DRAFT 2022 BILL EXTENDING PROPERTY TAX EXEMPTION TO "Gold Star Spouses," SURVIVORS OF ACTIVE DUTY MILITARY

This is just an untutored amateur's rough draft following the legislation guide  of a bill that might work to qualify Gold Star Wives for the property tax exemption by legislation instead of a constitutional amendment. Otherwise, an amendment would take a super-majority of the legislature to recommend to the voters.

            

                                                  A BILL FOR AN ACT

CONCERNING THE DISABLED VETERAN SURVIVOR PROPERTY TAX EXEMPTION FOR SURVIVING SPOUSES, AND IN CONNECTION THEREWITH ESTABLISH QUALIFICATION OF A SURVIVING SPOUSE OF A SERVICEMEMBER WHOSE DEATH WAS IN THE LINE OF DUTY WHILE IN THE ARMED FORCES OF THE UNITED STATES OR IN THE COLORADO NATIONAL GUARD ACTIVATED FOR STATE CONTINGENCIES, BY EXTENDING THE DEFINITION OF “OWNER-OCCUPIER PREVIOUSLY QUALIFIED FOR A PROPERTY TAX EXEMPTION”

________________________________________________________                                                                

                                                               Bill Summary

(Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://leg.colorado.gov.)

Colorado provides the Disabled Veteran Survivor Property Tax Exemption to a survivor of a totally disabled veteran “previously qualified for a property tax exemption,” per § 39-3-203(1.5)(a), Colorado Revised Statutes. The requirement that the veteran be in receipt of the exemption at the time of death necessarily denies the exemption to the survivor of an active-duty servicemember whose death was in the line of duty. Survivors of Colorado National Guard servicemembers whose death was in the line of duty while activated for state contingencies are also denied the exemption. This is contrary to the clear intent of the 2006 Referendum E in which voters approved the exemption to “one hundred percent permanently disabled due to a service-connected disability,” a line of duty death also being, in effect, a total and permanent disability.

This bill extends the definition of “owner-occupier who previously qualified for a property tax exemption” to include servicemembers whose death was in the line of duty while in the Armed Forces of the United States or in the Colorado National Guard while activated for state contingencies, thereby qualifying those surviving spouses for the same property tax exemption as the surviving spouse of a previously qualified disabled veteran.

_________________________________________________________

 

Be it enacted by the General Assembly of the State of Colorado:

SECTION 1. In Colorado Revised Statutes, 39-3-203, amend (11) as follows:

The owner-occupier is the surviving spouse of an owner-occupier who previously qualified for a property tax exemption for the same residential real property under subparagraph (I) of this paragraph, ONLY FOR PURPOSES OF § 39-3-203(1.5)(a), COLORADO REVISED STATUTES, THE SURVIVING SPOUSE WHO HAS NOT REMARRIED OF A SERVICEMEMBER WHOSE DEATH WAS IN THE LINE OF DUTY WHILE IN THE ARMED FORCES OF THE UNITED STATES OR IN THE COLORADO NATIONAL GUARD WHEN ACTIVATED FOR STATE CONTINGENCY;” and

(b) The owner-occupier has completed and filed an exemption application in the manner required by section 39-3-205 and the circumstances that qualify the property for the exemption have not changed since the filing of the application.  Under no circumstances shall an exemption be allowed for property taxes assessed during any property tax year prior to the year in which an owner-occupier first files an exemption application.

(1.5)(a) For property tax years commencing on or after January 1, 2007, fifty percent of the first two hundred thousand dollars of actual value of residential real property that as of the assessment date is owner-occupied and is used as the primary residence of an owner-occupier who is a qualifying disabled veteran shall be exempt from taxation if:

(I) The owner-occupier has completed and filed an exemption application in the manner required by section 39-3-205 ;  and

(II) The circumstances that qualify the property for the exemption have not changed since the filing of the application.

