Fluoride Action Network

County appeals ‘Rules of game were changed’

Source: Davis County Clipper | January 15th, 2008 | By Melinda Williams
Location: United States, Utah

FARMINGTON — Davis County has asked the Utah Supreme Court to reconsider its decision awarding attorney’s fees to Utahns for Better Dental Health.

Late last month the court ruled the Davis County clerk/auditor’s office would have to pay the attorney’s fees to David Irvine, UBDH — Davis’s counsel.

But the Davis County clerk has asked the Supreme Court to reconsider its decision.

Davis County Chief Civil Deputy Attorney Gerald Hess said the request was made because the court changed the standard of review and looked at the case “de nova,” that is, afresh, not relying on the previous standard. “You prepare a case based on a particular standard; when the rules change you lose,” Hess said. He said the county felt “the rules of the game had changed.”

In asking that the court review its decision the county raised two arguments — first that it objected to the award of fees for all of the appeals in the case and that UBDH —Davis’s two appeals from the district court’s denial of attorney’s fees were not in the public’s best interest.

County attorneys contend that if they had known earlier that the court might award fees for both appeals they would have attempted to settle.

But Utahns for Better Health officials don’t buy that argument.

“The county and Steve Rawlings (Davis County clerk/auditor) should have known from the beginning that they might lose on appeal, but they expressed no interest in discussing settlement, even when the court ordered the parties to attempt to mediate the dispute,” said Beth Beck, who chairs the pro fluoride UBDH-Davis. “Further,” Beck said, “It’s just very interesting that clerk Steve Rawlings now professes such concern about spending public money to settle the suit, when from the beginning he had no reluctance at all to spend public money to defend the illegal anti-fluoride petition.”

That decision, according to Rawlings, was made mainly by then-County Attorney Mel Wilson.

UBDH-Davis, sued the clerk/auditor’s office and clerk/auditor Steve Rawlings in 2002 after Davis County placed the initiative on the ballot for a revote following a challenge from anti-fluoride activists. Pro-fluoride groups said the revote was a misinterpretation of the state’s referendum law.

Second District Court Judge Glen Dawson ruled in favor of UBDH —Davis, but did not grant payment of fees.

Originally UBDH — Davis requested $45,000 in attorney’s fees, but Dawson rejected the award in 2003 and the pro-fluoride group appealed the decision to the Utah Court of Appeals, which sent their case back to Dawson in August 2005.

At that point the group’s claim for attorney’s fees rose to $145,000 because of additional costs incurred in research and the fees related to the appeal.

Davis County voters approved fluoridating the county’s drinking water (except in Woods Cross) in the 2000 election by a 52 percent vote.

It was then ordered to be implemented in 2001. Later that year, a group opposing fluoridation brought an initiative petition to Rawlings calling for a revote on the issue.

UBDH —Davis argued the revote was illegal because the petition should have been filed as a referendum, not as an initiative.

Dawson agreed that the revote should be pulled from the ballot and UBDH —Davis asked that attorney’s fees be awarded to the group. Even though Dawson had ruled in favor of the pro-fluoride group, he did not award payment of fees.

The case went to the Supreme Court which ruled late last month that the county would have to pay attorney Irvine’s fees.