UFBDH v. Davis County Clerk

2007 UT 97
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Utahns For Better Dental Health- 	No. 20060321
Davis, Inc., a Utah nonprofit
corporation,
Plaintiff and Appellant,
v.
Davis County Clerk 	F I l E D
Steven S. Rawlings,
Defendant and Appellee. 	December 21, 2007
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Second District, Bountiful Dep’t
The Honorable Glen R. Dawson
No. 020801343
Attorneys: 	David R. Irvine, Janet I. Jenson, Salt Lake City,
for plaintiff
Melvin C. Wilson, Farmington, J. Kevin Murphy,
Salt Lake City, for defendant
---
DURHAM, Chief Justice:
¶1 	Utahns For Better Dental Health-Davis, Inc. (UFBDH)
appeals from the district court’s denial of an attorney fee
award. 	We reverse the district court and award UFBDH attorney
fees in this matter under the private attorney general doctrine.
BACKGROUND
¶2 	During the November 2000 general election, Davis County
citizens voted on an opinion question that asked, “Should
fluoride be added to the public water supplies within Davis
County?” 	With fifty-two percent of voters favoring the addition
of fluoride to water supplies and forty-eight percent opposing
fluoridation, the addition of fluoride was approved. 	A group of
Davis County citizens opposed to fluoridation subsequently sought
to have a revote on the issue, circulating a petition among
voters so that the identical opinion question from the 2000

1 Utah Code section 20A-7-501(3)(d) (2003) provides, “If a
county legislative body rejects a proposed county ordinance or
amendment, or takes no action on it, the county clerk shall
submit it to the voters of the county at the next regular general
election.”
2 The trial court quoted Gallivan v. Walker, 2002 UT 89,
¶ 27, 54 P.3d 1069.
No. 20060321 	2
general election would be on the ballot during the 2002 general
election. 	Treating it as an initiative petition, the Davis
County Clerk submitted the petition to the Davis County
Commission, which took no action on it. 	Pursuant to Utah Code
section 20A-7-501(3)(d), 1 the County Clerk stated that he would
place the opinion question on the ballot during the 2002 general
election.
¶3 	UFBDH, a nonprofit corporation organized to advocate
for the public health benefits of fluoridation, questioned the
constitutionality of placing the revote question on the 2002
ballot. 	It sought a declaratory judgment and injunctive relief
against the Davis County Clerk and the Davis County Commission.
The Commission was dismissed from the suit, but the district
court found in favor of UFBDH and against the County Clerk.
Recognizing the “‘sacrosanct and fundamental right’” 2 to
legislate directly through the initiative and referenda
processes, the court held that the County Clerk’s decision to
place the petition “on the ballot violate[d] Utah constitutional
and statutory law governing initiatives and referenda.” 	If
classified as a referendum, the petition was untimely, and if
viewed as an initiative, the petition was “an inappropriate
mechanism to change the law of fluoridation within Davis County.”
The court stated that allowing the petition to be placed on the
ballot would be a “misuse [of] the people’s direct legislative
power” granted in article VI, section 1 of the Utah Constitution
and would “thwart the will of a majority of Davis County voters.”
The court noted that “the public . . . ha[s] a real and
substantial interest in ensuring that the laws of initiative and
referenda are scrupulously followed and the election process
adheres to the rule of law.”
¶4 	UFBDH motioned for an award of attorney fees pursuant
to the private attorney general doctrine, which the district
court denied. 	UFBDH appealed, and the court of appeals concluded
that the district court had “failed to enter adequate subsidiary
findings to justify its ultimate conclusion,” eliminating the
court of appeals ability to meaningfully review the case. 	Utahns
For Better Dental Health-Davis, Inc. v. Davis County Comm’n, 2005

