                            2015 UT 75

                              IN THE
             SUPREME COURT OF THE STATE OF UTAH


                  KENDALL UTLEY, an individual,
                           Appellee,
                                 v.
          MILL MAN STEEL, INC., a Colorado corporation,
                           Appellant.


                           No. 20130162
                      Filed August 20, 2015

                  Third District, Salt Lake Dep‘t
                The Honorable John Paul Kennedy
                         No. 110901007

                            Attorneys:
     Andrew Stavros, Austin B. Egan, Salt Lake, for appellee
    Bryce D. Panzer, Michael S. Wilde, Salt Lake, for appellant

        ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the
court with respect to Part I and Part II.A, in which JUSTICE PARRISH
 and JUSTICE HIMONAS joined, and the judgment of the court with
      respect to Part II.B, in which JUSTICE HIMONAS joined.
       CHIEF JUSTICE DURRANT authored an opinion concurring in
part and dissenting in part in which JUSTICE DURHAM joined in full
              and JUSTICE PARRISH joined as to Part I.
                        Cite as: 2015 UT 75
                       Opinion of the Court

 ASSOCIATE CHIEF JUSTICE LEE, opinion of the court as to Part I
and Part II.A and concurring in the judgment of the court as to
Part II.B.:
  ¶1 Mill Man Steel fired Kendall Utley on suspicion that he had
misappropriated steel from the company. In so doing, Mill Man
refused to pay Utley the commissions he claimed to have earned,
asserting a right to withhold the commissions as an offset against
the value of the allegedly misappropriated steel. Utley filed this
suit, claiming that Mill Man had violated the Utah Payment of
Wages Act (UPWA). The district court granted summary judg-
ment for Utley. It held that Mill Man was required to pay Utley
his commissions and that Mill Man could not qualify under a
UPWA provision allowing an employer to withhold earned wages
upon ―present[ing] evidence that in the opinion of a hearing of-
ficer . . . would warrant an offset.‖ UTAH CODE § 34-28-3(5)(c)
(2013).1
  ¶2 We reverse. We interpret this provision to allow Mill Man
to present evidence to the district court in an attempt to establish
that Utley‘s misappropriation ―would warrant an offset‖ justify-
ing Mill Man‘s failure to pay Utley‘s commissions. A contrary rul-
ing would render the subsection (5)(c) exception a practical nulli-
ty. We avoid that result by interpreting the statute to allow an
employer in a case like this one to seek a post-withholding opin-
ion of a court or administrative law judge that an offset was war-
ranted. Such employer does so at its peril, however. If the offset is
not found to be warranted, the employer will be subject to liability
and penalties under the UPWA.
                                  I

  ¶3 In July 2009, appellant Mill Man hired Kendall Utley as a
sales and purchasing agent to sell its steel plate and coil. A short
time later, Utley opened a Mill Man office in Pleasant Grove, at
the site of one of Utley‘s existing customers, Rocky Mountain
Welding (RMW). Under the employment arrangement with Utley,


 1 The UPWA was amended in May 2014. We refer throughout
our opinion to the version of the statute in effect at the time of
Mill Man‘s withholding.


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                  UTLEY v. MILL MAN STEEL, INC.
                       Opinion of the Court

