A new barrier for grass-roots lawsuits?

SB53 » People who sue the government may not be able to collect legal fees.
This is an archived article that was published on sltrib.com in 2009, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Newly passed legislation could make it harder to fight city hall -- and lawyers either love it or hate it, depending on which side they represent.

City, county and state attorneys shudder at the prospect of a judge awarding hefty legal fees to people who prevail when they sue government over an issue of broad public concern.

The so-called private attorney general (PAG) doctrine became part of Utah's case law in 1994, and courts have wielded its power only a few times since.

But SB53, backed by the Utah Association of Counties, would bar the awarding of legal fees under the PAG doctrine.

"Part of the job of a lawyer is to provide his client with the [financial] risk in a case" -- laid out by contract or by statute, said David Wilson, chief civil deputy attorney for Weber County. "But under the PAG doctrine, you never know until it's done."

Those kind of surprises can decimate a county or city budget, Wilson added. One such award, involving $240,000 in fees in Utahns for Better Dental Health v. Davis County, is still pending.

But attorneys who bring these types of cases -- often involving extended court battles -- say the people's voice and the public good would suffer if the governor signs SB53 into law.

"At some point, citizens will go head to head with their government, and their government will tell them to go suck rocks," attorney David Irvine recently told The Salt Lake Tribune editorial board. "And they'll have to figure out if it's worth it to take it to court."

Irvine represented Utahns for Better Dental Health. While SB53 only applies to cases filed after May 12, 2009, he and others have warned they will sue if the bill becomes law.

Joel Ban, a lawyer who successfully represented residents fighting a proposed resort in Beaver County, said he likely would not be able to collect legal fees under the PAG doctrine, but lamented the loss of that option.

"It's important that citizens be able to go after government entities," Ban said. "Otherwise it makes it hard to protect their rights unless they're independently wealthy."

But Kelly Wright, deputy district attorney for Salt Lake County, sides with Weber County's Wilson.

"SB53," Wright said, "doesn't impair any cause of action for any citizen."