(a.5) For property tax years commencing on or after January 1, 2015, fifty percent of the first two hundred thousand dollars of actual value of residential real property that as of the assessment date is owner-occupied and is used as the primary residence of an owner-occupier who is the surviving spouse of a qualifying disabled veteran who previously received an exemption under paragraph (a) of this subsection (1.5)  OR SURVIVING SPOUSE WHO HAS NOT REMARRIED OF A SERVICEMEMBER WHOSE DEATH WAS IN THE LINE OF DUTY WHILE IN THE ARMED FORCES OF THE UNITED STATES OR IN THE COLORADO NATIONAL GUARD WHEN ACTIVATED FOR STATE CONTINGENCY, is exempt from taxation. 

SECTION 2.. In Colorado Revised Statutes Title 8. Labor and Industry § 8-14.3-202. Definitions, amend (8) as follows:

“Veteran” means a person who actively served in the United States armed forces and WHO IS MISSING IN ACTION OR WHOSE DEATH WAS IN THE LINE OF DUTY or who was discharged or released under conditions other than dishonorable, in accordance with U.S.C. title 38, as amended.  “Veteran” includes a person serving or who served in the National Guard or as a reservist

BREAK - --WHAT ADMINISTRATIVE DETAILS ARE NEEDED HERE?--BREAK

SECTION 3. Act subject to petition - effective date. This act takes effect at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly (August 5, 2022, if adjournment sine die is on May 6, 2022)

 

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INFO:

EVIDENCE TO SUBSTANTIATE  APPLICATION:

1. MARRIAGE CERTIFICATE OR EVIDENCE OF CIVIL UNION

2. DEATH CERTIFICATE, OR VA OR DOD STATEMENT 

3. EVIDENCE OF PROPERTY OWNERSHIP BY SERVICEMEMBER OR SPOUSE

4. COMPLETED APPLICATION

NOTE: survivors of active duty servicemembers separated for total disability or rated by VA as 100 per cent permanently and totally disabled and who then die are already eligible for the exemption.

Sample Association resolution: "Extend Disabled Veterans' Survivor Property Tax Exemption to Gold Star Spouses"

 Here's what has been proposed to the American Legion, although in no way approved yet It needs post approval, then district, before the Department of Colorado can decide on it. Again. only a draft. (May 5: modified to forward the resolution only to UVC for them to consider.)

=====================================

Met With American Legion Post, Fort Collins

I had an invitation this evening to request a resolution by the American Legion Post in Fort Collins. The subject:
Gold Star Wives. The resolution has to be voted on locally in order to proceed to the district, and then the Department of Colorado. I enjoyed a free beer and help with my wheelchair!

Here's the resolution:

WHEREAS, Since the Revolutionary War, more than one million American soldiers have died in battle and military conflicts; their families, who have endured these losses and the accompanying grief, are known as Gold Star Families and their spouses as Gold Star Wives; and Gold Star Families are a living legacy of each fallen soldier to help us all remember and honor these heroes by name and deed, and

WHEREAS, on April 5 2021 the Seventy-third General Assembly of the State of Colorado issued Senate Joint Resolution 21-010, resolving on behalf of the citizens “That we, the members of the Colorado General Assembly, honor the pride and the pain of the parents and partners and children and siblings of our fallen heroes who lost his or her life serving our country and protecting our freedom; and recognize the families of these proud patriots with an expression of profound gratitude and respect” and

WHEREAS, in 2006 the citizens of Colorado overwhelmingly approved by amendment to the State Constitution Article X Section 3.5 the Disabled Veteran Property Tax Exemption for totally disabled service-connected military veterans; and in 2014 the Colorado Legislature established the Disabled Veteran Surviving Spouse Property Tax Exemption for surviving spouses of totally disabled veterans already in receipt of the exemption by HB14-1373, and

WHEREAS, the sacrifices of Gold Star Families are to be honored with respect as well as material support and