Mill Man sent inventory to the RMW location and Utley was paid
on a commission basis. About a year later, however, Mill Man
went to the RMW site for an inspection and discovered that some
700 tons of steel—roughly 40 percent of the logged inventory—
was missing. The value of the missing steel allegedly was about
$370,000. Mill Man promptly fired Utley.
  ¶4 Prior to his termination, Utley sold amounts of steel that
purportedly entitled him to commissions totaling $100,479.99.
Shortly after Mill Man fired Utley, however, it informed him that
it would not pay any of his outstanding commissions but was re-
taining them to offset its losses. Utley then filed suit claiming
breach of contract and a violation of the Utah Payment of Wages
Act. Mill Man raised affirmative defenses and counterclaims, in-
cluding recoupment and offset, breach of fiduciary duty, conver-
sion, fraud, and imposition of a constructive trust.
  ¶5 Utley moved for summary judgment. Mill Man opposed
the motion, arguing that it did not owe Utley his commissions due
to his breach of fiduciary duty and, alternatively, that Mill Man
was due an offset under the UPWA in the amount of $370,000 be-
cause of Utley‘s negligence.
  ¶6 The district court granted summary judgment in favor of
Utley. It was undisputed that Utley was owed $100,479.99 in
commissions. And in the district court‘s view, the UPWA did not
permit a preemptive withholding of these commissions. Thus, the
district court concluded that Mill Man was required to pay Utley
his commission under the terms of the UPWA. It also imposed a
penalty on Mill Man to the tune of some $50,000. In all, the district
court awarded Utley $205,262.37.
  ¶7 Mill Man appealed. We review the summary judgment de-
cision below de novo, yielding no deference to the district court.
See, e.g., Bahr v. Imus, 2011 UT 19, ¶¶ 12–18, 250 P.3d 56.
                                 II
  ¶8 The UPWA provides that ―[w]henever an employer sepa-
rates an employee from the employer‘s payroll the unpaid wages
of the employee become due immediately, and the employer shall
pay the wages to the employee within 24 hours of the time of sep-
aration at the specified place of payment.‖ UTAH CODE § 34-28-
5(1)(a). An employer who fails to make this payment in this
timeframe, moreover, is guilty of unlawfully withholding wages

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                        Opinion of the Court

under the UPWA. Id. § 34-28-12(1). And the sanctions for unlaw-
ful withholding are significant, including not only a statutory fi-
ne,2 but even criminal liability.3
  ¶9 This case implicates an exception to the general rule. Under
the exception, withholding of wages is permitted where ―the em-
ployer presents evidence that in the opinion of a hearing officer or
an administrative law judge would warrant an offset.‖
Id. § 34-28-3(5)(c). This exception is one in a series. The others
listed in the statute allow an employer to withhold earned wages
where ―the employer is required to withhold or divert the wages‖
because of a court order or state or federal law; ―the employee ex-
pressly authorizes the deduction in writing‖; or ―the employer
withholds or diverts the wages‖ in accordance with certain au-
thorized retirement plans. Id. § 34-28-3(5)(a), (b), & (d).
  ¶10 Mill Man claims a right to invoke the subsection 5(c) excep-
tion in this case. It asserts that Utley‘s misappropriation of its steel
is a matter that ―would warrant an offset‖ against his commis-
sions, and finds error in the district court‘s refusal to allow it to
present evidence in support of that claim. Utley defends the dis-
trict court‘s decision on two grounds: (a) that the statute requires
an employer to secure an ―opinion‖ as to the viability of an offset
before withholding any wages; and (b) that a district court judge is
not a ―hearing officer‖ under the terms of the UPWA. We disagree
on both counts, and reverse and remand for further proceedings.
                                   A
 ¶11 Utley first defends the district court‘s decision on timing
grounds. He claims that subsection 5(c) is unavailable because this


 2  UTAH CODE § 34-28-5(1)(b) (providing for a penalty of up to
sixty days‘ wages at the employee‘s then-current rate).
 3  Id. § 34-28-12(1) (providing that employer who ―violate[s], or
fail[s] to comply with‖ the UPWA ―shall be guilty of a misde-
meanor‖); id. § 34-28-12(2) (employer who ―refuse[s] to pay the
wages due and payable when demanded‖ or ―falsely den[ies] the
amount thereof, or that the same is due‖ with the intent to secure
a discount or the intent to ―annoy, harass, oppress, hinder, delay
or defraud,‖ is ―guilty of a misdemeanor‖).


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                   UTLEY v. MILL MAN STEEL, INC.
                       Opinion of the Court

