Petition: Aspen bag fee loosens TABOR’s grip

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 |

Let the Aspen voters decide.

That’s the thrust of a petition filed last week by the Colorado Union of Taxpayers Foundation, which is asking the state Supreme Court to make a final decision on the city’s paper-bag fee that’s charged at Aspen’s two supermarkets.

The foundation submitted a petition for writ of certiorari with the high court Thursday. If the court accepts the petition for writ of certiorari, it would hear the case before issuing a ruling. Should the Supreme Court decide not to hear the case, the Court of Appeals’ November decision upholding former 9th Judicial District Judge John Neiley’s order, delivered in August 2014, would stand.

“Our primary motive is to just have this go to the Aspen electorate,” said attorney Jeffrey W. McCoy of the Mountain States Legal Foundation, which represents the Colorado Union of Taxpayers.

The goal of the litigation isn’t about determining whether the 20 cents consumers pay for paper bags is good for the Aspen community, McCoy said. The City Council passed the ordinance in 2011 to encourage the use of reusable bags to reduce waste.

McCoy said he believes that the Taxpayer’s Bill of Rights, also known as TABOR, should have precluded the council from passing the ordinance and voters should have decided instead.

So far, the two lower courts have disagreed since litigation ensued in August 2012.

The Appeals Court explained in April, when it refused to rehear the case, that 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 residents and visitors. … The waste-reduction fee provides a direct benefit to those paying the charge by making reusable bags available to them.”

But the lower courts, McCoy’s petition says, “are confused as to the difference between a tax and a fee for purposes of TABOR.”

Letting the city’s bag charge stand also will set a precedent in Colorado because “governments and courts will have little direction on what charges require a vote, and what charges are exempt from TABOR,” the petition says.

The petition argues the bag fee actually is a tax because it raises revenue for the municipal government. A fee, however, is implemented to fund a government service, it claims.

“The ordinary meaning of the word ‘tax’ clearly includes sin taxes,” the petition says. “Accordingly, the citizens who passed TABOR would have understood that sin taxes are covered by the amendment and need voter approval before they can be imposed.”

The city, however, has maintained that the bag charges support such government services as the reusable bags it provides to residents and guests through its Waste Reduction and Recycling Account. McCoy contends those aren’t services.

The city collected $21,919.33 in bag charges in 2012, $42,813.85 in 2013, $47,371.50 in 2014 and $52,700.60 in 2015, according to city spokeswoman Mitzi Rapkin.

The ordinance allows City Market and Clark’s Market to keep a maximum of $100 a month in bag fees.

City Attorney Jim True said he reviewed the petition last week. He said he had no comment at this time on the matter.


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