WHEREAS, surviving spouses of servicemembers who die on active duty are only by the technicality of their servicememember’s death not being in receipt of the exemption thereby denied the exemption, and

WHEREAS, this distinction between survivors of totally disabled veterans already in receipt of theDisabled Property Tax Exemption and survivors of active duty servicemembers (“Gold Star Wives”) denied the exemption solely due to the death of their spouse while in service is an offense to the honor of the State, contrary to the Seventy-third General Assembly of the State of Colorado Senate Joint Resolution 21-010, and contrary to the intentions of Colorado citizens’ approval of Article X Section 3.5 as presented in the 2006 Referendum E, and

WHEREAS, the Colorado Department of the American Legion and the Gold Star Wives are both member organizations of the United Veterans Coalition of Colorado, and

WHEREAS, either a legislative or constitutional amendment process being necessary, it may suffice that a redefinition of “disabled veteran” to include a death on active duty, or other such procedure as theGeneral Assembly shall direct; and that surviving spouses of Colorado Air and Army National Guardmembers who die while activated by the Governor for State service should also receive such respect and benefits, it is therefore

RESOLVED, by the George Beach Post 4 of the Department of Colorado that inclusion of unremarried Gold Star Wives and unremarried surviving spouses of State National Guard members who die while activated by the Governor for State service, be included in the Disabled Veteran Survivor Property Tax Exemption because it is both necessary and proper, that the United Veterans Coalition be informed for this to be part of its state legislative objectives until acted upon; and the Colorado Board of Veterans Affairs and all relevant committees of the Colorado General Assembly be informed of this Department’s wish that efforts by them be undertaken for inclusion of Gold Star Wives in the Disabled VeteranSurvivor Property Tax Exemption with a goal of implementation before 2023.

A possible solution: redefine "disabled veteran" to include deceased active duty servicemenbers?

 Perhaps this approach can work. I've found House Bill 14-1737 which added surviving spouses to the exemption for totally disabled veterans. Apparently this was done under the umbrella of the state constitution's Article X Section 3.5 which made no mention of survivors – the legislature just did it.

Can the legislature do it again? Can't the legislature define an active duty servicemember who dies in the line of duty as a disabled veteran? That might work to pack into Article X Section 3.5 our few Gold Star Wives. The new text is in red

Colorado Owes Our Gold Star Widows the Property Tax Exemption Given Disabled Veterans' Widows

 

Scan codes to download our Gold Star Wives Property Tax Exemption briefer and our Powerpoint talk

These will be go to our Google Drive files for the most current version of the one page brief, the longer full background report, and the PowerPoint presentation that's been used so far. The Colorado National Guard is mentioned throughout but will be only more generally referenced in a later version.

1.The two page shortest possible handout is linked here.

2. Full 12-page brief:
Link: https://drive.google.com/file/d/1N0HT08Ykq4gHjoQnB-8zU4dudaWLtdLn/view?usp=sharing

3. PowerPoint briefing (18mb): Link: https://drive.google.com/file/d/1SpTlf_i0ttwSEjTuuC4TWbNR6S5CSU5O/view?usp=sharing

4. Background Files Collection (120 pages)
Link: https://drive.google.com/file/d/15k0Ee2ddxtgJtzP4_pH_S7qUnL36VEHZ/view?usp=sharing

Scan our QR code for the Gold Star Wives briefing packet

COLORADO DISABLED VETERAN PROPERTY TAX DENIED TO ALL VA TDIU* VETS - background & source documents

 * Total Disability Individual Unemployability=100% disabled vets denied Colorado's property tax exemption for 100% disabled vets

November 27, 2017

To: All Colorado officials and citizens respecting our state’s constitution

Problem: Most veterans rated 100% permanently and totally disabled by the federal Department of Veterans Affairs are refused Colorado’s disabled veteran partial property tax exemption provided for in the state constitution, Article X Section 3.5. Voters acted to provide them the exemption in 2006 but state officials refuse.

