Salt Lake County v. Holliday Water

2010 UT 45
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Salt Lake County, a political 	No. 20080522
subdivision of the State of Utah,
Plaintiff and Appellee,
v.
Holliday Water Company, a Utah 	F I L E D
corporation,
Defendant and Appellant. 	June 11, 2010
---
Third District, Salt Lake
The Honorable Joseph C. Fratto, Jr.
No. 060904357
Attorneys: 	Lohra L. Miller, T.J. Tsakalos, Craig W. Anderson,
Salt Lake City, for plaintiff
Wallace T. Boyack, Paul H. Ashton, Salt Lake City,
for defendant
---
NEHRING, Justice:
INTRODUCTION
¶1 	Holliday Water Company appeals the district court’s
grant of summary judgment in favor of Salt Lake County, which
requires Holliday Water to fluoridate its water supply in
compliance with Salt Lake Valley Health Department’s Regulation
33 (as amended).
¶2 	While these proceedings were pending, the Utah State
Legislature passed Senate Bill 29, amending Utah Code section 19-
4-111 to exempt “corporate public water systems” from having to
comply with Regulation 33. 	Holliday Water, contending it is a
corporate public water system as defined by the new statute,
filed a Notice of Suggestion of Mootness, arguing that the 2009
amendments moot this appeal.

1 Fluorine is defined as “[a] pale-yellow, highly corrosive,
poisonous, gaseous halogen element, the most electronegative and
most reactive of all the elements, used in a wide variety of
industrially important compounds.” 	The American Heritage
Dictionary 516-17 (2d ed. 1985). 	Concluding the Utah State
Legislature would not contemplate adding a toxic substance to
public water supply, even if by popular opinion, we assume the
word “fluorine” in the statute should actually be the word
“fluoride,” a beneficial compound often added to a water supply
to prevent tooth decay. 	As such, we use the term “fluoride”
instead of “fluorine” throughout this opinion.
No. 20080522 	2
¶3 	Because we find that the 2009 amendments to section 19-
4-111 moot this case, we vacate the decision of the district
court and remand with instructions to dismiss the complaint as
moot. 	However, we also hold that to the extent Salt Lake County
and Holliday Water entered an enforceable contract before the
2009 amendments took effect, the 2009 amendments will not apply
retroactively to displace the terms of that contract.
BACKGROUND
¶4 	The Utah Safe Drinking Water Act, originally passed in
1953, prohibits the addition or removal of fluorine 1 to “public
water supplies, whether state, county, municipal, or district,”
unless a majority of voters in the affected area vote in favor of
such an action in an election. 	See Utah Code Ann. § 19-4-
111(2)(a) (Supp. 2009).
¶5 	In November 2000, Salt Lake County held a general
election that included a ballot question regarding whether
fluoride should be added to public water systems in Salt Lake
County. 	A majority of registered voters approved the ballot
initiative, thus requiring the addition of fluoride to the public
water systems in Salt Lake County. 	After the vote, the Salt Lake
Valley Health Department drafted Regulation 33, which mandated
fluoridation of all “regulated public water systems” in Salt Lake
County by October 1, 2003. 	The Salt Lake Valley Board of Health
subsequently amended Regulation 33 in 2005 to exempt
“functionally separate” water systems from the fluoridation
requirement.
¶6 	Holliday Water Company, a registered Utah corporation
in Salt Lake County, declared itself to be a functionally
separate water system and exempt from Regulation 33, as amended.
In response, Salt Lake County filed a complaint against Holliday
Water seeking a declaratory judgment ruling that due to its

