A Pitkin County District Court judge is set to hear arguments Wednesday from parties involved in a lawsuit filed in 2012 over an ordinance that set up the city of Aspen’s 20-cent supermarket bag fee.
The city’s 2011 ordinance bans plastic-bag distribution at Clark’s Market and City Market, and the city collects a 20-cent fee on each paper bag shoppers purchase in lieu of using reusable bags. The lawsuit, filed by the Colorado Union of Taxpayers Foundation, argues that the fee is unconstitutional because local voters weren’t given the opportunity to decide the issue.
The city has collected approximately $88,000 from the fee since May 2012, when the program was implemented, according Aspen’s Environmental Health Department.
The suit against the city of Aspen, former Mayor Mick Ireland and four councilmen was initially filed in Pitkin County District Court in August 2012 by the Mountain States Legal Foundation on behalf of the plaintiff, the Colorado Union of Taxpayers Foundation. Local members of the plaintiff include retired tax attorney Maurice Emmer and frequent city critic Elizabeth Milias, who operates the Red Ant political blog.
The case, set to be resolved through summary-judgment motions, will be overseen by Judge John F. Neiley. Oral arguments are scheduled for 9 a.m. Wednesday in Glenwood Springs.
Aspen Assistant City Attorney Debbie Quinn said the question is whether the bag charge is a fee or a tax.
“Our basic argument is that it’s a valid fee that governments are allowed to charge to fund particular programs and it wasn’t a tax,” Quinn said.
She added that she’s looking forward to having the case resolved, and she anticipates a written decision from Neiley sometime after arguments have been heard.
Attorney Jim Manley, representing the Colorado Union of Taxpayers Foundation, said the bag charge requires voter approval under the Taxpayer Bill of Rights.
“It does not fund a particular service utilized by the people who are forced to pay it, and the amount of the charge was set without any relationship to the services the city is providing,” Manley said. “All we’re asking for is for the voters to have a chance to weigh in. That’s all we want. And if the city had asked to begin with, we wouldn’t be in court.”
In 2011, Councilman Torre successfully pushed for the measure. Grocers are permitted to keep as much as $100 per month of fees to fund program costs. For the first year, that amount was $1,000 per month.