SALT LAKE CITY -- It's now up to the Utah State Court of Appeals to decide if Davis County will have to pay attorney's fees in a recent fluoride case. On Tuesday, Dave Thomp-son, a private attorney representing Davis County and Janet Jenson, a Salt Lake attorney who has worked with Bountiful attorney David Irvine and Utahns for Better Dental Health, made their cases before the appeals court. At issue: will Davis County have to pay $145,000 in fees accrued by Irvine and Jenson for services related to water fluoridation. If the ruling favors the county, Irvine and Jenson will not get paid for their services.

While there is no deadline set for the judges to make their decision, Davis County Attorney Mel Wilson said he believes it should come within the next couple of months.

In 2002, Irvine and Utahns for Better Dental Health filed a lawsuit before the Novem-ber election against Davis County Clerk/Auditor Steve Rawlings, claiming fluoride opponents followed the wrong process in petitioning for the revote.

Second District Judge Glen C. Dawson ruled the petition was insufficient to force a revote.

Irvine said that part of his motion was that the county would pay their fees, based on a 1994 Utah Supreme Court decision in which private attorneys challenged a rate increase for U.S. West, approved by the state's Public Service Commission.

In that case, the court declared the increase unconstitutional, and granted the attorney's fees, saying that if it hadn't been for the private attorneys, the utility's ratepayers would have had no one to stand up for them.

"We made the same claim," Irvine said. He said like that 1994 case, there was no one to stand up for the voters in Davis County who voted in favor of fluoridating water in Davis County. "We prevailed in court and got the issue taken off the ballot," Irvine said. "There was no one left to stand up for the voters except Utahns for Better Dental Health. It's the same extraordinary case," he said.

But in 2003, Dawson ruled against giving Irvine his attorney's fees, then amounting to about $45,000, saying the case was unique, but not extraordinary. Since that ruling, Irvine and Jenson have accrued an additional $100,000 in fees.

Irvine said that in 2003 Dawson ruled that the case was not extraordinary because it created no monetary benefit to the public from not having the revote and because it was not demonstrated that the county acted in bad faith in petitioning for the revote in 2002.

Irvine said he doesn't have a feel for when the ruling may come down from the appellate court, or how they may rule. But Wilson said he's confident the judges will sustain Daw-son's ruling.

Whichever side wins in the ruling, it still could be taken to the Utah Supreme Court.



mwilliams@davisclipper.com