Utahns for Better Dental Health-Davis, Inc. v. Davis County Clerk , 593 Utah Adv. Rep. 36 ( 2007 )

NEHRING,

Justice, concurring:

¶ 13 I join in the opinion of the Chief Justice. I write separately to supplement her justification for conducting a nondeferen-tial 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 ease. 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. Lar-Z-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.

¶ 16 Justice DURRANT and Justice PARRISH concur in Justice NEHRING’s concurring opinion.