Discussion: THE EXPRESSED WILL OF THE PEOPLE OF COLORADO IN THEIR APPROVAL IN 2006 OF REFERENDUM E AS EXPLAINED BY THE LEGISLATIVE COUNSEL FOR ARTICLE X SECTION 3.5 OF THE STATE CONSTITUTION HAS BEEN ABUSED. The state constitution provides that the will of the people is paramount. That will was expressed in 2006 when the voters of Colorado approved by a margin of four-to-one amending the constitution in 2006 with Referendum E.

The Legislative Council submitted the ballet explanation to the voters as part of its constitutional duty to inform the electorate as per the constitution: “A fair and impartial analysis of each measure, which shall include a summary and the major arguments both for and against the measure, and which may include any other information that would assist understanding the purpose and effect of the measure.”

What voters were informed about by Legislative Council, and approved, and what the Colorado Department of Military and Veterans Affairs (CMDVM) have proven to be two greatly different things with CDMVN prohibiting veterans rated by the federal Department of Veterans Affairs as 100% permanently and totally disabled via TDIU (total disability individual unemployability.)

Affected are over 6,000 veterans totally disabled solely due to military service.

The “Colorado Property Tax Reduction for Disabled Veterans Referendum,” also known as Referendum E, was on the November 7, 2006 ballot in Colorado as a legislatively referred constitutional amendment, where it was approved with a margin of four-to-one. The measure extended a property tax exemption for qualified senior citizens to all U.S. military veterans living in Colorado who are 100% disabled due to a service-related disability.

There are therefore two fundamental qualifications for veterans rated 100% permanently and totally disabled (TDIU):
      a: Legislative Counsel specifically described a veteran disabled and unable to work for the rest of his/her life in the language voters approved in Referendum E.
      b: TDIU veterans also qualify on the clear language in Article X Section 3.5 describing veterans rated by the federal Department of Veterans Affairs as 100% permanently and totally disabled, especially when referring to 38 CFR 4.16 - "Total disability ratings for compensation based on unemployability of the individual."

Here is the exact information provided by Legislative Counsel on Referendum E, upon which it was approved by the people:

COLORADO PROPERTY TAX REDUCTION FOR DISABLED VETERANS, REFERENDUM E (2006) THE LANGUAGE SHALL APPEAR ON THE BALLOT AS:

“ 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.

How does the program work? Homeowners pay property taxes based on the value of their home and the tax rate set by the local governments where they live. Referendum E reduces the taxable value of a qualified veteran's home by one-half of the first $200,000 of the home's value, thereby lowering property taxes owed on the home. The state legislature can adjust the $200,000 amount to either increase or decrease the benefit from Referendum E in future years. Currently, the state offers the same property tax reduction to homeowners age 65 and over who have lived in their homes for at least ten years. A qualifying veteran who is also eligible for a reduction in property taxes as a senior cannot claim both reductions. The dollar amount of the tax reduction will vary among homeowners depending upon the local property tax rate, the home's value, and the amount of the exemption. Table 1 provides examples of how Referendum E reduces property taxes based on the average statewide property tax rate and the current exemption level.

Who qualifies for the tax reduction? Homeowners who have served on active duty in the U.S. Armed Forces and are rated 100-percent permanently disabled by the federal government due to a service-connected disability qualify for the tax reduction in Referendum E. Colorado National Guard members injured while serving in the U.S. Armed Forces also qualify. 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. Nationally, less than one percent of veterans have a 100-percent permanent disability rating. About 2,200 veterans are expected to qualify.

Please note the highlighted sections of the Colorado state constitution below and the supreme authority of the people, and of a referendum amending the constitution.

Solution: Colorado Department of Military and Veterans Affairs, and Colorado Department of Local Affairs must extend the exemption to veterans rated TDIU.