3 	No. 20080522
interconnections with Salt Lake City, Holliday Water is not a
functionally separate water system and is required to comply with
Regulation 33.
¶7 	Holliday Water filed an answer and counterclaim,
seeking a declaration that it is a functionally separate water
system under the amended regulation. 	Salt Lake County moved for
summary judgment. 	At the same time, Holliday Water filed a
Motion for Declaratory Judgment asserting Utah Code section 19-4-
111 and Regulation 33 do not apply to it.
¶8 	In a memorandum decision, the district court granted
Salt Lake County’s motion for summary judgment and denied
Holliday Water’s motions. 	The district court found that under
the plain language of the statute, along with Regulation 33,
Holliday Water is not functionally separate because it is a
public system that has interconnections with Salt Lake City, it
is not independent of any other water system, and it provides
water service to retail customers.
¶9 	Holliday Water appealed the district court’s grant of
summary judgment in favor of Salt Lake County and the denial of
Holliday Water’s Motion for Declaratory Judgment on the
application of Utah Code section 19-4-111.
¶10 	While these proceedings were pending before this court
and in response to the lobbying efforts of Holliday Water, the
Utah State Legislature passed Senate Bill 29, amending section
19-4-111 of the Safe Drinking Water Act to expressly exempt from
compulsory fluoridation those “corporate public water systems”
whose shareholders oppose adding the chemical. 	Safe Drinking
Water Act Amendments, ch. 371 § 1, 2009 Utah Laws 2029-30. 	Under
the amended statute, a corporate public water system is defined
as “a public water system that is owned by a corporation engaged
in distributing water only to its shareholders.” 	Utah Code Ann.
§ 19-4-111(1)(a).
¶11 	In response to the new legislation and pursuant to rule
37 of the Utah Rules of Appellate Procedure, Holliday Water filed
a Notice of Suggestion of Mootness, arguing that because it is a
corporate public water system as defined in the new version of
the statute, Salt Lake County has no authority to compel Holliday
Water to fluoridate its water supply.
¶12 	Salt Lake County filed a response to Holliday Water’s
Notice of Suggestion of Mootness arguing, among other things,
that Senate Bill 29 is not retroactive and does not apply to this
case.

2 Because we determine Senate Bill 29 does apply to this
appeal, we decline to address the argument that Holliday Water
meets the definition of a functionally separate water system
under the 2005 version of the statute.
No. 20080522 	4
¶13 	We called for supplemental briefing on the mootness
issue. 	We have jurisdiction pursuant to Utah Code section 78A-3-
102(3)(j) (2009).
STANDARD OF REVIEW
¶14 	We review a summary judgment determination “for
correctness, granting no deference to the [district] court’s
legal conclusions.” 	Hansen v. Am. Online, Inc., 2004 UT 62, ¶ 6,
96 P.3d 950. 	“[W]e determine only whether the [district] court
erred in applying the governing law and whether the [district]
court correctly held that there were no disputed issues of
material fact.” 	Kouris v. Utah Highway Patrol, 2003 UT 19, ¶ 5,
70 P.3d 72.
¶15 	“An appeal is moot if during the pendency of the appeal
circumstances change so that the controversy is eliminated,
thereby rendering the relief requested impossible or of no legal
effect.” 	State v. Laycock, 2009 UT 53, ¶ 12, 214 P.3d 104
(internal quotation marks omitted).
ANALYSIS
¶16 	Although the parties characterize their arguments in
several ways, this appeal concerns one central question: 	Is
Holliday Water required to add fluoride to its water supply? 	To
answer this question, we must resolve three subsidiary issues:
(1) Does Senate Bill 29, which amended Utah Code section 19-4-111
to exempt “corporate public water systems” from the fluoridation
requirement, apply to this appeal? 	(2) If Senate Bill 29 does
apply, is Holliday Water a “corporate public water system” as
defined by the amended statute and thus statutorily exempt from
the fluoridation requirement? 2 	(3) If Holliday Water qualifies
for the “corporate public water system” exemption, could Holliday
Water still be required to fluoridate its water supply under the
terms of a contract entered into before the amendments were
passed?
¶17 	We conclude that Senate Bill 29 applies to this appeal
and Holliday Water meets the definition of a “corporate public
water system” under Utah Code section 19-4-111, as amended.
Although this means Holliday Water has no statutory obligation to