provision makes the opinion of the hearing officer a precondition to
the right of the employer to withhold. Utley bases this position on
two grounds: (1) the terms of the exception—specifically the pro-
viso that the exception allowing withholding is not available ―un-
less‖ the employer presents evidence that is deemed by the hear-
ing officer to ―warrant an offset,‖ UTAH CODE § 34-28-3(5)(c), and
(2) the structure of the statute—the fact that the other, parallel ex-
ceptions in the UPWA appear to be preconditions. We find neither
point persuasive, and accordingly reject this basis for foreclosing
Mill Man‘s reliance on subsection 5(c).
                                  1
  ¶12 The term ―unless‖ is one of condition. WEBSTER‘S THIRD
NEW INTERNATIONAL DICTIONARY 2503 (2002) (defining ―unless‖
as ―except on the condition that‖); AMERICAN HERITAGE
DICTIONARY 1402 (2d ed. 1981) (same). But without more, the con-
ditional construct of this term does not impose a temporal limita-
tion. We can easily speak of unless conditionality without refer-
ence to timing, as in a parent‘s condition to a child that ―you may
not take the car unless you fill it with gas.‖
  ¶13 Granted, unless conditionality is sometimes temporal. De-
pending on context, the child subject to the above requirement
might properly understand it as a precondition. That might hold,
for example, if everyone knows that the car‘s gas gauge is current-
ly on empty. But context could also eliminate the timing ele-
ment—and leave only the condition. That, in fact, might be the
better interpretation of the parent‘s directive to fill the car with
gas in certain circumstances. If the car has plenty of gas in it for
the child‘s errand, presumably the parent would prefer that the
tank be filled after the child uses it. And in that circumstance ―un-
less‖ would properly be understood as a condition, but not a pre-
condition.
  ¶14 In our view, the same holds for the ―unless‖ condition in
subsection 5(c) of the UPWA. We interpret the term ―unless‖ in
subsection 5 as merely expressing a condition (without any sug-
gestion as to timing).4 That conclusion follows, as explained be-


 4 The dissent challenges our approach as somehow attributing
two different meanings to ―unless,‖ depending on its application
                                                  (continued . . .)

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                        Opinion of the Court

low, from the relevant surrounding circumstances—specifically,
from the legal and practical context of the statute‘s operation,
which render the operation of the 5(c) exception a practical nullity
under Utley‘s approach.
   ¶15 Under Utley‘s interpretation of the statute, an employer
wishing to withhold wages on the basis of a claim of an offset
must first file a pre-withholding legal proceeding and convince a
hearing officer to render an ―opinion‖ that the employer‘s ―evi-
dence . . . would warrant an offset.‖ UTAH CODE § 34-28-3(5)(c). As
we understand the statutory scheme, however, these preconditions
are a barrier that few if any litigants could overcome—at least
within the 24-hour period in which an employer is required to
pay wages after termination. We know of no mechanism in the
statutory or regulatory scheme under the UPWA that would al-
low an employer to withhold under subsection 5(c) while still pro-
tecting itself from liability for unlawful withholding. And the ab-
sence of such a mechanism would render the 5(c) exception a nul-
lity under Utley‘s interpretation. We reject that interpretation on
that basis. See VCS, Inc. v. Utah Community Bank, 2012 UT 89, ¶ 18,
293 P.3d 290 (rejecting an interpretation of a statute because it ran
―afoul of the settled canon of preserving independent meaning for
all statutory provisions‖).
  ¶16 The wheels of justice can occasionally be put in motion in a
hurry, as by entry of a stay or a temporary restraining order. But
an employer with an obligation to pay a terminated employee
within 24 hours (without withholding any ―offset‖ amount)
would be hard-pressed to secure a judge‘s ―opinion‖ on evidence
of an offset within that narrow timeframe.

to the statute‘s listed exceptions. Infra ¶ 31. This misunderstands
our position. We do not conclude that ―unless‖ has ―a different
meaning as applied to subsection (c) than it has as applied to sub-
sections (a), (b), and (d).‖ Infra ¶ 31. Instead, we hold that ―unless‖
is used consistently in the sense of a mere condition (without a
timing element). That sense applies across the board to all of the
listed objects of ―unless‖ conditionality. The fact that some of the
listed objects will usually be satisfied before the withholding
changes nothing. The term ―unless‖ still conveys the simple—and
consistent—notion of mere conditionality.


