Opponents ask judge to stop Aspen bag fee

Andre Salvail
The Aspen Times
Aspen CO Colorado

ASPEN – The parties involved in a lawsuit filed last year over an ordinance that set up the city of Aspen’s 20-cent grocery-store-bag fee have agreed to try to resolve the case through summary-judgment motions, according to documents filed last month in Pitkin County District Court.

The suit against the city initially was filed in August by the Mountain States Legal Foundation on behalf of the plaintiff, the Colorado Union of Taxpayers Foundation, a Boulder-based organization whose local members include Aspen mayoral candidate Maurice Emmer and frequent city critic Elizabeth Milias, who operates the Red Ant political blog. At a March 7 status conference, attorneys for both parties set up a schedule of summary-judgment motions.

The foundation filed its motion on March 21, asking District Judge Gail Nichols to strike down the city’s 2011 ordinance that bans plastic-bag distribution at the city’s two grocery stores, Clark’s Market and City Market, and collects a 20-cent fee on each paper bag the shoppers purchase from the stores in lieu of using their own reusable bags. The city has until April 11 to respond. Other replies to motions and cross motions are due in May.

Opponents say the ordinance – which a majority of council members agreed to pass as an example of environmental stewardship – violates the state’s Taxpayer Bill of Rights because city voters weren’t allowed to decide the issue. They claim the bag fee is actually a tax.

The Taxpayer Bill of Rights, commonly known as TABOR, is a provision of the state constitution requiring a public vote before any local government can create new debt, levy new taxes, increase tax rates or institute tax-policy changes directly causing a net tax-revenue gain.

Emmer could not be reached for immediate comment on Sunday, but he has commented on the city’s action on The Aspen Times’ website.

“The issue could have been avoided by putting the issue on a ballot instead of doing it by city council fiat,” he wrote in the days after the ordinance was passed 19 months ago. “City council was warned about that at the time but dismissed the issue as ‘tea bagger’ whining. Not only did the city waste the legal resources of city attorney trying to make this work without a ballot, but now they will have to use the city attorney’s time to defend the case and, if the city loses, pay the plaintiffs’ attorneys’ fees.

“Why is the city intent on using public resources to prove a legal point that nobody cares about? Just repeal the ordinance and put it on a ballot. Or is City Council afraid that the citizens wouldn’t be enlightened enough to adopt this tax if given the choice, so omniscient city government should make the choice for the ignorant citizens?”

City Attorney Jim True has said he and former City Attorney John Worcester spent a lot of time researching the legality of the ordinance setting up the bag fee. He said it should hold up in court because the share of the revenue that the city receives through a split with the stores goes into a fund for specific environmental programs rather than the city’s general fund.

Councilman Torre, who pushed for the measure in 2011, said Sunday that although he’s not an attorney, he is confident the bag fee will pass judicial muster.

“Overall, I think the ordinance has been a success,” he said. “I think the community and visitors, as well, have embraced it.”

Torre, who also is running for mayor, said the bag fee is a “first step” in reducing plastic waste generated in Aspen and that he hopes the community will collaborate in support of other waste-management initiatives that further that goal.

He said he doesn’t understand why people would oppose the bag fee and steps to reduce plastic waste.

“This is strange legal wrangling over a positive environmental action,” he said.