3 Because Senate Bill 29 is now codified at Utah Code Ann.
§ 19-4-111 (Supp. 2009), we refer to its statutory citation
throughout the remainder of this opinion.
5 	No. 20080522
fluoridate its water supply, we also hold that to the extent
Holliday Water entered into an enforceable contract with Salt
Lake County before the statute was amended, Holliday Water may
still be bound to comply with that contract’s terms.
I. 	SENATE BILL 29 APPLIES TO THIS APPEAL
¶18 	A “[t]hreshold question[] in any case on appeal [is]
whether there is an actual controversy.” 	State v. Lane, 2009 UT
35, ¶ 15, 212 P.3d 529. 	Thus, the first question we must answer
is whether Senate Bill 29, which amended Utah Code section 19-4-
111 to add an exemption for corporate public water systems,
applies to this appeal. 3
¶19 	Largely as a result of Holliday Water’s lobbying
efforts, Utah Code section 19-4-111 was amended in the 2009 Utah
State Legislative session. 	See Safe Drinking Water Act
Amendments, ch. 371 § 1, 2009 Utah Laws 2029-30. 	Holliday Water
contends that the new amendments to Utah Code section 19-4-111
apply to this appeal and moot the controversy between the
parties.
¶20 	Salt Lake County disagrees, arguing the amended section
19-4-111 does not moot this appeal because it does not apply
retroactively to obligations that existed before the legislative
amendments were passed. 	Thus, according to Salt Lake County, the
prior version of the statute applies, and under that language, a
controversy still remains.
¶21 	We agree with Holliday Water on this point. 	“The
burden of persuading the court that an issue is moot ‘lies with
the party asserting mootness.’” 	See Cedar Mountain Envtl. Inc.
v. Tooele County, 2009 UT 48, ¶ 26, 214 P.3d 95 (Durrant, J.,
dissenting) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs., Inc. (TOC), 528 U.S. 167, 189 (2000)). 	“[M]ootness can
be determined by facts that change or develop as the suit is
pending.” 	Id. 	Indeed, “[l]egislation can often moot a civil
case, even where the legislation passes after the events have
transpired in the case.” 	Salt Lake City v. Tax Comm’n, 813 P.2d
1174, 1177 (Utah 1991); see also Berning v. A.G. Edwards & Sons,
Inc., 990 F.2d 272, 277 (7th Cir. 1993) (citing United States v.
Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801)) (recognizing
the Supreme Court’s long-standing recognition of the principle
that Congress may impose new legal rules to pending cases).

No. 20080522 	6
¶22 	We find that Holliday Water has met its burden to
demonstrate mootness. 	Although Salt Lake County is correct that
the 2009 amendments to Utah Code section 19-4-111 do not apply
retroactively and thus cannot alter contractual rights that
existed before their enactment (see infra Part III), Utah Code
section 19-4-111 is the current law, and it prospectively governs
the obligations of water companies to add fluoride to their water
supplies. 	The 2009 amended version of this section provides:
19-4-111 Fluori[d]e added to or removed from
water –- Election or shareholder vote
required
. . .
(2)(a) Except as provided in Subsection (7)
or Subsection 19-4-104(1)(a), public water
supplies, whether state, county, municipal,
or district, may not have fluori[d]e added to
or removed from the water supply without the
approval of a majority of voters in an
election in the area affected.
. . .
(3) If a majority of voters on an opinion
question under Subsection (2)[] approve the
addition of fluori[d]e or the removal of
fluori[d]e from the public water supplies
within the county, the local health
departments shall require the addition of
fluori[d]e to or the removal of fluori[d]e
from all public water supplies within that
county other than those systems:
(a) that are functionally separate from
any other public water systems in that
county;
. . .
(7)(a) A supplier may not add fluori[d]e to
or remove fluori[d]e from a corporate public
water system unless the majority of the votes
cast by the shareholders of the corporate
public water system authorize the supplier to
add or remove the fluori[d]e.