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                  UTLEY v. MILL MAN STEEL, INC.
                       Opinion of the Court

  ¶17 None of the options presented by the dissent, infra
¶¶ 8–80, is viable. The notion of a ―preliminary finding,‖ infra
¶ 80, based on a ―threshold showing‖ or a ―proffer of evidence,‖
infra ¶ 79, would require the development of a new procedural
mechanism unknown by our current rules of civil procedure. We
see no basis for inferring a ―legislative intent‖ to require our
courts to establish such a sui generis proceeding. Infra ¶ 79. To al-
ter our civil rules in this way, the legislature would have to do
more than vaguely intend to do so. It would have to follow the
constitutional prerequisites for amending the rules of this court.
See UTAH CONST. art. VIII, § 4 (requiring a two-third majority vote
of both houses in order for the legislature to amend rules of pro-
cedure that have been adopted by the Utah Supreme Court). In
the absence of such a move by the legislature, we cannot lightly
presume that it intended to embrace the novel procedural mecha-
nism imagined by the dissent.
 ¶18 Our rules do encompass means for preliminary, non-final
decisions—in the limited circumstance of entry of a stay, UTAH R.
CIV. P. 62, or of entry of a temporary restraining order or prelimi-
nary injunction, id. at 65A. But none of these mechanisms is viable
here.
  ¶19 A ―stay‖ is a misfit. An employer seeking to invoke the
subsection 5(c) exception would not be seeking to halt a judgment
or the implementation of a law. See Id. at 62. (providing for stays
of execution of judgments, stays pending appeal, and injunctions
pending appeal). It would be seeking an ―opinion‖ on the merits
of a pending case; and that is not the function of a stay.

  ¶20 A ―preliminary injunction,‖ see infra ¶ 81, is both ill-suited
and practically unavailable in the 24-hour timeframe established
by statute. An employer would be hard-pressed, in a case where
mere money is at stake, to make the showing of irreparable harm
that is necessary to sustain entry of a preliminary injunction. See
UTAH R. CIV. P. 65A(e)(1) (requiring applicant to show that ―irrep-
arable harm‖ will occur absent an injunction); Hunsaker v. Kersh,
1999 UT 106, ¶ 9, 991 P.2d 67 (―Irreparable injury justifying an in-
junction is that which cannot be adequately compensated in dam-
ages or for which damages cannot be compensable in money.‖ (in-
ternal quotation marks omitted)). And even if such a showing



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                        Opinion of the Court

could be made, it would be difficult, at best, to do so within the
24-hour time period mandated by the UPWA.
  ¶21 Granted, an ―[e]x parte motion[] for emergency relief‖
could conceivably be resolved within a 24-hour period. Infra ¶ 81.
But a merits-based ―opinion‖ on the legal viability of an offset
could hardly be entered on an ex parte basis. Surely, an adversary
preliminary injunction hearing would be required. And the odds
of such a hearing being noticed, held, and resolved within 24
hours are long (if not impossible). The ―stay‖ imagined by the dis-
sent is no legitimate answer. Infra ¶ 81. It would be highly anoma-
lous for the usual operation of a statutory exception to require the
entry of a preliminary injunction and stay blocking enforcement
of the core requirement of the statute—all within 24 hours.
   ¶22 The practical difficulty associated with the heroic proce-
dural measures proffered by the dissent persuades us to reject Ut-
ley‘s construction of the ―unless‖ condition in section 5. If an em-
ployer cannot reasonably withhold wages under subsection 5(c)
before a court renders an opinion through the ordinary course of
litigation, the better view is that ―unless‖ is not a precondition. We
adopt that construction on the ground that it avoids the effective
nullification of the employer‘s right to withhold based on a
judge‘s determination that the employer‘s evidence ―warrant[s]
an offset.‖ UTAH CODE § 34-28-3(5)(c).
  ¶23 As Mill Man has suggested, the UPWA can easily be inter-
preted to subject employers to penalties and sanctions for unlaw-
ful withholding if they are later deemed to have withheld
amounts that do not ―warrant an offset‖ in the judge‘s ―opinion.‖
That is a better interpretation of the statute than one that renders
one of its provisions a nullity.
  ¶24 The potential for criminal liability is no barrier to our view
of the statute, or for overriding its terms on the basis of a sup-
posed absurdity. See infra ¶ 76. Granted, the statute ―makes no ex-
ception for good-faith counterclaims that the employer is later un-
able to prove in court.‖ Infra ¶ 76. And the risk of criminal liability
attaches ―the moment a court rules in the employee‘s favor‖ un-
der the UPWA, ―even in a close case where the employee satisfies
the preponderance of the evidence standard only by the narrow-
est of margins.‖ Infra ¶ 76. But the legislature apparently decided
that the threat of criminal liability was important—as a deterrent

