Legislative History of HB07-1251, statutes to implement Referendum E [Article X Section 3.5 , "Disabled Veteran Property Tax Exemption"]

I learned more history about the senior and disabled veteran property tax exemption, based on some research conducted in the Capital Thursday morning. Kind folks in the Colorado Legislative Counsel's office provided a.complete history of the evolution of HB07-1251, the statute which implemented Article X Section 3.5 of the constitution, following approval by the electorate of Referendum E. Our next step will be listening to the audio tapes of deliberations.

CLC's Blue Book, the Legislature's "sales brochure" promoting the referendum, described the veterans to be covered by the referendum:

"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."

The first version of HB07-1251's description of qualified veteran was exactly as per Article X Section 3.5 of the constitution as it remains today:

 (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. 

The next version of HB07-1251 ("Engrossed" version) made the changes in definition of qualified veteran. Those changes remained static thereafter until signed by the governor.

(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 United States department of veterans affairs as one hundred percent permanent and total disability pursuant to a law or regulation administered by the department.

(Simply dropped from the final statute was the last phrase of the constitution., "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.")

CONCLUSION:
1. In its Blue Book for 2006, the Legislature obviously included, and the electorate approved, Colorado veterans whose disabilities were total, permanent, service-connected and that made veterans unemployable. In the actual wording for Referendum E, however, no specific mention was made of unemployable terms, and still the VA rating for unemployability complies with the referendum's specifics. CdmVA ends up refusing these totally disabled vets the exemption, opposite the people's goal.

2. The Legislature's first pass at legislation also had no reference to employability issues but did specify military permanent and total disability retirements as qualified for the property tax exemption. By the second version (Engrossed) military disability retirements were not mentioned, and that version of the definition was carried into the stature and into effect today.

3. Colorado Division of Veterans Affairs complies with the statute, not the constitution, and denies property tax exemption to two groups of disabled veterans specified by the people when we amended the constitution to add the exemption to veterans. For some reason not apparent in the legislative history of HB07-1251, "unemployability" went from acceptable to specifically refused by CDMVA. The constitutional provision recognizing military service disability ratings was cut from HB07-1251 in the Engrossed version, without comment...it just disappeared. CMDVA also excludes those veterans which obviously conflicts with the constitution.

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!

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

CLICK FOR BRIEFING PACKAGE

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.

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.

Colorado's Legislative Council – did they let veterans down on Referendum E?

I'm learning so much as I follow the trail of Colorado's disabled veteran property tax exemption, the 2006 Referendum E.

What I've learned about is Colorado's legislative process. Reading about it I've got a better picture about the history of our disabled vet property tax exemption and problems now surfacing.

The steps begin with the Legislature sending the language of a referendum to the Legislative Council to insure its legality, compliance with style and format. That means the property tax exemption was carefully worded by the Legislative Council for the specific words by which the Constitution would be amended, and also the words by which the electorate would be guided to an understanding of the referendum adequate to have an informed opinion when voting.

You can see what they did below in the referendum's plain-language description. Attention is drawn to the highlighted words in the "who qualifies for the tax deduction" section. Consider...this was written by the Legislature's "experts"??

"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."

After the voters approved Referendum E by 78% and by it, created Article X Section 3.5 of the Colorado Constitution, it became the job of the Legislature to craft enabling legislation. Once done, that headed over to the Colorado Legislative Council for the same reasons...legal clarity, compliance with the Constitution, form and style. This is where serious problems popped up. Legislation did not match the newly-amended Constitution! The electorate was duped.

What the Legislative Council approved for the Referendum E'/Article X Section 3.5 enabling statute drifted far from what the electorate were told they'd voted for. Struck from the statute was a very important group of veterans the state now cites statute to deny the exemption, even though this category of disabled vet is spelled out in tht Cinstitution. Vets whose injuries leave them unable to work are termed "permanent and total service connected unemployability" ratings. That's bad because the Legislative Council blocked about half of the veterans the electorate voted to help! From the 2006 Blue Book:

"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."

Disabled veterans with VA's unemployability disability rating were specified as what the voters were helping, became in the administration of the statute by CMDVA a group specified as unqualified.

That's a complete 180º shift away from the Constitution, enough to disappoint this veteran! 

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.

Our Colorado Constitution – Why isn't it followed?

They all swore to uphold it.

The Colorado Constitution specifies in Article X Section 3.5 that total disability military service retirements qualify veterans for the state's disabled veteran property tax exemption. Colorado's Department of Military and Veterans Affairs has a policy against that ever since the Constitution was amended by Referendum E in 2006 and denies the benefit of the exemption to qualified disabled veterans.