Conclusion: Colorado voters approved specific language recognizing as a totally disabled veteran a veteran rated by the federal Department of Veterans Affairs as 100% permanently and totally and disabled, noting the wording provided by Legislative

Counsel of such a veteran being unable to work for the remainder of his/her lifetime. It is of note that all veterans rated by VA as TDIU (total disability for individual unemployability) are to work and forfeit their disability if they elect to do so regardless of their injuries.

The federal law governing TDIU and upon which our constitution states CMDVM is bound, states, “It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.”

Colorado’s taxing agencies disregard what the people voted for and unlawfully limit the property tax exemption by refusing TDIU veterans.

The people voted to modify the constitution and extend the disabled property tax exemption to veterans rated permanently TDIU. That vote must be honored by the legislature and our state agencies.

Respectfully,

Wesley Carter

www.codisabledvet.blogspot.com
Attached:
1. Portions Colorado Constitution
2. Source documents

Colorado's Legislative Counsel Needs to Explain Referendum E and the People's Wishes to State VA Officials

Dear Legislative Counsel,

We ask your assistance in a constitutional issue rooted in language submitted to voters by the Legislative Counsel.

In 2006 your department provided detailed wording for Referendum E for voter approval, explaining aspects of disabled veterans and the proposed partial property tax exemption.

Voters were told by LC, in your words, "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" and on that basis the people approved amending the Colorado constitution Article X Section 3.5.

Subsequently state agencies acted wrongly to deny veterans unable to work for the rest of their lives due to service-connected issues and rated as such by the federal Department of Veterans Affairs. This is even though it was the clear wish of the people, using the referendum's explanation, that category of veterans was to receive the exemption as described by the Legislative Counsel.​​

​There need be no changes in legislation, but only clarification by LC that it is contrary to the constitution and the people's wishes, and your own wording in the guidance given voters, that veterans rated TDIU (total disability for individual unemployability) be denied their constitutional protections.

Colorado anchors this exemption on the federal VA ratings for disability. Please consider the text, and the very title of the law: 38 CFR 4.16 - "Total disability ratings for compensation based on unemployability of the individual."

To describe Referendum E, you told the voters:

How does the program work? Homeowners pay property taxes based on the value of their home and the tax rate set by the local governments where they live. Referendum E reduces the taxable value of a qualified veteran's home by one-half of the first $200,000 of the home's value, thereby lowering property taxes owed on the home. The state legislature can adjust the $200,000 amount to either increase or decrease the benefit from Referendum E in future years. Currently, the state offers the same property tax reduction to homeowners age 65 and over who have lived in their homes for at least ten years. A qualifying veteran who is also eligible for a reduction in property taxes as a senior cannot claim both reductions.

The dollar amount of the tax reduction will vary among homeowners depending upon the local property tax rate, the home's value, and the amount of the exemption. Table 1 provides examples of how Referendum E reduces property taxes based on the average statewide property tax rate and the current exemption level. 

Who qualifies for the tax reduction? Homeowners who have served on active duty in the U.S. Armed Forces and are rated 100-percent permanently disabled by the federal government due to a service-connected disability qualify for the tax reduction in Referendum E. Colorado National Guard members injured while serving in the U.S. Armed Forces also qualify. 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. Nationally, less than one percent of veterans have a 100-percent permanent disability rating. About 2,200 veterans are expected to qualify for the property tax reduction in Colorado.

​Please help provide these constitutional protections due Colorado's disabled veterans thru the referendum approved by the people of this state. Exclusion of this group of veterans, termed by the VA as "total disability for individual unemployability"is  clearly contrary to the people's wishes as proposed by the Legislative Counsel.

attached: legislative history

Unanimous vote moves disabled veteran property tax legislation forward in Colorado legislature

IT WAS UNANIMOUS!

Yesterday after the two hour wait for a previous bill to be defeated, the Colorado House Committee on Military and Veterans Affairs approved House bill 16 – 1444. And the vote was all in favor of the proposed legislation.