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                   UTLEY v. MILL MAN STEEL, INC.
                        Opinion of the Court

to an employer‘s violation of the statute. Without an element of
bad faith, moreover, the dissent is right that the potential for crim-
inal liability arises whenever an employer is found to have violat-
ed the statute.
  ¶25 That does not mean that criminal charges would be
brought in every case, however. One response to the dissent‘s
concern is to recall the buffer that is provided by the mechanism
of prosecutorial discretion. A prosecutor would presumably be
inclined to withhold criminal charges in a case in which the em-
ployer‘s withholding is made in good faith but rejected on the
―narrowest of margins.‖
  ¶26 In any event, the dissent‘s proffered solution does nothing
to solve its concern regarding criminal liability. An employer that
is preliminarily deemed entitled to withhold wages but ultimately
found in violation of the statute has a strong basis for asserting
that it acted in good faith. But such an employer would still be
subject to criminal liability for ―fail[ing] to comply with‖ a provi-
sion of the UPWA. UTAH CODE § 34-28-12(1). So under either in-
terpretation of the subsection 5(c) ―unless‖ proviso, an employer
must ―risk criminal liability in order to pursue a good-faith coun-
terclaim.‖ Infra ¶ 76. Thus, the potential for such liability is no ba-
sis for favoring Utley‘s view; it is simply a strong disincentive for
an employer to advance a meritless claim of a right to withhold
wages.
                                  2
  ¶27 The structure of the UPWA does not support Utley‘s ap-
proach. As Utley indicates, other exceptions in subsection 5 may
be considered in resolving ambiguities in subsection 5(c). But the
terms of those exceptions cannot properly be read to impose a
temporal condition on the 5(c) exception.
  ¶28 Granted, the other subsection 5 exceptions appear to be
formulated in terms that may be satisfied before an employer‘s
withholding. UTAH CODE § 34-28-3(5)(a), (b), & (d) (providing ex-
ceptions for withholding under a court order or statute, an au-
thorization signed by an employee, and in accordance with an
approved retirement plan). But we cannot agree that these provi-
sions impose a similar restriction on subsection 5(c) under the
noscitur a sociis canon of construction. See infra ¶¶ 17–18.



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                        Opinion of the Court

  ¶29 First, semantic canons are not rigid rules of construction;
they are only presumptive principles of ordinary usage.6 Such
principles may easily be rebutted by contrary indications of statu-
tory meaning in context. And here we have a strong contrary in-
dication—in the indisputable fact that the proposed use of the
noscitur canon effectively eviscerates an entire provision of the
statute.7
  ¶30 Second, the noscitur canon is inherently dependent on a
threshold—and often subjective—judicial assessment of the
―‗common feature‘‖ of the terms from which the court attempts to
―‗extrapolate meaning.‘‖ Infra ¶ 68 (quoting Thayer v. Washington
Cnty. Sch. Dist., 2012 UT 31, ¶ 15, 285 P.3d 1142). And that element
sometimes renders this canon indeterminate, as where the rele-
vant ―common attribute‖ in question is open to debate. See Ali v.
Fed. Bureau of Prisons, 552 U.S. 214, 225–26 (2008) (rejecting the
utility of the noscitur canon on this basis).8 That is the case here.
  ¶31 On one hand, the common feature of the subsection 5 ex-
ceptions could be (as the dissent says) a matter of timing. Infra
¶ 70 (asserting that the other exceptions in section 5 ―permit a
withholding only if the employer receives some form of authori-


 6  See Thayer v. Washington Cnty. Sch. Dist., 2012 UT 31, ¶ 37, 285
P.3d 1142 (Lee, J., dissenting) (noting that ―[c]anons of construc-
tion are not universal rules of grammar or syntax,‖ but ―rules of
thumb that provide potentially useful cues for resolving ambigui-
ty in written text‖).
 7  See id. (―[A] recognized exception to the noscitur principle
acknowledges that a term of broad application should not be nar-
rowed by its neighboring text when its broad meaning is clear.‖)
(emphasis in original); Russell Motor Car Co. v. United States, 261
U.S. 514, 519 (1923) (holding that noscitur a sociis is ―not an invari-
able rule, for [a] word may have a character of its own not to be
submerged by its association‖).
 8  See also Yates v. United States, 135 S. Ct. 1074, 1098 (2015) (Ka-
gan, J., dissenting) (noting that the noscitur canon can be manipu-
lated to ―switch on and off whenever convenient‖ in selecting a
common feature that ties a group of words together).


