*1 equal protection grounds. attack on Id. from impression with the are also not left

prosecutors pre- are abandoned to their own choosing charge

dilections when a defen- both, one, para- dant or misdemeanor with felony phernalia possession possession. prosecutor Prosecutors are not. A is fore- closed, example, prosecuting for possession drug paraphernalia a defendant possesses a controlled substance free of

paraphernalia regardless prosecutor’s mercy compassion,

sense of deserved or otherwise, for the defendant.

CONCLUSION ¶23 considering clarifying After proper scope of the Shondel conclude the court of erred in applying the doctrine Mr. Williams’ case. Legisla- As evidenced the intention of the ture, felony possession Utah’s statute and possession misdemeanor of paraphernalia sufficiently overlap statute do not trigger protections afforded the Shondel doc- obviously trine. The statutes were intended fully separately to be enforceable. Re- versed and remanded. DURHAM, 24 Chief Justice Associate WILKINS,

Chief Justice Justice DURRANT, and Justice PARRISH concur opinion. Justice NEHRING’s

2007 UT 97 UTAHNS FOR BETTER DENTAL

HEALTH-DAVIS, INC., nonprof- a Utah corporation, Appellant, Plaintiff CLERK,

DAVIS COUNTY Steven Rawlings, S. Defendant

Appellee. No. 20060321. Supreme Court of Utah.

Dec. 2007. Rehearing Denied Jan. *2 reverse the district court and award attorney fees in this matter under

UFBDH private attorney general doctrine. the

BACKGROUND

¶ During general the November 2000 election, County Davis citizens voted on an asked, opinion question that fluoride “Should 'public supplies water within be added to the County?” fifty-two percent of Davis With favoring voters the addition of fluoride to forty-eight percent oppos- supplies water fluoridation, the addition fluoride was County A approved. group of Davis citizens subsequently sought opposed to fluoridation issue, circulating a on a to have revote petition among the identical voters so opinion question general from the 2000 elec- during tion would be on the ballot the 2002 Treating election. it as an initiative County petition, the Davis Clerk submitted Commission, County petition to the Davis which took no action on it. Pursuant to Utah 20A-7-501(3)(d),1 County Code section opinion place stated that he would Clerk question during gener- on ballot the 2002 al election.

