 

Property Tax Administrator

P 303-864-7776  I  M 303-864-7777 I  F 303-864-7799

1313 Sherman St., Suite 419, Denver, CO 80203 

  I www.dola.colorado.gov/dpt

Overview & Support Materials – Disabled Veteran Property Tax Exemption Issue

Summarizing what we've learned in a couple months of investigation, this twenty page overview provides an orientation to the issue and the various details which leave us challenging the Colorado Department of Military and Veterans Affairs for improperly constricting the definition of "qualified veteran."

Their redefinitions have blocked two qualified groups of veterans, fully qualified per the Colorado Constitution Article X Section 3.5, for disabled veteran property tax exemption.

Email trail on Colorado Disabled Veteran Property Tax Exemption Being Withheld From Some Qualified Vets

Question to CODVA: "BY WHAT AUTHORITY DOES CODVA WITHHOLD THE DISABLED VETERAN PROPERTY TAX EXEMPTION FROM PERMANENT AND TOTALLY 100% DISABLED VA RATINGS WITH UNEMPLOYABILITY?"

SOME EMAILS:
(FROM CODVA)

Mr. Carter,
The statue is a State one and it is 39-3-202 (3.5).

I feel the reason they limited this to Veterans rated 100% was because they didn’t know the fiscal downfall of the bill. My understanding from the people who were involved were fully aware of the difference between Individual Unemployability and the 100% rating. No one in our office was involved in these decisions and I personally, being the one who approves these, would love to see the law changed. You have no idea how people can treat someone when they think the law is unjust.

If you would like to see this law changed be sure to contact the legislature about it. The Veterans groups have large voices in the State of Colorado.

I hope this helps. Have a wonderful Holiday and Happy New Year

Merry Christmas and Happy New Year 
State Service Officer 303-284-6077 Fax: 303-284-3163

(FROM VA WHEN ASKED IF VA PTIU RATINGS MET STATE REQUIREMENTS FOR PERMANENT, TOTAL AND SERVICE CONNECTED. From Mr. E. S., "Senior Management and Program Analyst at Veterans Benefits Administration, Department of Veterans Affairs - ‎Veterans Benefits Administration, Department of Veterans Affairs" )

 Wes 

We’d be happy to answer any questions Mr. Mestas and CO DVA have.  As I mentioned in my previous response, VA does consider some IU ratings, such as the one you provided as an example, to be permanent and total (P&T).  P&T IU ratings are clearly marked as such.

(FROM CODVA)

Mr. Carter-
Under the current interpretation of the law those individuals do not qualify if they are less than 100% but are awarded IU that makes them 100% regardless if it is permanent and total. When the federal VA was asked by the Colorado General Assembly  to clarify the difference while the bill was being developed, they made the distinction between the two. That distinction is  what my Division follows.
Should the General Assembly decide to amend the law to cover both, that change would have to come through legislation. 

Proudly Serving America’s Warriors.
Colorado Division of Veteran Affairs 1355 South Colorado Blvd. Suite 113