Our thanks are due to Committee Chair Sue Ryden who not only sponsored the legislation but testified on its behalf as did Representative Terri Carver (Colonel, USAF, Ret.)  And also to the outstanding leg work done by the United Veterans Committee of Colorado, Senator John Kefalas, and other leaders behind this issue.

Next up? The House Appropriations Committee, to address the modest cost of bringing the laws of Colorado into alignment with our state's Constitution Article 10, Section 3.5.

VA Unemployability Disability Ratings (TDIU) – a little background for Colorado

There are two kinds of U.S. Department of Veterans Affairs– 100% and TDIU; both are total and permanent disability ratings that should be recognized for Colorado's disabled vet property tax exemption – but aren't!

VA has 100% rating for total disability for unemployability...and also total and permanent disability individual unemployability (TDIU) or often in print, just IU.  

The Individual Unemployability Benefit is equal in every way to a 100% Schedular rating. The compensation is 100% and that dollar amount is equal to both ratings.  This VA permanent disability rating of TDIU meet Colorado's constitutional requirements for the disabled veteran property tax exemption.

(Note: VA has a temporary version of 100%, which is not eligible for the exemption as it is temporary, not permanent as the Colorado constitution and HB07-1251 require.)

This is the rating CDMVA should reject, not the permanent TDIU. All TDIU ratings are permanent, unless the veteran’s health improves and VA determines employment is possible.

If the veteran is VA-rated as 100% Schedular, he or she may work at any job they are capable of doing. The TDIU veteran is proven unable to hold "gainful employment." Nationwide, about 330,000 disabled veterans are rated TDIU. The IU veteran completes a yearly VA Form 21-4140 to verify that there has been no employment in the previous year. 

More about TDIU:

If awarded, this benefit allows the veteran to receive the total disability rating if he/she is proven unable to secure any gainful employment but only for reasons of very serious line-of-duty injuries worse than standard VA tables anticipate. Frequently state or VA experts will evaluate veterans using Certified Rehabilitation Specialists.

For TDIU, VA specifies basic disability ratings that reach the following levels:

a) a single service connected disability rated at 60% or more, or but which, in fact, is totally disabling

b) the result of 2 or more service-connected disabilities where the total rating is 70% and at least one disability is 40% or more and, in fact, are totally disabling.

This type of claim is automatically considered by the VA Regional Office whenever the Veteran’s service-connected impairment ratings reach the above levels. 

Should TDIU disabled vets qualify for Colorado's disabled veteran property tax exemption? Yes, we believe so, based on several points:

     1. Referendum E's Blue Book analysis clearly included veterans made unemployable due to line-of-duty injuries, and was overwhelmingly approved by the voters.

"Who qualifies for the tax reduction? Homeowners who have served on active duty in the U.S. Armed Forces and are rated 100-percent permanently disabled by the federal government due to a service-connected disability qualify for the tax reduction in Referendum E. Colorado National Guard members injured while serving in the U.S. Armed Forces also qualify." 

The Blue Book described totally disabled veterans eligible for the benefit:

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

But note that the same description, those same qualifications can apply to TDIU vets:

• Similarly, veterans are rated TDIU when an unusually severe mental or physical line of duty injury makes it impossible this specific veteran to hold a job and the disability is lifelong. 

 

Nationally, less than one percent of veterans have a 100-percent permanent disability rating. About 2,200 veterans were expected to qualify for the property tax reduction in Colorado.

     2. Article X Section 3.5 in the Colorado constitution describes the qualifying points of a veteran's disability for the tax exemption, and VA Veterans Benefits Administration confirmed that VA's TDIU rating has the same qualifiers:

 "(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. 

"Unemployability" VA Total & Permanent Disability Rating (TDIU) for Vets With Line-of-Duty Injuries – Colorado's unique exception

Colorado is unique among US states in distinguishing VA line of duty permanent and total unemployability ratings (TDIU)) from VA's other permanent and total disability schedular rating.

