Originally posted at www.foxandhoundsdaily.com
Plaintiffs are appealing Los Angeles County’s requirement of a bag “charge” because they say the charge is a violation of Proposition 26 passed by voters in 2010. You might remember Proposition 26 – another in a long line of measures the voters have approved to put some control over taxes and what government bureaucrats fondly call “revenue enhancements,” which come under different names.

Under Proposition 26, voters demanded a vote on “any levy, charge or exaction of any kind.” Los Angeles County decided to put a charge on paper bags when plastic bags were eliminated. However, L.A. officials declared that the government wasn’t collecting a fee for the use of paper bags it was the retail establishments that were collecting the fee. It so happens that those establishments were using the fee for purposes outlined by the government: For costs associated with complying with the ordinance; for actual costs providing recyclable bags; and for educational materials or campaigns for reusable bags.

As I wrote last year when the original lawsuit was filed by plastic bag manufacturer Hilex Poly and residents charged for using paper bags in place of plastic: “There is a precedent setting nature to this lawsuit. At issue: Can businesses be required to collect monies and spend them on programs advocated by the government that requires the charge? Is that not another way to tax?”

Upholding the will of the voters requiring a vote on such charges is an important test given that this is one of the first court challenges to Proposition 26’s mandate. When the Superior Court ruled against the plaintiffs, they decided to appeal because of the precedent setting nature involving the recently approved law. Said James Parrinello, senior litigation partner at Nielsen Merksamer Parrinello Gross & Leoni representing the plaintiffs, “L.A. County’s ten-cent bag ‘charge’ clearly violates the voters’ will. We are confident in our case as it moves to the appellate court and believe the courts ultimately will strike down the illegal bag tax imposed by L.A. County.”

Given the voters echo of the two-thirds vote requirement to approve taxes and fees over three decades — Prop 13 (1978), Prop 62 (1986), Prop 218 (1996), Prop 26 (2010), — one has to wonder when elected officials will get the message that the voters keep repeating.

Joel Fox is the Editor of Fox & Hounds and President of the Small Business Action Committee