7 	No. 20080522
(b) If a corporate public water system’s
shareholders do not vote to add fluori[d]e
under Subsection (7)(a), the supplier shall
annually provide notice to a person who
receives water from the corporate public
water system of the average amount of
fluori[d]e in the water.
Utah Code Ann. § 19-4-111 (Supp. 2009) (emphasis added).
¶23 	The statute defines a “corporate public water system”
as “a public water system that is owned by a corporation engaged
in distributing water only to its shareholders.” 	Id. § 19-4-
111(1)(a). 	Under this statute, if an entity demonstrates it is a
corporate public water system, the authority to make the decision
to fluoridate or not fluoridate its water supply is vested in the
shareholders of that entity not the voters of the corresponding
county. 	See id. § 19-4-111(7)(a). 	Although individuals other
than shareholders may be the primary consumers of the company’s
water, the decision to fluoridate does not belong to them; it
belongs to the shareholders. 	Thus, the next question we must
answer is whether Holliday Water is a corporate public water
system as defined by the amended statute.
II. 	HOLLIDAY WATER IS A “CORPORATE PUBLIC WATER SYSTEM” AS
DEFINED BY UTAH CODE SECTION 19-4-111(1)(a)
¶24 	The parties vigorously dispute whether Holliday Water
meets the definition of a “corporate public water system” under
Utah Code section 19-4-111(1)(a) (Supp. 2009). 	Holliday Water
believes that it is so obvious that it qualifies as a corporate
public water system, that it asks us to take judicial notice of
this as a fact. 	In support of taking judicial notice of its
status, Holliday Water directs us to: 	(1) a statement we made in
Holliday Water Co. v. Lambourne, 466 P.2d 371 (Utah 1970), (2) a
definition from the Utah Safe Drinking Water Act, and (3) a
letter from the Public Service Commission. 	Holliday Water next
asserts that even without taking judicial notice of its status,
we should conclude that Holliday Water falls squarely within the
definition of a corporate public water system under the plain
language of the statute.
¶25 	Salt Lake County disagrees. 	First, the County argues
that under Utah Rule of Evidence 201 we cannot take judicial
notice of a record in a different case or proceeding, or of a
fact in dispute. 	Next, the County argues that Holliday Water
does not meet the definition of a corporate public water system
under the plain language of the statute.

4 Although we decline to undertake a comprehensive analysis
of the lawmakers’ intent behind this statute, we note that the
legislative history in this case leaves us with no doubt as to
whom the “corporate public water system” definition was meant to
apply. 	As Salt Lake County conceded at oral argument, the
“corporate public water system” exemption and its related
statutory amendments were passed as a direct result of the
lobbying efforts of Holliday Water’s shareholders, and in an
(continued...)
No. 20080522 	8
¶26 	We decline to take judicial notice that Holliday Water
is a corporate public water system. 	Instead, we conclude that
this issue is best resolved by means of statutory interpretation.
¶27 	When interpreting statutes, “we look first to the plain
language of the statute,” and give effect to that language unless
it is ambiguous. 	Stephens v. Bonneville Travel, Inc., 935 P.2d
518, 520 (Utah 1997). 	In doing so, “our primary goal is to
evince the true intent and purpose of the Legislature.” 	State v.
Martinez, 2002 UT 80, ¶ 8, 52 P.3d 1276 (internal quotation marks
omitted).
¶28 	Utah Code section 19-4-111(1)(a) defines a “corporate
public water system” as “a public water system that is owned by a
corporation engaged in distributing water only to its
shareholders.” 	There is no dispute that Holliday Water is a
corporation that operates a public water system. 	Rather, the
parties’ disagreement over the statute centers on whether
Holliday Water distributes water only to its shareholders.
¶29 	Holliday Water distributes water to shareholders
through “connections” or “meters.” 	Once the water is
distributed, the shareholders are then free to use or
redistribute the water as they desire. 	They are free to provide
water to nonshareholders, whether family, renters, or strangers.
¶30 	Although Salt Lake County concedes that Holliday Water
distributes water only to meters associated with its
shareholders, Salt Lake County contends that because water from
those meters may eventually find its way to nonshareholders and
other retail customers, Holliday Water does not qualify as a
corporate public water system.
¶31 	The County’s argument is unpersuasive. 	The phrase
“engaged in distributing water only to its shareholders” is clear
and unambiguous; we therefore need not expand our search for
meaning beyond the text of the statute. 4 	World Peace Movement of