Only Colorado denies TDIU totally and permanently line-of-duty rated vets the state property tax exemption provided in the state constitution's Article X Section 3.5 by somehow considering this VA classification of veterans different than VA's other category of 100% disabled veterans.

No other state in the Union treats TDIU disabled vets differently than 100% schedular vets. To 49 other states, both VA 100% disability ratings are treated the same. The only difference is that TDIU vets are rated so disabled that they are unable to work.

NOTE: PDIU & TDIU have been used interchangeably, especially by older vets like me. TDIU is the current proper VA term.

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?

DISCOVERED – A 2010 DOLA Reference to "Unemployability"

DOLA brochure           

Days and days have been spent trying to pin down how the state's basis for its current barrier to VA permanent and total disabled unemployability (TDIU) ratings and just how it grew into policy. Perhaps one such source document was found this evening, published in 2010 by the Department of Legislative Analysis (DOLA.) But nothing so far any earlier than 2010.

We learned that the 2006 Referendum E voter summary specifically described unemployability issues for the electorate to approve in this constitutional amendment. ("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.") That's what the voters were asked to consider. They approved, but the Legislature dropped from statutes along with military 100% disability retirements. Ge3.5t the point? The Legislature in effect changed the Constitution by statues which failed to encompass the full range of Article X Section, leaving CMDVA unable to follow the Constitution's provisions and stuck with the flawed statute instead.

Article X Section 3.5 simply mentioned "permanent, 100% service connected, total disability" VA ratings with nothing at all to eliminate or somehow disqualify TDIU. We learned that CDMVA said the department had "legislative guidance" to exclude VA TDIU, despite the Constitution and the subsequent enabling legislation passed in 2007. In the 2006 ballot information, voters were told Referendum E was to address vets who were "100-percent permanently disabled when a mental or physical injury makes it impossible for the average person to hold a job." The voters did not vote to bar unemployability ratings but specifically to include that rating for property tax exemption.

Did the legislators decide to override the electorate after Article X Section 3.5 was added to the Constitution? Why did CMDVA end up with its rules being 180º away from what voters approved? How did the Constitution's provision for CDMVA to recognize military service total disability retirements disappear from subsequent statute ?

Exemption application forms, county web pages and various unofficial sources mention that VA unemployability awards were unacceptable to CMDVA, but nothing on a state form. CallinguCMDVA yields the same negative answer - "not acceptable." We found nothing else from the State Until this evening, discovered on the Colorado Legislative Council web page.

Tonight, the earliest info we've been able to dig up is a 2010 DOLA-published two-page flyer titled "PROPERTY TAX EXEMPTION FOR DISABLED VETERANS IN COLORADO." Now, there's nothing official about this and it is an information-only type document, and it came out four years after the Constitution's change.

DOLA wrote, "VA employability awards do not meet the eligibility requirements." This 2010 brochure is the earliest document we can find addressing unemployability, and the only state document. We've found nothing more official on which CMDVA policy was based.

Will Politics Play a Role Against Veterans' Needs?

Maybe the question should be – will legislators find a way to use veterans' rights and needs to attack the opposing party? With veterans' issues founded in the Constitution, we think not. Especially not, because we've seen leaders in the Senate and the House, from opposite parties, push for late bills.

Folks in the know about Colorado politics remind us that corrections in our disabled veteran property tax exemption face hurdles, especially if legislation is involved rather than a constitutional challenge at the Supreme Court.

Too often, perfectly worthy bills are assigned to committees which have nothing to do with the bill so that failure is certain. For instance, automobile safety bills assigned by the president of the Senate or the speaker of the House to the Committee on State, Veterans and Military Affairs. That's known as referring bills to a "kill" committee.

So, not only do we have to hope leadership in Denver will obey their oaths of office to support the Constitution and bring statues into accord with it, but we have to hope they don't find in the process a way to attack the opposite party and use "kill" committees. Finally, we have to hope the Legislature views veterans' rights under Article X Section 3.5 to be something they will permit us to finally enjoy by passing essential legislation. Too much to hope for? Perhaps.