¶ UFBDH, nonprofit corporation orga- a public health bene- nized to advocate for the fluoridation, questioned the constitu- fits of tionality placing question revote on the declaratory judg- sought 2002 ballot. injunctive against the Davis ment and relief County County Clerk and the Davis Commis- was dismissed from sion. The Commission suit, in favor but the district court found against County Clerk. UFBDH “ and fundamen- Recognizing the ‘sacrosanct Irvine, Jenson, Lake David R. Janet I. Salt ”2 directly through the right’ legislate tal City, plaintiff. processes, the court initiative and referenda Wilson, Farmington, J. Kevin Melvin C. decision to held that the Clerk’s Murphy, City, Lake for defendant. Salt petition violate[d] “on the ballot statutory governing law constitutional and DURHAM, Chief Justice: If and referenda.” classified initiatives referendum, untimely, and if petition was Health- 1 Utahns For Better Dental initiative, (UFBDH) “an Davis, petition was appeals from the dis- as an viewed change the law inappropriate mechanism to fee award. trict court’s denial of Walker, 20A-7-501(3)(d) (2003) quoted pro- Gallivan v. 2. The trial court 1. Utah. Code section vides, legislative body rejects pro- county "If a amendment, posed county ordinance or or takes it, county it to on clerk shall submit no action regular gener- county voters of the at the next al election." authorization, County.” statutory The of a or contractual within Davis of fluoridation equitable power allowing to be court has inherent to award court stated that a “misuse reasonable fees when it deems placed [of] the ballot would be justice power” granted appropriate in the interests of legislative people’s direct *3 VI, equity.” v. Pub. 1 of the Utah Constitu- Stewart Serv. in article section 1994). Comm’n, 759, majority the will of a 885 782 and would “thwart tion recognized private This court County voters.” The court noted attor of Davis ney general doctrine as one method for public ... a real and substan- ha[s] that “the granting equitable attorney ensuring that the laws of awards of fees. tial interest Stewart, scrupulously explicitly In this court relied on the and referenda are fol- initiative private attorney general process require adheres to the doctrine to lowed and the election “ attorney an award of fees when the ‘vindi rule of law.” strong soeietally important cation of a ¶ 4 motioned for an award of UFBDH public policy’ necessary takes and the attorney pursuant private to the attor fees doing costs ‘transcend the individual doctrine, ney general which the district court plaintiffs pecuniary interest an to extent re appealed, denied. and the court of UFBDH ” quiring (quoting subsidization.’ Id. at 783 appeals concluded that the district court had Priest, 25, 141 Cal.Rptr. Serrano v. 20 Cal.3d subsidiary findings adequate “failed to enter (1977)). 1303, alsoWe conclusion,” justify eliminating to its ultimate “exceptional commented on the nature” of appeals ability meaningfully the court to case, “any the Stewart and stated that future review the case. Utahns For Better Dental attorney private [the award of fees under Health-Davis, County v. Davis attorney general doctrine an would] take ¶ Comm’n, 347, 12, 121 App 2005 UT P.3d 39. extraordinary equally case.” Id. at 783 n. 19. entry for the The court of remanded adequate findings and conclusions and a DE I. NOVO REVIEW IS THE APPRO- findings decision in accordance with those PRIATE STANDARD OF REVIEW ¶ The district court conclusions. Id. 13. FOR ATTORNEY FEE AWARDS UN- so, denying attorney again did an award of DER THE PRIVATE ATTORNEY denial, explaining In fees. district GENERAL DOCTRINE lack of a substantial mon relied actions, by etary benefit created UFBDH’s ¶ presents only 6 This case the second Clerk, lack of a windfall to the Davis opportunity we have had since Stewart to ability pay its own UFBDH attorney a trial review court’s denial of fees attorney that the in fees. stated “mere pursuant private attorney doc petition” terpretation of a contested was not opportunity Shipman trine. Our first was in soeietally strong important public policy Evans, v. 2004 UT where “actual issue and that no or concrete bene we, analysis unique without as to the nature fits” were created this case. UFBDH doctrine, private attorney general sim appealed jurisdic from that order. We have ply imported the abuse of discretion standard pursuant tion to Utah Code section 78-2- Hughes. Hughes, In we considered (2002).3 2(3)(j) equitable attorney awards of fees after Stew not, however, considering art. wereWe ANALYSIS but rather general, equitable attorney 5 “In Utah follows the awards of fees the con beneficiary suing traditional American rule that text of a a trustee and prevailing party vindicating rights cannot be recovered of all other harmed ¶22, 22, Hughes, unless a statute or contract authorizes such beneficiaries. Hughes Cafferty, Shipman, award.” 2004 UT P.3d 148. In we failed to acknowl ¶ 21, “However, edge unique policy implications 89 P.3d 148. in the absence assoeiat- appeal appeal. 3. We determined to transfer the first appeals, the court of but to retain this second function al doctrine. Part of the trial court’s attorney general doctrine.

