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?

What needs to be fixed to comply with Colorado's Constitution Article X Section 3.5?

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Easy. Everyone swore an oath to uphold the Constitution and we can count on our public servants to correct legislation offensive to the Constitution. Their oaths, plus the clear knowledge that inaction by the Legislature fails Colorado's disabled veterans by denying us our Constitution's protection, make the Legislature's duty obvious.

Easy because it is so very clear. Current defective statutes addressing Article X Section 3.5 so clearly offend the Constitution we can easily summarize what's needed.

Corrective Action:

1. Military service total disability retirements must have enabling statute
2. All barriers to VA's total disability individual unemployability (TDIU) permanent ratings must be removed, but do not need corrective legislation. Regulatory correction suffices because each element of TDIU already satisfies constitutional requirement NOTE: RECOMMENDED: correct the defect in the entire program's failure to accommodate widows of service members who die on active duty, without a chance to qualify for veteran's status 

Justification:

1. Military service total disability retirements are clearly specified in Article X Section 3.5 and must be made acceptable to CDMA
2. The electorate exercised its power to amend the Constitution and approved Referendum E. Voter guidance from Colorado Legislative Council described unemployable disabled veterans, and each specific in Article X Section 3.5 as well as subsequent legislation detailed "permanent, service-connected, 100% total" as qualifying elements. The US Department of Veterans Affairs Veterans Benefits Administration confirmed each element is also an element of the VA permanent TDIU disability rating, and VA has offered to brief CDMA and other Colorado agencies.

Code of Federal Regulations on Unemployability

Following is the Code of Federal Regulations governance of VA unemployability ratings. Note that VA considers Permanent and Total Unemployability awards (TDIU) to be "a rating of 100 percent service-connected disability based on individual unemployability"

§3.340   Total and permanent total ratings and unemployability.

(a) Total disability ratings—(1) General. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule.

(2) Schedule for rating disabilities. Total ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent evaluation or, with less disability, where the requirements of paragraph 16, page 5 of the rating schedule are present or where, in pension cases, the requirements of paragraph 17, page 5 of the schedule are met.

(3) Ratings of total disability on history. In the case of disabilities which have undergone some recent improvement, a rating of total disability may be made, provided:

(i) That the disability must in the past have been of sufficient severity to warrant a total disability rating;

(ii) That it must have required extended, continuous, or intermittent hospitalization, or have produced total industrial incapacity for at least 1 year, or be subject to recurring, severe, frequent, or prolonged exacerbations; and

(iii) That it must be the opinion of the rating agency that despite the recent improvement of the physical condition, the veteran will be unable to effect an adjustment into a substantially gainful occupation. Due consideration will be given to the frequency and duration of totally incapacitating exacerbations since incurrence of the original disease or injury, and to periods of hospitalization for treatment in determining whether the average person could have reestablished himself or herself in a substantially gainful occupation.

(b) Permanent total disability. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. The permanent loss or loss of use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or bedridden constitutes permanent total disability. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals. The age of the disabled person may be considered in determining permanence.

(c) Insurance ratings. A rating of permanent and total disability for insurance purposes will have no effect on ratings for compensation or pension.

[26 FR 1585, Feb. 24, 1961, as amended at 46 FR 47541, Sept. 29, 1981]

§3.341   Total disability ratings for compensation purposes.

(a) General. Subject to the limitation in paragraph (b) of this section, total-disability compensation ratings may be assigned under the provisions of §3.340. However, if the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age.

(Authority: 38 U.S.C. 1155)

(b) Incarcerated veterans. A total rating for compensation purposes based on individual unemployability which would first become effective while a veteran is incarcerated in a Federal, State or local penal institution for conviction of a felony, shall not be assigned during such period of incarceration. However, where a rating for individual unemployability exists prior to incarceration for a felony and routine review is required, the case will be reconsidered to determine if continued eligibility for such rating exists.

(Authority: 38 U.S.C. 5313(c))

(c) Program for vocational rehabilitation. Each time a veteran is rated totally disabled on the basis of individual unemployability during the period beginning after January 31, 1985, the Vocational Rehabilitation and Employment Service will be notified so that an evaluation may be offered to determine whether the achievement of a vocational goal by the veteran is reasonably feasible.

(Authority: 38 U.S.C. 1163)

[46 FR 47541, Sept. 29, 1981, as amended at 50 FR 52774, Dec. 26, 1985; 55 FR 17271, Apr. 24, 1990l; 58 FR 32445, June 10, 1993; 68 FR 34542, June 10, 2003]

VA Statement re: Permanent & Total Service-Connected Unemployability Ratings & "Unemployability"

In response to my inquiry, VA's Senior Management and Program Analyst at Veterans Benefits Administration, Department of Veterans Affairs emailed me the following confirmation that VA's details for permanent and total individual unemployability are worded the same as Colorado's constitution, at least, that's how the federal government reads their program and Colorado's statute.

The gentleman's name is obscured here but has been provided to CODVA authorities.

Readers here are reminded that the constitution holds that Colorado will go by ratings of the US Department of Veterans Affairs regarding eligibility for the property tax exemption, which reads: "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,"

Sxxxxxxx, Exxx, VBAVACO                      Feb 8
to me, Ben, David, Linda

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. 

Ex.. 

However, this VA opinion and the clear, very plain language in the law have proved immaterial to CODA officials. These unelected staffers simply inserted their own interpretation of Colorado's constitutional amendment and are determined to block many fully eligible veterans and their survivors now classified by VA as "permanent and total" via unemployability.

BTW, "unemployability" to VA is based solely on line of duty illnesses or injuries, and on VA's careful assessment only of the veteran's service-connected issues as being completely, totally, permanently disabling for life, and to total 100& in the overall appraisal of the veteran.