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.

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 VOTERS APPROVED IN 2006 FOR DISABLED VETERAN PROPERTY TAX EXEMPTION

BUT WE DIDN'T GET IT!

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.

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.