ed with the highly depends deferen- fee deliberations on an Today recognize that the equi- understanding proper interpretation utilized for other of review tial standard unsuitable City fees is applicable legal table awards standard. Cf. Drew, doctrine cases Cal.App.3d Sacramento review instead that de novo and conclude (considering Cal.Rptr. applied.4 should be grounds given by the trial court whether the denying fee award were con 22, 24 n. Hughes, legal principles, with the substantive sistent apply our determination law, policy purpose behind the of review to of discretion standard abuse *4 doctrine). private attorney general Appel attorney fees was based equitable awards of not, example, generally courts do late Pena, in upon State v. largely our discussion a trial court’s determination as to defer to 932, 1994), oppor- P.2d 936 of the 869 party prevailed a within the whether to “assess the credi- tunities for trial courts statute, meaning of a contract or a or as to a sense of bility witnesses and to derive of dispute particular qualifies a for cov whole, whether something proceedings See, attorney provision. erage under an fee hope garner from a appellate court cannot Stable, Allen, Standing v. 2005 e.g., LLC Still Trial court determinations of cold record.” (“Whether 46, 8, 122 556 the trial generally multilay- attorney fee cases are properly interpreted legal prereq ered,5 much of the trial court’s work and attorney awarding fees under capacity [the to evaluate uisites for relies on its traditional a of law that we review credibility, weight question statute] of factual is witnesses’ (internal evidence, quotation marks by parties of for correctness.” and the satisfaction omitted)). as to whether like The determination proof. burdens of Considerations their these, however, extraordinary case standard has primarily implicated the Stewart are not analysis.6 similarly requires legal involving private attorney gener- been met in cases discretion, may award or majority matter within its own examination of a of the cases re 4.An Heimbig viewing the doctrine demonstrates such fees.” Umrein v. fees under decline to award ner, 871, 1367, appellate in Or.App. that de novo review is fact what 1371-72 53 632 P.2d they actually apply, (1981) even when articulate (exercising supreme courts court’s own discre fairly unusual class deferential standards attorney plaintiffs suing awarding tion in fees to Riles, 1281, Cal.3d of cases. See Maria P. v. 43 constitutionally guaranteed to enforce "their 872, 932, (1987) Cal.Rptr. 743 P.2d 936-38 power legislation”). local Even in this to initiate (engaging an examination of the record to cases, purport where we to review court’s own precisely type pub "[t]his conclude that is attorney discre fees based on abuse of awards private attorney gen that the lic interest lawsuit tion, engage in a review of the record. often foster”); intended to West eral doctrine ... was 22, ¶¶ Hughes, 89 P.3d 148 See Obledo, Living, Cmty. Indep. v. side For Inc. (announcing the abuse of discretion standard 365, 873, Cal.Rptr. Cal.3d 657 P.2d equitable attorney yet awards of fees review for (1983) (engaging in full record review to 368-69 conducting if a review of the record to determine fees); to award overturn trial court’s decision awarded). appropriately fees were Gates, Cal.Rptr. Baggett 32 Cal.3d (1982) (overturning 881-83 questions 5. The trial court must resolve factual attorney fees under the trial court’s denial of private attorney dispute underlying a merits of about general after a review doctrine Hagerman not be afforded. relief that should or should record); Right Water of the State v. legal standards for must determine whether 39576), Owners, (In re SRBA Case No. met, whether those an award of fees have been 394-95, (1997) Idaho contract, statute, com- or standards derive discretion, (purporting to review for abuse of but law-doctrine, private the case of attor- as in mon prong private appearing to treat each Finally, factu- ney general awards. it must make legal question attorney general in over test as nature, amount, and about the al determinations fees); Taggart Highway turning an award of ultimately provided, legal value of services Bd., 115 Idaho what, if "equitable” conclusion about reach some (engaging of the record to overturn in review attorney any, are due. fees fact, fees). attorney In trial court’s denial explicitly recognized Oregon Supreme Court particularly historical con- true in the that, 6. This is although decision to award a trial court’s oppor- virtually has had no text where this court prevailing discretionary, when a fees tunity out the content since Stewart to flesh rights party "the of others as seeks to vindicate