4 (...continued)
attempt to achieve an exemption from Salt Lake County Health
Department’s fluoridation requirement.
5 Although we decline Holliday Water’s invitation to take
judicial notice of its “corporate public water system” status, we
note that the statutory definition of a corporate public water
system strongly resembles the description of a “mutual water
company” contained in our case law. 	See, e.g., E. Jordan Irr.
Co. v. Morgan, 860 P.2d 310, 311 n.1 (Utah 1993) (defining a
“mutual water company” as a “nonprofit corporation formed to
supply water only to its shareholders”).
We find these mutual water cases and their discussion of the
distribution of company water to shareholders to be instructive.
Indeed, they illustrate the principle that once the water is
distributed to a meter, it becomes the property of a shareholder
and the corporation no longer has control over how the water is
used. 	See id. at 318 (“The mutual water corporation is under a
perpetual duty to deliver water to the shareholder; it may not
decide that it would rather deliver the water to someone else or
for some other purpose. . . . [It is] [t]he shareholder, not the
corporation, [who] decides whether to use his or her water on
certain crops, for domestic use,” or whether to use the water for
any purpose at all. (citation omitted)); Baird v. Upper Canal
Irr. Co., 257 P. 1060, 1065 (Utah 1927) (same); see also Consol.
Peoples Ditch Co. v. Foothill Ditch Co., 269 P. 915, 920 (Cal.
1928) (“The term ‘Mutual Water Company[]’. . . has no defined
legal meaning which would serve to differentiate corporations,
organized for the acquiring of water rights and the distribution
of water, from other corporations owning and administering
property for the benefit of their stockholders”).
9 	No. 20080522
Am. v. Newspaper Agency Corp., 879 P.2d 253, 259 (Utah 1994)
(“Only when we find ambiguity in the statute’s plain language
need we seek guidance from the legislative history and relevant
policy considerations.”) 	Under the plain language of the
statute, a corporation operating a public water system satisfies
the definition of a corporate public water system so long as the
corporation’s water is delivered exclusively to the shareholders
of the corporation. 	How, where, and to whom the water travels
after it is in the shareholders’ possession is of no
consequence. 5 	Because it is undisputed that Holliday Water
distributes water only to meters assigned to its shareholders, we
hold that Holliday Water qualifies as a corporate public water
system under the amended statute and that it has no statutory
obligation to fluoridate its water supply.