3 We determined to transfer the first appeal to the court of
appeals, but to retain this second appeal.
3 	No. 20060321
UT App 347, ¶ 12, 121 P.3d 39. 	The court of appeals remanded for
the entry of adequate findings and conclusions and a decision in
accordance with those findings and conclusions. 	Id. ¶ 13. 	The
district court did so, again denying an award of attorney fees.
In explaining the denial, the district court relied on the lack
of a substantial monetary benefit created by UFBDH’s actions, a
lack of a windfall to the Davis County Clerk, and the ability of
UFBDH to pay its own attorney fees. 	It stated that the “mere
interpretation of a contested petition” was not a strong or
societally important public policy issue and that no “actual or
concrete benefits” were created by this case. 	UFBDH appealed
from that order. 	We have jurisdiction pursuant to Utah Code
section 78-2-2(3)(j) (2002). 3
ANALYSIS
¶5 	“In general, Utah follows the traditional American rule
that attorney fees cannot be recovered by a prevailing party
unless a statute or contract authorizes such an award.” 	Hughes
v. Cafferty, 2004 UT 22, ¶ 21, 89 P.3d 148. 	“However, in the
absence of a statutory or contractual authorization, a court has
inherent equitable power to award reasonable attorney fees when
it deems it appropriate in the interests of justice and equity.”
Stewart v. Utah Pub. Serv. Comm’n, 885 P.2d 759, 782 (Utah 1994).
This court has recognized the private attorney general doctrine
as one method for granting equitable awards of attorney fees. 	In
Stewart, this court explicitly relied on the private attorney
general doctrine to require an award of attorney fees when the
“‘vindication of a strong or societally important public policy’
takes place and the necessary costs in doing so ‘transcend the
individual plaintiff’s pecuniary interest to an extent requiring
subsidization.’” 	Id. at 783 (quoting Serrano v. Priest, 569 P.2d
1303, 1314 (Cal. 1977)). 	We also commented on the “exceptional
nature” of the Stewart case, and stated that “any future award of
attorney fees under [the private attorney general doctrine would]
take an equally extraordinary case.” 	Id. at 783 n.19.
I. 	DE NOVO REVIEW IS THE APPROPRIATE STANDARD OF REVIEW FOR
ATTORNEY FEE AWARDS UNDER THE PRIVATE ATTORNEY GENERAL DOCTRINE
¶6 	This case presents only the second opportunity we have
had since Stewart to review a trial court’s denial of attorney
fees pursuant to the private attorney general doctrine. 	Our
first opportunity was in Shipman v. Evans, 2004 UT 44, 100 P.3d
1151, where we, without analysis as to the unique nature of the

4 An examination of a majority of the cases reviewing fees
under the doctrine demonstrates that de novo review is in fact
what appellate courts actually apply, even when they articulate
deferential standards in this fairly unusual class of cases. 	See
Maria P. v. Riles, 743 P.2d 932, 936-38 (Cal. 1987) (engaging in
an examination of the record to conclude that “[t]his is
precisely the type of public interest lawsuit that the private
attorney general doctrine . . . was intended to foster”);
Westside Cmty. For Indep. Living, Inc. v. Obledo, 657 P.2d 365,
368-69 (Cal. 1983) (engaging in full record review to overturn
trial court’s decision to award fees); Baggett v. Gates, 649 P.2d
874, 881-83 (Cal. 1982) (overturning trial court’s denial of
attorney fees under the private attorney general doctrine after a
review of the record); State v. Hagerman Water Right Owners, Inc.
(In re SRBA Case No. 39576), 947 P.2d 391, 394-95, 396-99 (Idaho
1997) (purporting to review for abuse of discretion, but
appearing to treat each prong of the private attorney general
test as a legal question in overturning an award of fees);
Taggart v. Highway Bd., 771 P.2d 37, 39 (Idaho 1988) (engaging in
review of the record to overturn trial court’s denial of attorney
fees). 	In fact, the Oregon Supreme Court explicitly recognized
that, although a trial court’s decision to award attorney fees is
discretionary, when a prevailing party seeks to vindicate “the
rights of others as much as his own . . . [the supreme court,] as
a matter within its own discretion, may award or decline to award
such fees.” 	Umrein v. Heimbigner, 632 P.2d 1367, 1371-72 (Or.
1981) (exercising supreme court’s own discretion in awarding
attorney fees to plaintiffs suing to enforce “their
constitutionally guaranteed power to initiate local
legislation”). 	Even in this court’s own cases, where we purport
to review awards of attorney fees based on abuse of discretion,
we often engage in a review of the record. 	See Hughes, 2004 UT
22, ¶¶ 28, 30 (announcing the abuse of discretion standard of
(continued...)
No. 20060321 	4
private attorney general doctrine, simply imported the abuse of
discretion standard from Hughes. 	In Hughes, we considered
equitable awards of attorney fees after Stewart. 	We were not,
however, considering the private attorney general doctrine, but
rather equitable awards of attorney fees in the context of a
beneficiary suing a trustee and vindicating the rights of all
other harmed beneficiaries. 	Hughes, 2004 UT 22, ¶ 22. 	In
Shipman, we failed to acknowledge the unique policy implications
associated with the private attorney general doctrine. 	Today we
recognize that the highly deferential standard of review utilized
for other equitable awards of attorney fees is unsuitable for
private attorney general doctrine cases and conclude instead that
de novo review should be applied. 4