court,] attorney general private supreme contours of [the ... as much as his own ensuring trial courts the determination of and substantial interest in To leave to extraordinary of an case under scrupu- the existence laws of initiative and referenda are case-by-case lously Stewart on individual basis process followed and the election ad- court, meaningful review without heres to the rule of law.” The district court’s underlying which articulated the doctrine decision on the matter of fees was fees, inconsistency permitting would lead to original thus at odds with its decision potential and even arbitrariness in its use ease. We also conclude that the district availability. in incorporating private court erred into the attorney general requirement doctrine a cases, plaintiff inability pay somehow show an transcendent, threshold issue is a rather its own eligible order to be policy, large picture question name- for reimbursement under the ly, important right affecting whether an plaintiff that a show that its burden “was out been vindicated. A public interest has de proportion individual [its] stake grant of review of the novo standard Finally, candidly matter.” the district court of fees in denial acknowledged that was on its own in inter- necessary promote uniformity cases is preting doctrine cases, predictability these rare to maintain *5 under Stewart: consistency judicial integrity and in the use not, view, [This case] [e]ourt’s the encourage of the and to the extraordinary type of case envisioned important rights affecting enforcement the all, Stewart. First of there were no mone- public interest. Because the threshold issue tary by plaintiffs benefits created actions public policy, appellate judges, is one of inas Stewart nor was there a windfall to deliberating panel have the benefit of [defendant. While these factors alone reviewing arguments the well-considered may controlling, per- not be this Court parties appeal, an advantaged of the have significant that monetary ceives the bene- position to review considerations. fits related to future rates bestowed plaintiffs actions in Stewart were an im- II. AN AWARD OF ATTORNEY FEES portant [Supreme] reason for the Court’s IS APPROPRIATE IN TO UFBDH regarding attorney decision fees under the THIS CASE “private general” presents example 9 This case an of the Again, there are no such benefits in this potential inconsistency and arbitrariness of case. This cannot [e]ourt even find actual private attorney gener- fee under the awards or concrete benefits created in this case. presents opportunity al doctrine and an clarify us to the Stewart standard. Based on 10 We hold that the district findings the district court’s of fact perception monetary and un- court’s benefits due challenged regarding conclusions of law plaintiffs required by to a action are ease, merits of private attorney this we conclude that general doctrine is errone Stewart part standard has been met. We are ous and legal not of the standard first persuaded that district erred in articulated in Stewart. We also hold that the concluding blocking that this case involved the “mere from the ballot of an unconstitution interpretation petition” al a[n initiative] initiative is an actual and concrete strong societally not the of a large “vindication benefit to a number of citizens and important public voters, policy” concerning especially light the mis- in potential constitutionally-based use of the campaigns initiative costs associated with to secure or power integrity public of a election. avoid passage. pre the initiative’s We have merits, stated, In its decision on the viously district people’s right “Because the recognized implicat- directly court itself that this case legislate through initiative and refer- ed right the sacrosanct and fundamental right, enda is sacrosanct and a fundamental directly people legislate through against Utah courts must defend it encroach processes constitutional of initiative and re- ment and maintain it inviolate.” Gallivan Walker, 89, ¶ 27, It acknowledged public’s ferenda. “real 2002 UT 54 P.3d 1069. evaluating strong and little difference between whether vindication of this Regarding the issue, public policy important is substantial and important public policy societally employment the context of termination and that de Supreme recognized Oregon Court assessing important right affect- whether ... initiative fending “integrity of the public interest has been vindicated benefits all citizens of the State process! ]” con- ease. Both ... type public “is the benefit siderations call on us to rank matters of appropri makes an award of policy among peers. their Kitzhaber, 250, 959 ate.” Armatta v. 327 Or. (1998); v. Heim