6 The issue of whether the parties have an enforceable
express agreement or an agreement by estoppel is a separate
action that remains pending in the district court.
No. 20080522 	10
¶32 	Having determined that Holliday Water meets the
definition of a corporate public water system under the statute,
we now address Salt Lake County’s argument that Holliday Water
must comply with Regulation 33 notwithstanding the application of
the amendments to Utah Code section 19-4-111.
III. 	HOLLIDAY WATER MAY STILL BE BOUND BY A PREEXISTING CONTRACT
TO COMPLY WITH SALT LAKE VALLEY HEALTH DEPARTMENT’S REGULATION 33
¶33 	Salt Lake County argues that notwithstanding the
amendments to Utah Code section 19-4-111, Holliday Water may
still be required to fluoridate its water supply under an express
agreement it made with the County before section 19-4-111 was
amended. 	Salt Lake County renews its argument that the new
statute should not apply retroactively to invalidate contracts
that were in force before the amendments were passed. 6
¶34 	In contrast, Holliday Water asserts that every Utah
contract is entered into with the knowledge that “the State
Legislature can, in the exercise of its police powers, pass laws
reasonably necessary to secure the health, safety, and general
welfare of the community regardless of whether such laws or
regulations affect contracts incidentally, directly or
indirectly.” 	Holliday Water argues that any agreement it may
have entered into with the County is subject to current law, and
thus, even if Holliday Water agreed to fluoridate its water
supply by express contract or otherwise, to require Holliday
Water to comply with that promise now would be to force it to
commit an “illegal act.”
¶35 	While it is true that when a legislative enactment
renders preexisting contract terms illegal, the contract may be
deemed unenforceable, it is also true that preexisting contracts
at odds with new legislation will not automatically be deemed
invalid. 	Rather, we must conduct a balancing test to determine
whether “the interest in [enforcing the contract] is clearly
outweighed . . . by a public policy against the enforcement of
such terms.” 	Restatement (Second) of Contracts § 178 (1981); see
also 15 Corbin on Contracts, § 89.16 (1993).
A. 	The 2009 Amendments to Utah Code Section 19-4-11l Do Not
Automatically Invalidate Preexisting Contract Obligations

11 	No. 20080522
¶36 	“Despite the general rule that every contract in
violation of [the] law is void, the fact that a contract serves a
prohibited purpose does not necessarily make the contract
unenforceable.” 	Peterson v. Sunrider Corp., 2002 UT 43, ¶ 39, 48
P.3d 918 (internal quotation marks and citations omitted).
“[T]he court must then determine whether [the] statute or public
policy demands that the contract be held unenforceable.” 	Id. 	In
doing so, a court should “look at the over-all picture . . . and
determine upon the facts of the individual case whether the ends
of justice demand that relief be granted.” 	McCormick v. Life
Ins. Corp. of Am., 308 P.2d 949, 952 (Utah 1957). 	This analysis
includes both an identification of the purpose of enforcing the
new legislation, as well as the public policy of preserving the
freedom to contract. 	See 15 Corbin on Contracts, § 79.4 (1993)
(“[C]onclusions on enforceability” are made “by weighing the
particular public policy at issue against the damage that the
freedom of contract may suffer if the court does not enforce the
contract.”).
¶37 	The 2009 amendments to section 19-4-111 are irrelevant
to the protection of the health, safety, and welfare of the
citizens in Salt Lake County. 	Instead, the purpose of the 2009
amendments is to shift the decision to add or discontinue the
addition of fluoride to a water system from the citizens in the
affected area to the shareholders who own the water system. 	See
Utah Code Ann. § 19-4-111(7)(a). 	This shift in political power
does not establish a legislative preference for fluoridation, but
rather a policy of granting corporate public water systems the
autonomy and power to make their own fluoridation decisions.
¶38 	Unless Holliday Water lacked the power to enter into
the alleged contract before these amendments were passed, its
decision to enter an agreement with the County was also an
exercise of its autonomy. 	To the extent that the enforcement of
contracts does not clearly contravene public rights or the
general welfare, it is the function of this court to enforce and
maintain contracts rather than to enable parties to avoid their
contractual obligations. 	See Baltimore & Ohio Sw. R.R. Co. v.
Voigt, 176 U.S. 498, 505 (1900); Devetter v. Principal Mut. Life
Ins. Co., 516 N.W.2d 792, 794 (Iowa 1994) (“For a court to strike
down a contract on [public policy] grounds, it must conclude that
the preservation of the general public welfare imperatively . . .
demands invalidation so as to outweigh the weighty societal
interest in the freedom of contract.”).
¶39 	Passing a law that allows shareholders to vote against
the addition of fluoride to drinking water is irrelevant to
public safety because it neither mandates nor prohibits the
fluoridation of water. 	Therefore, freely entered contracts,

