Fight over Aspen food-tax rebate |

Fight over Aspen food-tax rebate

A lawsuit aimed at overturning the city of Aspen’s annual food-tax rebate to city residents has bogged down in legal minutiae for the moment, but is expected to go forward.

According to City Attorney John Worcester, the lawsuit filed last April is currently in a holding pattern.

“The ball’s in their court,” said Worcester, explaining that a federal judge recently ruled that the case will be “tried on its merits” and then it will be decided whether it is a valid class-action lawsuit.

The lawsuit, which is to be heard in the U.S. District Court in Denver, was filed as a class-action suit on behalf of all nonresidents who have purchased food in Aspen. The plaintiffs in the case are Steven A. Martino of Mobile, Ala. and two Roaring Fork Valley residents, Jon and Martha Ronay of Basalt.

The lawsuit claims that the city’s food-tax rebate, which is offered every year to bona fide Aspen residents, is unconstitutional.

The tax, created in the early 1970s as a way to soften the high costs of living in Aspen, provides a $50 check to every full-time resident. The law that created the tax defines a resident as someone who has lived in Aspen the entire year previous to the refund deadline.

According to the lawsuit, the program unfairly discriminates against everybody who shops for food in Aspen but is not a resident.

Worcester said the usual procedure in such cases is for the suit to be confirmed as a class action through a process that involves “identifying the class.”

In this case, however, the difficulty identifying the class of nonresident food purchasers is what caused the court to reverse the normal trial process.

“The court’s not going to be able to identify a class until it understands the legal issue,” Worcester said, adding that there are different potential parameters for the “class.”

“Is it every tourist who has ever visited Aspen and bought food here, or is it just people in the last two or three years?” he asked.

Or, he said, the class could be limited to valley residents who regularly buy food here but do not live in Aspen and are not eligible for the tax rebate.

Attorney Moses Garcia, a Denver lawyer who is working on the case on behalf of the plaintiffs, said Friday that the next step in the case will be the “first phase of discovery,” when the attorneys inform each other of the particulars of their cases and begin the process of obtaining depositions from those to be involved in the trial.

Garcia said the other attorney working for the plaintiffs, Steve Dampier of Mobile, Ala., is now working on the first draft of the documents that are to be submitted to the court and sent to Worcester.

Dampier could not be reached for comment Friday.

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