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                   UTLEY v. MILL MAN STEEL, INC.
                       Opinion of the Court

zation before the withholding takes place‖). But that is not the only
way to think of the items in the list. Another is to note that each of
the exceptions is framed in a manner facilitating the employer‘s
decision to withhold in the limited time available prior to termina-
tion. Thus, to withhold amounts dictated by state or federal law,
by court order, or as agreed to by the employee, the employer has
all the information it needs at the time of termination. But that
does not hold for a withholding based on ―evidence that in the
opinion of a hearing officer or an administrative law judge would
warrant an offset.‖ UTAH CODE § 34-28-3(5)(c). The authority to
withhold on that basis necessarily requires subsequent develop-
ments—the filing of a legal claim, and the acquisition of the ―opin-
ion‖ of a judge that the evidence ―warrant[s] an offset.‖ Id.
   ¶32 The noscitur canon cannot tell us which of these common
features is more significant. Yet the statute itself does. It does so
by including subsection 5(c) as a separate, viable withholding ex-
ception. We credit that clear indication of statutory meaning over
the vague assertion that the noscitur canon requires us to override
it.
  ¶33 In so doing, we reject Utley‘s insistence (echoed repeatedly
by the dissent) that our conclusion flies in the face of the ―central
purpose of the UPWA—to ensure the prompt payment of earned
wages.‖ Infra ¶ 45.9 That is certainly a purpose of the statute. But
we find no basis for concluding that this was the legislature‘s only
purpose, or that it sought to vindicate this ―central purpose‖ at
the expense of all other concerns.
  ¶34 As we have emphasized frequently, ―[l]egislation is rarely
aimed at advancing a single objective at the expense of all others.‖
Myers v. Myers, 2011 UT 65, ¶ 27, 266 P.3d 806. ―More often, stat-
utes are a result of a legislative give-and-take that balances multi-

 9  See also infra ¶ 45 (asserting that our conclusion ―frustrates the
central purpose of the UPWA‖); ¶ 65 (―the majority turns the es-
sential purpose of the statute on its head‖); ¶ 66 (referring to the
―central concern animating the UPWA‖); ¶ 69 (―The statute‘s cen-
tral purpose is to require employers to promptly pay wages un-
less they can justify nonpayment.‖); ¶ 74 (―[T]he Act‘s central
purpose is to assure that employees receive prompt payment of
earned wages.‖).


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                       Opinion of the Court

ple concerns.‖ Id.10 Here the relevant concerns encompass the em-
ployer‘s interest in withholding wages under the exceptions set
forth in section 5. We must account for that purpose as well, for it
is as much expressed in the statute‘s text as is the purpose of en-
suring timely payment of wages to employees See Graves v. Ne.
Servs., Inc., 2015 UT 28, ¶ 67, 345 P.3d 619 (―[T]he governing law is
defined not by our abstract sense of legislative purpose, but by the
statutory text that survived the constitutional process of bicamer-
alism and presentment.‖). We reject Utley‘s view of the subsection
5(c) exception because it elevates the purpose of protecting em-
ployees in a manner that effectively nullifies the employer‘s right
to withhold in circumstances warranting an offset.
                                 B
  ¶35 Utley also contends that the subsection 5(c) exception was
not available in this proceeding because the district court judge
lacked the statutory authority to implement it. The exception re-
quires an ―opinion of a hearing officer or an administrative law
judge‖     regarding      the     viability   of    an      offset.
UTAH CODE § 34-28-3(5)(c). And because in Utley‘s view a district
court judge is neither a ―hearing officer‖ nor an ―administrative
law judge,‖ the exception could not be invoked in a case like this
one.
  ¶36 Utley‘s argument has some facial plausibility in the text of
the statute. Certainly a district court judge is not an ―administra-
tive law judge.‖ And ―hearing officer,‖ if read in isolation, might
more naturally be understood to have reference to an officer pre-


 10 See also McArthur v. State Farm Mut. Auto. Ins. Co., 2012 UT 22,
¶ 14, 274 P.3d 981 (recognizing that ―most all‖ statutory provi-
sions ―represent an attempt by the legislature to balance compet-
ing policy considerations, not to advanc[e] a single objective at the
expense of all others‖ (alteration in original) (internal quotation
marks omitted)); Olsen v. Eagle Mountain City, 2011 UT 10,
¶ 23 & n.6, 248 P.3d 465 (noting ―the peril of interpreting statutes
in accordance with presumed legislative purpose,‖ while empha-
sizing that ―most statutes represent a compromise of purposes
advanced by competing interest groups, not an unmitigated at-
tempt to stamp out a particular evil‖).


