Aspen bag-fee foes to ask state’s Supreme Court to hear case

Rick Carroll
The Aspen Times
A City Market customer didn't have to pay 20 cents for a paper bag because he brought a reusable sack to the grocery store. A Colorado nonprofit claims the fee is actually a tax and Aspen voters, not the City Council, should have decided on the charge.
Jeremy Wallace/The Aspen Times |

Next stop, the Colorado Supreme Court.

After failed attempts at the appellate court level to rescind the city’s 20-cent fee on paper bags at Aspen’s two supermarkets, a Colorado nonprofit plans to see if the state’s high court will entertain its argument that the charge is unconstitutional and actually a sin tax.

On Thursday, the Colorado Court of Appeals announced it would not rehear arguments from the Colorado Union of Taxpayers Foundation, which had sued the city government and its elected officials for passing the ordinance in 2011. They have argued that the voters should have decided on the issue.

In November, the appellate court panel upheld 9th Judicial District Judge John Neiley’s ruling that the fee is constitutional and did not require a public vote.

The Mountain States Legal Foundation, which represents the Colorado Union of Taxpayers in the litigation, asked the Court of Appeals to rehear the case but was denied.

“We are planning on asking the (state) Supreme Court to review the case,” said the Legal Foundation’s attorney on the matter, Jeffrey W. McCoy.

McCoy said he will file what’s called a writ of certiorari, which asks the Supreme Court to hear the case, in May.

“We feel there needs to be a clarification between what is a tax and a fee,” he said. “We think it’s important to have a clear understanding. There’s really not a clear distinction, and we’re going to ask the Supreme Court to clarify that.”

The Supreme Court could elect to not hear the case, meaning the lower court’s order would stand.

City Attorneys Jim True and Deborah Quinn have successfully argued that the bag-fee ordinance, which only applies to Clark’s Market and City Market, was a fee. And shoppers aren’t required to buy the paper bags. They can bring their own, such as reusable bags, which the city also provides to residents and guests through its Waste Reduction and Recycling Account. The account is funded in part by fees collected from buyers of the paper bags. The ordinance allows Aspen’s two grocers to keep a maximum of $100 a month in bag fees.

The city passed the ordinance to change the mindset of local consumers, urging them to reduce waste.

McCoy said the intention of the ordinance is not the issue.

“We’ve always said this litigation is not about that the charge on bags is good or bad,” he said. “But we think it’s a decision that the voters should have decided on. We think Aspen’s bag charge is the quintessential definition of a sin tax.”

McCoy said they’ll present essentially the same argument to the Supreme Court if it accepts the case.

In its ruling in November, the Court of Appeals said the “primary purpose of the ordinance is to reduce waste. The top priority for the use of the funds collected from the waste reduction fee is to provide usable bags to both resident and visitors. … The waste-reduction fee provides a direct benefit to those paying the charge by making reusable bags available to them.”


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