Supreme Court will hear Aspen bag-fee case
September 7, 2016
The Colorado Supreme Court announced Tuesday it will entertain arguments from a nonprofit that claims the city's 20-cent charge on disposable paper bags at Aspen's two supermarket should have gone to voters.
Both the Colorado Court of Appeals and the 9th Judicial District Judge previously ruled that the fee is constitutional and did not require a public vote because it is not a tax.
"It does allow us to hopefully get a favorable decision by the Supreme Court," said Jeffrey W. McCoy, an attorney for Mountain States Legal Foundation, which has represented the Colorado Union of Taxpayers in the dispute with the city. "At least the Supreme Court thinks it's important enough to consider."
Had the Supreme Court elected not to hear the case, the appellate court's decision, issued in November 2015, would have stood.
In 2011, the City Council passed a bag-fee ordinance requiring shoppers to pay 20 cents for use of a paper bag supplied by Aspen's two grocers, City Market and Clark's Market.
The purpose of the charge was to discourage consumers from using paper bags to reduce waste, while encouraging them to take reusable bags with them while shopping for groceries.
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How much better reusable bags are for the environment than paper bags, or the plastic ones that Aspen's two supermarkets no longer offer, has been a matter of debate. An article published Sept. 2 by The Atlantic cast doubt on the contention that reusable bags are actually better for the environment than plastic and paper ones.
The ongoing litigation of Aspen's bag fee, however, has nothing to do with the environmental merits of grocery bags, regardless of their form.
Instead, the Colorado Union of Taxpayers, which initially sued the city in Pitkin County District Court in August 2012, has argued that the bag charge should have been subjected to the Colorado's Taxpayer's Bill of Rights, which requires voter approval before a government imposes new taxes.
The city, meanwhile, has successfully argued that the bag fee is just that, a fee that shoppers aren't required to pay because they can bring their own bags or not use a bag at all.
The ordinance allows Aspen's two grocers to keep a maximum of $100 a month in bag fees. The rest of the money helps fund the city's Waste Reduction and Recycling Account, which provides reusable bags to visitors and residents.
The Court of Appeals, in its ruling, stated 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 resident and visitors. … The waste-reduction fee provides a direct benefit to those paying the charge by making reusable bags available to them."
The Colorado Union of Taxpayers countered in May, in what's called a "petition for writ of certiorari" to the Supreme Court, that the appellate court ignored its argument that "Like a sales tax, grocers must collect the bag charge from customers and remit the proceeds to the city. … Indeed, portions of the ordinance were modeled after city sales tax provisions. … If the judgment of the Court of Appeals stands, then governments and courts will have little direction on what charges require a vote, and what charges are exempt from TABOR."
City Attorney Jim True said the city will simply stick to its arguments that were successful before the two lower courts — which was that shoppers have the option to pay a fee that supports a city service.
"We'll continue on the path we've been on," he said. "My understanding is that the arguments aren't new, but it's hard to evaluate why the Supreme Court might grant certiorari (decide to hear the case), but we'll address it."
The matter won't be decided this year, based on the Supreme Court's Monday order.
The Colorado Union of Taxpayers has 42 days from Monday to file its opening brief, while the city will have 35 days from receipt of the opening brief to file a response. Another 21 days will be given to the union to file its response, before the parties make oral arguments in front of the high court.
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