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                   UTLEY v. MILL MAN STEEL, INC.
                        Opinion of the Court

siding over an administrative proceeding. See BLACK‘S LAW
DICTIONARY 790 (9th ed. 2009) (providing ―administrative-law
judge‖ as one definition of ―hearing officer‖).
  ¶37 That said, we do not interpret the terms of statutory provi-
sions in isolation. We read them in context. Olsen v. Eagle Moun-
tain City, 2011 UT 10, ¶ 9, 248 P.3d 465. The relevant context,
moreover, must include an understanding of the structure and
purpose of the statute. Id. And here that context persuades us to
construe the statutory reference to ―hearing officer‖ to encompass
district court judges. We reach that conclusion (a) because it is a
linguistically plausible reading of the text of the statute and (b)
because a contrary reading would lead to absurd results that can-
not have been intended by the legislature.
  ¶38 There is a sense in which a district court judge can be
thought of as a ―hearing officer.‖ We regularly refer to judges as
―judicial officers.‖11 And of course a typical responsibility of such
an officer is to preside over hearings. It is not unheard of, moreo-
ver, for the law to use the terminology of ―hearing officer‖ in a
manner encompassing district judges.12

 11  See, e.g., UTAH CONST. art. VI, § 19 (―Judicial officers shall be
liable to impeachment for high crimes, misdemeanors, or malfea-
sance in office. . . .‖); UTAH CODE § 20A–1–102(38) (defining ―judi-
cial officer‖ for purposes of the election code as ―any justice or
judge of a court of record or any county court judge‖); id. § 78A–
2–218 (listing powers of ―[e]very judicial officer‖); State v. Deherre-
ra, 965 P.2d 501, 505 (Utah Ct. App. 1998) (―[T]he judge approving
the plan, as a judicial officer, had an obligation to examine the en-
tire plan in terms of the statutory requirements.‖).
 12  See State v. Orr, 2005 UT 92, ¶ 20, 127 P.3d 1213 (implicitly
characterizing district court judges as ―hearing officers,‖ in the
context of a determination that a district judge satisfies the due
process requirements for a probation modification proceeding
under Gagnon v. Scarpelli, 411 U.S. 778 (1973)—requirements in-
cluding the ―right to confront and cross-examine adverse witness-
es[,] unless the hearing officer specifically finds good cause for not
allowing confrontation‖ (emphasis added) (internal quotation
marks omitted). While the ―hearing officer‖ in a parole revocation
proceeding may be an appointee of an administrative agency,
                                                        (continued . . .)

                                   13
                          Cite as: 2015 UT 75
                        Opinion of the Court

  ¶39 We concede that this is not the most common use of the
term ―hearing officer.‖ That phrase is used as a term of art in ad-
ministrative law. And in that field, ―hearing officer‖ is often un-
derstood to refer to an agency-appointed official who presides
over an administrative hearing.13 We reject that interpretation
here, however, because it would nullify the subsection 5(c) excep-
tion—by producing absurdities that could not have been intended
by the legislature.14