4 (...continued)
review for equitable awards of attorney fees yet conducting a
review of the record to determine if such fees were appropriately
awarded).
5 The trial court must resolve factual questions about the
underlying merits of a dispute and the relief that should or
should not be afforded. 	It must determine whether the legal
standards for an award of fees have been met, whether those
standards derive from contract, statute, or common law-doctrine,
as in the case of private attorney general awards. 	Finally, it
must make factual determinations about the nature, amount, and
value of legal services provided, and ultimately reach some
“equitable” conclusion about what, if any, attorney fees are due.
5 	No. 20060321
¶7 	In Hughes, 2004 UT 22, ¶ 24 n.2, our determination to
apply the abuse of discretion standard of review to equitable
awards of attorney fees was based largely upon our discussion in
State v. Pena, 869 P.2d 932, 936 (Utah 1994), of the
opportunities for trial courts to “assess the credibility of
witnesses and to derive a sense of the proceedings as a whole,
something an appellate court cannot hope to garner from a cold
record.” 	Trial court determinations of attorney fee cases are
generally multilayered, 5 and much of the trial court’s work
relies on its traditional capacity to evaluate witnesses’
credibility, the weight of factual evidence, and the satisfaction
by parties of their burdens of proof. 	Considerations like these,
however, are not primarily implicated in cases involving the
private attorney general doctrine. 	Part of the trial court’s
function in attorney fee deliberations depends on an
understanding and proper interpretation of the applicable legal
standard. 	Cf. City of Sacramento v. Drew, 255 Cal. Rptr. 704,
710 (Ct. App. 1989) (considering whether the grounds given by the
trial court in denying an attorney fee award were consistent with
the legal principles, substantive law, and the policy and purpose
behind the private attorney general doctrine). 	Appellate courts
do not, for example, generally defer to a trial court’s
determination as to whether a party has prevailed within the
meaning of a contract or a statute, or as to whether a particular
dispute qualifies for coverage under an attorney fee provision.
See, e.g., Still Standing Stable, LLC v. Allen, 2005 UT 46, ¶ 8,
122 P.3d 556 (“Whether the trial court properly interpreted the
legal prerequisites for awarding attorney fees under [the
statute] is a question of law that we review for correctness.”
(internal quotation marks omitted)). 	The determination as to
whether the Stewart extraordinary case standard has been met