P.2d see also Umrein expressly stating 15 Without ever our 1371- bigner, Or.App. 632 P.2d so, unfailingly intention do we have re (awarding fees under Ore public policy challenges wrongful viewed gon’s version of the See, discharge nondeferentially. e.g., cases exercising con parties doctrine because Inc., Lar-Z-Boy, Touchard 2006 UT petitions right initiative stitutional ¶¶ 11-16, 945; Hansen v. Am. On rights of “protecting on the were ballot ¶¶ line, Inc., 9-24, 950; 2004 UT 96 P.3d (internal quo much as own” [their] ¶¶ others as Inc., Gottling v. P.R. omitted)). marks Vindication of the tation 989; Ctrs., Rackley v. Fairview Care rights implicated constitutional this ease ¶¶ Inc., 1022; 10-19, falls well within the notion of extraordi v. AT & T Commc’ns Retherford nary exceptional case referenced Inc., States, Mountain Stewart. (Utah 1992). gone court of Our

beyond recognition facto stan de See, adopted outright. e.g., dard and has CONCLUSION Ctrs., Inc., Rackley v. Fairview Care *6 ¶ judgment of the dis- reverse the Ct.App.1998), aff'd trict court and remand to the district P.3d 1022. I am unable to proper for a determination as to the amount any principled discern reason to defer to a amount of fees to be awarded. The assay public policy trial of interests in court’s entirety should include fees for the private attorney general cases while declin including appeals. proceedings, of these both reviewing wrongful dis do when charge cases. For this reason and for those ¶ 12 and Justice Justice DURRANT opinion, set out in the lead I would conduct concur in Chief Justice PARRISH whole record review of the UFBDH opinion. DURHAM’S and, review, having claim conducted that NEHRING, Justice, concurring: reverse. ¶ join opinion 13 I in the of the Chief ¶ 16 and Justice Justice DURRANT supplement separately I write Justice. concur in Justice NEHRING’s PARRISH justification conducting for a nondeferen- her concurring opinion. rulings apply that tial review of Justice, WILKINS, doctrine with the observa- Associate Chief juris- employment tion that our termination dissenting: provides ample precedent for de

prudence ¶ majority opinion in 17 The essence of the require questions that us to novo review that our common law rule this matter is importance particular public measure the litigants act in awarding fees to who policy. public interest should be extended ¶ Centre, Ltd., ini- successfully challenge a ballot 771 those who Berube v. Fashion (Utah 1989), The fact that ratified three ex- tiative’s inclusion on the ballot. P.2d 1033 may other than litigant do so for reasons ceptions employment-at-will to the equation, exceptions may public invoked interest falls out of these be One litigant. My financial need of the employee discharged in a manner as does the when preventing impor- colleagues pronounce the role transgresses a “substantial and public voting on a dubious measure policy. at 1043. There is tant” Id. or referendum to be of proposed by initiative 2007 UT 99 impor- and fundamental” such “sacrosanct MOSS, Bradley Celeste an heir of A. encourage must act to tance that the court Rone, Appellant, Plaintiff and case, litigation against, the Davis Clerk, failing in his administra- duty. tive PETE SUAZO UTAH ATHLETIC COM- hand, I, would not. 18 on the other MISSION, Department of Com- merce, al., Utah, et Defen- State certainly 19 I would allow those see Appellees. dants of a matter on the unwarranted inclusion inclusion, in in- challenge its ballot to No. 20060438. unethical, improper, or fraudulent stances of officials, by government encourage Supreme Court of behavior Utah. requiring gov- the additional incentive Dec. defray expenses ernment to of such effort. I would reserve that additional incen- only truly extraordinary

tive for few those gov- occasions when a brave citizen takes on against corrupt ernment and succeeds acts, wrongful and does so for altruistic rea- sons, personal at a financial In all sacrifice. cases, people

other I would let the vote on the matter. ease, My colleagues, elevate a

corporate challenge to the flawed initiative mandating to a level award attorney fees, language and do so in one might reasonably interpret any mean challenge in the future is also entitled to

fees, long as referendum or initiative successfully

effort is removed from the bal- position places lot. Such both an unreason- governments, able burden state and local importance and substitutes our views of the of an issue for the view of the voters on the might reasonably merits of the issue. One expect petitions all such future to be chal- court, lenged leaving paid the bill to be public treasury. ¶21 disagree my I colleagues, with therefore dissent.