The problem is felt heavily by the electorate. Bills might be important problem-fixers, but legislative in-fighting makes it far more important for parties to find ways to hurt each other rather than serve the electorate. The worst of these abuses comes when really important legislation is introduced by one party but blocked by the other only to keep the introducing party from getting credit for good legislation.

Finally, the problem can be that this is the veterans' problem, not our legislators'. Their disinterest might just leave us abandoned.

A little history - Colorado's Disabled Veteran Property Tax Exemption

Let's look at history...

"Unemployability" is specifically cited by CMDVA and the county governments as an unacceptable VA disability rating. While nothing in the Constitution or the 2007 enabling legislation bars VA unemployability ratings for permanent and total 100% service-connected veterans, CMDVA staff reports this has resulted from casual, unofficial legislative guidance after the statute was on the books. Today, the only written basis for barring unemployability ratings are some counties' application forms (hardly a legal foundation) and the CMDVA web site. It is barred because CMDVA says so, not because of any statute or Constitutional provision.

But history tells a fuller story. Colorado's referendum measures are described in detail by the Legislature at their web site, Colorado Ballot Analysis. Amazingly, there we read that unemployability was a substantive issue specifically provided for in the various drafts, the Blue Book and the final ballot analysis given the electorate to consider:

"Who qualifies for the tax reduction? Homeowners who have served on active duty in the U. S. Armed Forces and are rated 100-percent permanently disabled by the federal government due to a service-connected disability qualify for the tax reduction in Referendum E. Colorado National Guard members injured while serving in the U.S. Armed Forces also qualify. 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. Nationally, less than one percent of veterans have a 100-percent permanent disability rating. About 2,200 veterans are expected to qualify for the property tax reduction in Colorado.
What are the fiscal implications? Referendum E affects property taxes paid beginning in 2008. The average property tax savings for those who qualify will be about $466. The total reduction in property taxes is estimated to be about $1 million in the first year. The state is required to reimburse local governments for the reduction in property tax revenue resulting from Referendum E."

When Referendum E was finally referred to the electorate to vote on, there was no unemployability language like the voter summary contained, and Article X Section 3.5 simply mentioned the specific qualifiers. The words "100% percent (1) permanently (2) and totally service-connected disabled (3)" were used. These are what the Constitution's Article X Section 3.5 requires CMDVA to require of veterans seeking the disabled veteran property tax exemption. "Unemployability" does not appear in the Constitution and that VA rating doesn't conflict at all with the Constitution's specifications.

The US Department of Veterans Affairs Veterans Benefits Administration confirmed that it has two such ratings. One is for 100% service-connected illnesses or injuries, and the other is for permanent and totally disabled 100% service-connected unemployability. VA generally refers to the latter as "TDIU" or "PDIU." Nothing in the Constitution or the subsequent statutes bars CMDVA from accepting claims of both groups but the state only accepts the first category. 

In doing this, about half of the eligible veterans are barred from the protection intended for them by the electorate who approved Referendum as Article X of the Constitution.

What the people approved should be the law of the land. If unemployability, or enlisted, or commissioned, or value of property, or age, or kind of injury, or type retired, or any other qualifier is to be applied in evaluating a veteran's application for the disabled veteran property tax exemption, that should be spelled out in law which reflects the Constitution. Only permanent, total, 100% service-connected and disabled are the words of our Constitution.

Permanent VA unemployability ratings were described by DOLA in the Blue Book for approval by the people and should not be disqualified by the state.

Solution? Good hearts in CDMVA and the Legislature?

There's hope in Colorado!

Legislative leadership, CDMVA expertise and United Veterans Committee support might craft a solution to the descriptions between the Colorado Constitution's Article X Section 3.5 and the 2007 statute defining "eligible veteran."

If so, more disabled Colorado veterans can be protected by the disabled veteran property tax exemption.

Thanks to all who care about us!

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