Article XII Section 8.  Oath of civil officers. Every civil officer, except members of the general assembly and such inferior officers as may be by law exempted, shall, before he enters upon the duties of his office, take and subscribe an oath or affirmation to support the constitution of the United States and of the state of Colorado, and to faithfully perform the duties of the office upon which he shall be about to enter. 

Article X Section 3.5 (ignored part in red, abused part in blue)(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. 

Not only have the last fifteen words in the Constitution's definition of eligible veteran been dropped in the 2007 statute, CMDVA imperfectly follows the requirement to extend the exemption to vets "rated by the federal department of veterans affairs as one hundred percent permanent disability benefits...pursuant to a law or regulation administered by the department." 

This partial state failure is their denial of claims from veterans holding VA's 100% permanent and total service connected disability for unemployment rating. The Constitution and subsequent legislation make no mention of "unemployability" ratings being barred.

Thus, one of two VA total service-connected disability ratings is abused, even though it complies word-for-word with the Colorado Constitution.

Today - Spoke to the United Veterans Committee

Thanks to kind and skillful editing by Bill Hanna, we circulated a single-page flyer touching on the basics of Colorado's difficulty to generously administer the Constitution's Article X Section 3.5 for disabled veterans property tax exemption.

Further, we even met with two C-123 Ranch Hand veterans plus a VA lady whose husband is one of our post-Vietnam veterans and his Agent Orange claim has sailed through just fine! That unexpected piece of good news is a blessing for my entire week!

We can only hope enough veterans and our advocates raise the question – why isn't the Colorado Constitution faithfully followed in this important area?

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.

Some Legislative History of the Disabled Veteran Property Tax Exemption

The problem: Colorado's voters defined "qualified disabled veteran via a Constitutional amendment (Referendum E). Presently the Colorado Division of Veterans Affairs unfairly excludes from the benefit qualified veterans with permanent "unemployability" VA awards, and also excludes veterans directly retired by the military services per permanent and total disability.

Military disability retired property tax relief for Colorado's totally disabled military veterans is based on the 2006 amendment to the state Constitution. The wording of the title of Referendum E is inclusive of any "United States Military veteran who is 100% permanently disabled due to a service-connected disability." 

Nowhere in the Constitution nor other legislation does the "unemployability"appear. It was added as an exemption only by extra-legal preference of the CDMVA, contrary to the Constitution.

Here is the full title, approved by the voters:

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 Here's the text of Referendum E's definition of "disabled veteran:"

(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 yGUARD 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, OR THE DEPARTMENT OF THE ARMY, NAVY, AIR FORCE, OR HOMELAND SECURITY. 

(note: There is a minor conflict between the referendum's pension language and its requirement that disabilities be service-connected – the VA pension program is based on low-income and need, not service-connected disabilities. There is no such thing as 100% service-connected disability pensions.)

The 2007 Legislature "fine tuned" Section 3.5 of Article X from the 2006 Constitutional amendment. It bypassed the voter-approved "any veteran," dropped the pension, but  very improperly redefined and restricted the definition of "qualifying veteran" by failure to adhere to the broad and inclusive language of the voter-approved referendum.

"(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 United States department of veterans affairs as one hundred percent permanent and total disability pursuant to a law or regulation administered by the department. "

The 2007 Legislature errored in its modification of the definition of "qualifying veteran" away from that approved by the electorate and per the Constitution. This amounted to an ex post facto law depriving many formerly qualified disabled veterans from the Constitution's protection regarding property tax. Further, this violates the US Constitution by depriving the affected veterans of their property (the tax benefit) without due process. From the Colorado Constitution's Bill of Rights:

"Section 11. Ex post facto laws. No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges, franchises or immunities, shall be passed by the general assembly."

The "Unemployability" TDIU estriction on Disabled Veteran Property Tax Exemption, Overturning Voters' Constitutional Amendment

Wording on Colorado counties' disabled veteran property tax exemption forms:

The 2007 enabling legislation forces CMDVA to a somewhat restricted eligibility compared to the broader constitution's provisions::

"An individual who sustained a service-connected disability that has been rated by the U.S. Department of Veterans Affairs as 100% “permanent and total.” VA unemployability awards do not meet the requirement for determining an applicant’s eligibility."

Readers will please note that the word "unemployability" appears only on county forms and various state brochures describing the disabled veteran property tax program: nowhere does that exclusion exist in the law! It was simply added by CDMVA acting on legislative input.