In 2000, Davis County residents approved fluoridation of the public water supply.
Two years later, fluoride opponents submitted a petition for a revote and the county clerk prepared to put the matter before residents once again. However, within weeks, a judge barred the placement of the matter on the 2002 ballot.
Now, in 2007, the fight continues.
On Thursday, Utahns for Better Dental Health-Davis Inc. (UBDH) – a small group that fought tooth and nail for fluoridation – will ask the Utah Supreme Court to order Davis County to pay its legal fees of $45.034.15 for getting the revote stopped.
UBDH, which was represented in the dispute by volunteer lawyers, is seeking to overturn a decision by 2nd District Judge Glen Dawson rejecting its request for reimbursement. The organization says it upheld the will of the people by stopping an unlawful revote on a binding decision, making it eligible for the money under the private attorney general doctrine.
In Utah, attorney fees cannot be recovered unless authorized by statute or contract. Under the doctrine, first defined by the state Supreme Court in a 1994 case, a judge can award fees to a private attorney who vindicates an important public policy.
For years, “the [Davis] County attorneys and the private law firms retained by the county have been paid to defend an illegal petition,” UBDH said in a brief to the Supreme Court. “Yet the district court would deny the citizens of Davis County any right to compensate the attorneys who challenged the county’s illegal actions and prevailed.”
Lawyers for Davis County respond that under the usual “American rule,” litigants pay their own attorney fees. They said County Clerk Steve Rawlings acted in good faith by preparing to place the fluoride question on the 2002 ballot and a fee award would be punitive.
In addition, the county said “the ‘private attorney general’ theory is vaguely-defined, and invites courts to become unnecessarily embroiled in contentious political debate.”
Voters in the November 2000 election approved fluoridation 52 percent to 48 percent. The Davis County chapter of Citizens for Safe Drinking Water, an anti-fluoridation group, then started a petition drive for a revote.
In July 2002, Rawlings verified the signatures on the petition and delivered it to the Davis County Commission. The county commissioners took no action on the initiative, which allowed the measure that would stop fluoridation to go on the ballot.
UBDH sued, claiming the measure was actually a referendum that had been filed past the deadline to bring such actions. Dawson found in the group’s favor in September 2002 and granted an injunction stopping the revote. He later declined a UBDH request for attorneys’ fees, leading to the Supreme Court appeal.
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