No. 20080522 	12
legal when executed, that implement fluoride practices in a
manner made illegal by the amended version of section 19-4-111
will not be displaced.
¶40 	Because we have concluded that no overriding public
policy interest prevents enforcement of an alleged preexisting
contract, we now turn to the question of whether the 2009
amendments should apply retroactively to govern preexisting
private contracts that may have been entered in this case. 	We
are persuaded by Salt Lake County’s argument that the 2009
amendments should not invalidate any preexisting contract between
the parties.
B. 	The 2009 Amendments Will Not Apply Retroactively to
Invalidate Any Preexisting Contract
¶41 	As a general rule, we apply the version of the statute
in effect “at the time of the events giving rise to [the] suit.”
Taghipour v. Jerez, 2002 UT 74, ¶ 5 n.1, 52 P.3d 1252. 	Indeed,
the Utah Code expressly restricts retroactive application of
legislative changes by stating “[n]o part of these revised
statutes is retroactive, unless expressly so declared.” 	Utah
Code Ann. § 68-3-3 (2008). 	When no such declaration of
retroactive application is present in a legislative amendment, we
must apply the statute in effect at the time of the controversy
unless one of two exceptions apply: 	(1) the legislative change
merely “clarif[ies] the meaning of an earlier enactment,” Utah
Dep’t of Soc. Servs. v. Higgs, 656 P.2d 998, 1001 (Utah 1982) or
(2) the amendment changed the prior law in a purely procedural
way that does not affect the substantive rights of the parties.
See Harvey v. Cedar Hills City, 2010 UT 12, ¶ 14, 227 P.3d 256
(stating retroactive application is permissible “if the amended
version of the statute does not enlarge, eliminate, or destroy
vested or contractual rights” (alteration and internal quotation
marks omitted)); Brown & Root Indus. Serv. v. Indus. Comm’n, 947
P.2d 671, 675 (Utah 1997) (same).
¶42 	Utah Code section 19-4-111 (Supp. 2009) contains no
language about retroactive application; therefore, to determine
if the amendments will override a possible private contract, we
must determine whether the 2009 amendments to the statute are
merely procedural or for clarification, or if they affect the
substantive rights of the parties. 	We conclude that the 2009
amendments were not procedural in nature, and that they possibly
affected vested contractual rights that existed before the
changes to the statute were made.
1. 	The 2009 Amendments Do More Than Merely Clarify the Meaning
of an Earlier Enactment

13 	No. 20080522
¶43 	It is well established in our case law that “when the
purpose of an amendment is to clarify the meaning of an earlier
[statute], the amendment may be applied retroactively in pending
actions.” 	Due South, Inc. v. Dep’t of Alcoholic Beverage
Control, 2008 UT 71, ¶ 14, 197 P.3d 82 (alteration in original)
(quoting Kilpatrick v. Wiley, 2001 UT 107 ¶ 59, 37 P.3d 1130).
An amendment serves as a clarification when it corrects a
discrepancy or merely “amplif[ies] . . . how the law should have
been understood prior to [the amendment].” 	Richards Irr. Co. v.
Karren, 880 P.2d 6, 8 (Utah Ct. App. 1994) (internal quotation
marks omitted). 	In cases of doubt or uncertainty as to the
character of an amendment, the title or preamble to a statutory
amendment may be examined to clarify the purpose of the change.
See, e.g., Shelter Am. Corp. v. Ohio Cas. & Ins. Co., 745 P.2d
843, 845 (Utah Ct. App. 1987) (noting the preamble to a statutory
amendment stated that the purpose of the amendment was to clarify
that a “mobile home” constituted a “motor vehicle,” under the
statute).
¶44 	When we examine the 2009 amendments to Utah Code
section 19-4-111, nothing in their text appears to be an attempt
to clarify preexisting language. 	Rather, the amendments add a
new subsection to the statute providing an additional exemption
to the fluoridation requirement that did not exist in any form
before the amendments were made. 	Should there be any doubt as to
the character of these amendments, the preamble to Senate Bill
29, amending section 19-4-111, is instructive. 	It states,
“[t]his bill defines terms; requires the majority of the voting
shareholders of a corporate public water system to approve the
addition or removal of fluori[d]e in the public water system; and
makes technical changes.” 	See Safe Drinking Water Act
Amendments, ch. 371 § 1, 2009 Utah Laws 2029-30. 	This language
makes clear that the amendment added a substantive requirement to
the statute and was more than a mere clarification. 	We find the
language in our case of Salt Lake Union Stock Yards v. Tax
Comm’n, to be applicable to describe the situation:
In this case we see no room for the argument
that the Legislature intended to give a
definition retroactively to words used in a
previous enactment. 	There is no language
used in the . . . amendment from which this
can be inferred. 	[The amendment] is clearly
an attempt to extend [a new] exemption to
[another class] of [individuals].
71 P.2d 538, 541 (Utah 1937). 	Senate Bill 29 was not a mere
clarification of the law; it was an affirmative addition of a new
exemption to the statute. 	We now turn to whether this addition

