Utahns for Better Dental Health fought a long and successful battle against Davis County officials to get fluoridation into the water of Davis cities. Now the group wants Davis County to pay for their legal fees of more than $40,000.

The pro-fluoride group took their case to the Utah Court of Appeals on Tuesday, arguing that because they fought to uphold the will of the majority of Davis voters, who voted by a narrow margin in 2000 for water fluoridation, they qualify for a rare exception in the law to allow their fees to be paid by the government.

Because Davis County's attorney, clerk and commission chair were in support of seeking yet another voter initiative to overturn the 2000 decision, "the majority of Davis County voters were left on their own to vindicate their rights," said Utahns for Better Dental Health attorney David Irvine during oral arguments before the court.

Typically in legal cases, each party pays for their respective legal costs, unless a judge finds special circumstances to require a party to pay the other's fees. Irvine said under the "private attorney general doctrine" his group deserves to have the $45,034 in legal costs paid for by the county.

During the 2000 election, 52 percent of Davis voters approved the fluoridation of water. However, county officials balked at implementation, saying voters needed to vote again. Utahns for Better Dental Health successfully blocked an initiative attempt in 2001. In 2004, Davis voters narrowly defeated an initiative to overturn the 2000 initiative.

With Davis officials taking an anti-fluoride stance, there was no one to champion the pro-fluoride cause, Irvine said.

"The voters had their own taxes used against them to fund an attack by the minority against the will of the majority, leaving only a few private citizens who were willing to challenge the government's errors," Irvine wrote in his brief to the court.

A 2nd District judge ruled that the group was not entitled to their fees being paid, which the group now appeals.

David Thompson, attorney for Davis County, argued that Judge Glen Dawson was within his discretion to deny the request.

The decision hinges upon a 1994 case in which a group sued the Utah Public Service Commission over a move by Qwest to raise phone rates. Although the group lost, the Utah Supreme Court found that they had "vindicated" a public cause and awarded attorney's fees. However, the high court ruled that such awards could only take place in extraordinary circumstances.

Dawson ruled that while Utahns for Better Dental Health did vindicate a cause, their victory did not lead to a monetary gain for the public; therefore, they did not deserve such an award.

Some justices said they were troubled by the fact that Dawson had noted their public cause but had ruled against their request. Justice Judith Billings said she felt this may have a "chilling result" for groups who take up a public cause.

The court is expected to issue a ruling in the following weeks.

Thompson said the only way the appellate court can award attorney's fees is if they find that Dawson "abused his discretion."

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E-mail: gfattah@desnews.com