6 This is particularly true in the historical context where
this court has had virtually no opportunity since Stewart to
flesh out the content and contours of the private attorney
general doctrine.
No. 20060321 	6
similarly requires legal analysis. 6 	To leave to trial courts the
determination of the existence of an extraordinary case under
Stewart on an individual case-by-case basis without meaningful
review by this court, which articulated the underlying doctrine
permitting fees, would lead to inconsistency and even potential
arbitrariness in its use and availability.
¶8 	In private attorney general cases, the threshold issue
is a rather transcendent, large picture question of public
policy, namely, whether an important right affecting the public
interest has been vindicated. 	A de novo standard of review of
the grant or denial of fees in private attorney general cases is
necessary to promote uniformity and predictability in these rare
cases, to maintain judicial consistency and integrity in the use
of the doctrine, and to encourage the private enforcement of
important rights affecting the public interest. 	Because the
threshold issue is one of public policy, appellate judges, who
have the benefit of deliberating as a panel and reviewing the
well-considered arguments of the parties on appeal, have an
advantaged position to review such considerations.
II. 	AN AWARD OF ATTORNEY FEES TO UFBDH IS
APPROPRIATE IN THIS CASE
¶9 	This case presents an example of the potential
inconsistency and arbitrariness of fee awards under the private
attorney general doctrine and presents an opportunity for us to
clarify the Stewart standard. 	Based on the district court’s
findings of fact and unchallenged conclusions of law regarding
the merits of this case, we conclude that the Stewart standard
has been met. 	We are persuaded that the district court erred in
concluding that this case involved the “mere interpretation of
a[n initiative] petition” and not the “vindication of a strong or
societally important public policy” concerning the misuse of the
constitutionally-based initiative power and the integrity of a
public election. 	In its decision on the merits, the district
court itself recognized that this case implicated the sacrosanct
and fundamental right of the people to directly legislate through
the constitutional processes of initiative and referenda. 	It
acknowledged the public’s “real and substantial interest in
ensuring that the laws of initiative and referenda are
scrupulously followed and the election process adheres to the
rule of law.” The district court’s decision on the matter of

7 	No. 20060321
attorney fees was thus at odds with its original decision in the
case. 	We also conclude that the district court erred in
incorporating into the private attorney general doctrine a
requirement that a plaintiff somehow show an inability to pay its
own attorney fees in order to be eligible for reimbursement under
the doctrine, or that a plaintiff show that its burden “was out
of proportion to [its] individual stake in the matter.” 	Finally,
the district court candidly acknowledged that it was on its own
in interpreting the private attorney general doctrine under
Stewart:
[This case] is not, in this [c]ourt’s view,
the extraordinary type of case envisioned by
Stewart. 	First of all, there were no
monetary benefits created by plaintiff’s
actions as in Stewart nor was there a
windfall to [d]efendant. 	While these factors
alone may not be controlling, this Court
perceives that the significant monetary
benefits related to future rates bestowed by
the plaintiff’s actions in Stewart were an
important reason for the [Supreme] Court’s
decision regarding attorney fees under the
“private attorney general” doctrine. 	Again,
there are no such benefits in this case.
This [c]ourt cannot even find actual or
concrete benefits created in this case.
¶10 	We hold that the district court’s perception that
monetary benefits due to a plaintiff’s action are required by the
private attorney general doctrine is erroneous and not part of
the legal standard first articulated in Stewart. 	We also hold
that the blocking from the ballot of an unconstitutional
initiative petition is an actual and concrete benefit to a large
number of citizens and voters, especially in light of the
potential costs associated with campaigns to secure or avoid the
initiative’s passage. 	We have previously stated, “Because the
people’s right to directly legislate through initiative and
referenda is sacrosanct and a fundamental right, Utah courts must
defend it against encroachment and maintain it inviolate.”
Gallivan v. Walker, 2002 UT 89, ¶ 27, 54 P.3d 1069. 	Regarding
the vindication of this strong and societally important public
policy issue, the Oregon Supreme Court recognized that defending
the “integrity of the . . . initiative process[]” benefits all
citizens of the State and “is the type of public benefit that
. . . makes an award of attorney fees appropriate.” 	Armatta v.
Kitzhaber, 959 P.2d 49, 71 (Or. 1998); see also Umrein v.
Heimbigner, 632 P.2d 1367, 1371-73 (Or. 1981) (awarding attorney