No. 20080522 	14
was procedural in nature, or if it affected the substantive
rights of the parties.
2. 	The 2009 Amendments Are Not Procedural Because They Grant
Corporate Public Water Systems a Right That Did Not Previously
Exist
¶45 	As we stated above, the “substantive law to be applied
throughout an action is the law in effect at the date the action
was initiated.” 	Higgs, 656 P.2d at 1000. 	An exception to this
rule applies when a law is merely procedural rather than
substantive in nature. 	See id. at 1000-01. 	A change to a law is
procedural when it does not “enlarge, eliminate, or destroy any
vested or contractual rights of the parties.” 	Due South, 2008 UT
71, ¶ 15 (internal quotation marks omitted). 	A change is
substantive “where the new statute establishes a primary right
and duty which was not in existence at the time [the claim]
arose.” 	Ball v. Peterson, 912 P.2d 1006, 1009 (Utah Ct. App.
1996) (internal quotation marks omitted).
¶46 	We are persuaded that adding an exemption from the
fluoridation requirement for “corporate public water systems” was
not merely procedural in nature. 	Rather, we find that this
change affected the structure, purpose, and key elements of
Utah’s fluoridation statutes. 	Utah law takes up the subject of
fluoridation within the Safe Drinking Water Act in sections 19-4-
101 to -112 of the Utah Code. 	Fluoridation of drinking water is
mandated where the addition of fluoride is approved in a general
election. 	Before the 2009 amendments added specific exemptions
for corporate public water systems, these systems were required
to comply with this fluoridation requirement. 	After the
amendments, corporate public water systems were exempt from
fluoridation. 	It is hard to envision a more substantive change
than mandating an action under one statute and taking away that
obligation in another.
¶47 	Because the 2009 amendments to Utah Code section 19-4-
111 vested corporate public water systems with a right they
previously did not have, the amendments were substantive in
nature, and we decline to apply them retroactively to displace
any terms in enforceable preexisting contracts entered into by
Salt Lake County and Holliday Water before the amendments were
made. 	Whether or not Salt Lake County and Holliday Water have an
enforceable contract is not squarely before us on this appeal and
should be determined in the pending action before the district
court.

15 	No. 20080522
CONCLUSION
¶48 	Because we conclude that the amendments to Utah Code
section 19-4-111 moot Holliday Water’s statutory obligation to
fluoridate its water supply, we vacate the judgment of the
district court, and remand with instructions to dismiss the
complaint as moot. 	Although we conclude that Holliday Water has
no statutory obligation under current law to comply with Salt
Lake County Health Department’s Regulation 33, Holliday Water may
have a contractual obligation to fluoridate its water supply.
The issue of whether a preexisting contract was entered between
the parties that requires Holliday Water to fluoridate its water
supply is presently pending in a separate action before the
district court.
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¶49 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Parrish concur in Justice Nehring’s
opinion.
¶50 	Justice Wilkins acted on this opinion prior to his
retirement.
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