No. 20060321 	8
fees under Oregon’s version of the private attorney general
doctrine because parties exercising the constitutional right to
place initiative petitions on the ballot were “protecting the
rights of others as much as [their] own” (internal quotation
marks omitted)). 	Vindication of the constitutional rights
implicated in this case falls well within the notion of an
extraordinary and exceptional case referenced in Stewart.
CONCLUSION
¶11 	We reverse the judgment of the district court and
remand to the district court for a determination as to the proper
amount of attorney fees to be awarded. 	The amount should include
attorney fees for the entirety of these proceedings, including
both appeals.
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¶12 	Justice Durrant and Justice Parrish concur in Chief
Justice Durham’s opinion.
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NEHRING, Justice, concurring:
¶13 	I join in the opinion of the Chief Justice. 	I write
separately to supplement her justification for conducting a
nondeferential review of rulings that apply the private attorney
general doctrine with the observation that our employment
termination jurisprudence provides ample precedent for de novo
review of questions that require us to measure the importance of
a particular public policy.
¶14 	In Berube v. Fashion Centre, Ltd., 771 P.2d 1033 (Utah
1989), we ratified three exceptions to the employment-at-will
doctrine. 	One of these exceptions may be invoked when an
employee is discharged in a manner that transgresses a
“substantial and important” public policy. 	Id. at 1043. 	There
is little difference between evaluating whether a public policy
is substantial and important in the context of employment
termination and assessing whether an important right affecting
the public interest has been vindicated in a private attorney
general case. 	Both considerations call on us to rank matters of
public policy among their peers.
¶15 	Without ever expressly stating our intention to do so,
we have unfailingly reviewed public policy challenges in wrongful
discharge cases nondeferentially. 	See, e.g., Touchard v. La-Z-

9 	No. 20060321
Boy, Inc., 2006 UT 71, ¶¶ 11-16, 148 P.3d 945; Hansen v. Am.
Online, Inc., 2004 UT 62, ¶¶ 9-24, 96 P.3d 950; Gottling v. P.R.
Inc., 2002 UT 95, ¶¶ 5, 21, 61 P.3d 989; Rackley v. Fairview Care
Ctrs., Inc., 2001 UT 32, ¶¶ 10-19, 23 P.3d 1022; Retherford v.
AT&T Commc’ns of the Mountain States, Inc., 844 P.2d 949, 958-61
(Utah 1992). 	Our court of appeals has gone beyond a de facto
recognition of this standard and has adopted it outright. 	See,
e.g., Rackley v. Fairview Care Ctrs., Inc., 970 P.2d 277, 281-82
(Utah Ct. App. 1998), aff’d 2001 UT 32, 23 P.3d 1022. 	I am
unable to discern any principled reason to defer to a trial
court’s assay of public policy interests in private attorney
general cases while declining to do so when reviewing wrongful
discharge cases. 	For this reason and for those set out in the
lead opinion, I would conduct a whole record review of the UFBDH
attorney fees claim and, having conducted that review, reverse.
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¶16 	Justice Durrant and Justice Parrish concur in Justice
Nehring’s concurring opinion.
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WILKINS, Associate Chief Justice, dissenting:
¶17 	The essence of the majority opinion in this matter is
that our common law rule awarding attorney fees to litigants who
act in the public interest should be extended to those who
successfully challenge a ballot initiative’s inclusion on the
ballot. 	The fact that the litigant may do so for reasons other
than the public interest falls out of the equation, as does the
financial need of the litigant. 	My colleagues pronounce the role
of preventing the public from voting on a dubious measure
proposed by initiative or referendum to be of such “sacrosanct
and fundamental” importance that the court must act to encourage
litigation against, in this case, the Davis County Clerk, for
failing in his administrative duty.
¶18 	I, on the other hand, would not.
¶19 	I would certainly allow those who see unwarranted
inclusion of a matter on the ballot to challenge its inclusion,
and in instances of improper, unethical, or fraudulent behavior
by government officials, encourage the additional incentive of
requiring the government to defray the expenses of such an
effort. 	I would reserve that additional incentive for only those
few truly extraordinary occasions when a brave citizen takes on
government and succeeds against corrupt or wrongful acts, and

No. 20060321 	10
does so for altruistic reasons, at a personal financial
sacrifice. 	In all other cases, I would let the people vote on
the matter.
¶20 	My colleagues, in this case, elevate a corporate
challenge to the flawed initiative petition to a level mandating
the award of attorney fees, and do so in language one might
reasonably interpret to mean that any such challenge in the
future is also entitled to fees, so long as a referendum or
initiative effort is successfully removed from the ballot. 	Such
a position places both an unreasonable burden on state and local
governments, and substitutes our views of the importance of an
issue for the view of the voters on the merits of the issue. 	One
might reasonably expect all such future petitions to be
challenged in court, leaving the bill to be paid by the public
treasury.
¶21 	I disagree with my colleagues, and therefore dissent.
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