probation modification or revocation proceedings take place in
Utah only in district court. UTAH CODE § 77-27-5(1)(a) (granting
Board of Pardons and Parole authority to handle parole matters,
but not probation matters). In this context our Utah cases have
used the terminology of ―hearing officer‖ in a manner implicitly
encompassing district judges. See Morishita v. Morris, 621 P.2d 691,
694 (Utah 1980) (Wilkins, J., dissenting); State v. Tate, 1999 UT App
302, ¶¶ 10–12, 989 P.2d 73; Layton City v. Peronek, 803 P.2d 1294,
1299 (Utah Ct. App. 1990); State v. Hodges, 798 P.2d 270, 273 (Utah
Ct. App. 1990). And that is a perfectly acceptable, though not the
most common, way of using that phrase.
 13  See UTAH ADMIN. CODE R610-3-2(G). But see Hughes Gen. Con-
tractors, Inc. v. Utah Labor Comm’n, 2014 UT 3, ¶ 25, 322 P.3d 712
(holding that Utah courts do not defer to administrative agency
interpretations of statutes).
 14  The dissent rightly distinguishes the ―absurd consequences
canon‖ from the ―absurdity doctrine.‖ Infra ¶ 47. As the dissent
notes, the latter—involving judicial construction of a statute that
overrides the ―plain meaning‖ of its text—is ―‗strong medicine,
not to be administered lightly.‘‖ Infra ¶ 48 (quoting Cox v. Laycock,
2015 UT 20, ¶ 71, 345 P.3d 689 (Lee, J., concurring)). But this doc-
trine is limited to cases where the legislative text is unmistakably
clear, or in other words where ―there is no sense of a provision—
no permissible meaning—that can eliminate an absurdity unless
the court fixes a textual error.‖ ANTONIN SCALIA & BRYAN A.
GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 234
(2012) (citing the example of a ―provision in a statute creating a
new claim by saying that ‗the winning party must pay the other
side‘s reasonable attorney‘s fees‖), id. at 235; see also, e.g., Cer-
                                                        (continued . . .)

                                   14
                   UTLEY v. MILL MAN STEEL, INC.
                        Opinion of the Court

  ¶40 Utley‘s reading would render subsection 5(c) void for
claims of $10,000 or more. Such high value claims must be
brought in district court. See UTAH CODE § 34-28-9(1)(d). Thus,
under the administrative law notion of ―hearing officer,‖ an em-
ployer facing claims for unpaid wages of $10,000 or more would
be legally prohibited from withholding wages on the basis of an


nauskus v. Fletcher, 201 S.W.2d 999, 1000 (Ark. 1947) (refusing to
read literally a provision which read ―[a]ll laws and parts of laws,
and particularly Act 311 of the Acts of 1941, are hereby repealed‖
because ―[n]o doubt the legislature meant to repeal all laws in
conflict with that act, and, by error of the author or the typist, left
out the usual words ‗in conflict herewith,‘ which we will imply by
necessary construction‖). And we do not view this case as falling
into this category. The better reading of the literal text, read in iso-
lation, would be to exclude judicial proceedings before a district
court judge. But this is not a case where ―there is no sense‖ of sub-
section 5(c)—―no permissible meaning‖—that can encompass a
district judge. Here there is at least a degree of ambiguity, so the
question is not one of overriding text that is unmistakably clear.
See infra ¶ 57 (implicitly acknowledging at least an ―obscure un-
derstanding of ‗hearing officer‘‖ encompassing district judges).
For that reason we view this as a case for the absurd consequences
canon, not the absurdity doctrine.
  This is not a case, in other words, where the absurdity is so
strong that we would override unmistakably clear language con-
tradicting it. If the legislature had expressly limited the subsection
5(c) exception to ―cases filed in an administrative proceeding only,
and not those filed in the district court,‖ we would follow the
statutory text. Such a statute would be strange, for all of the rea-
sons noted above, but not so absurd that we could override the
clear terms the legislature enacted into law.
  That said, our position is not far from that of the dissent. We
recognize that our construction of ―hearing officer‖ is not the or-
dinary or term-of-art sense of the term. See infra ¶ 60. We empha-
size, moreover, that we do not depart from the more natural sense
of the statutory text lightly; we do so only in light of a strong con-
viction that that sense of the statute would yield consequences
that are so troubling that we cannot reasonably attribute them to
the legislature.


                                  15
                        Cite as: 2015 UT 75
                       Opinion of the Court

offset. We can think of no rational basis for the legislature to
adopt such a restriction on an employer‘s right to an offset. If any-
thing, an offset would seem to be more important—and more like-
ly—in a case of a high value wage claim. It would be oddly per-
verse for the legislature to foreclose the employer‘s right to with-
hold under 5(c) in the cases where that right would be most im-
portant.
  ¶41 The administrative law notion of ―hearing officer‖ would
leave open the possibility of an offset in a UPWA case for wages
under $10,000. But a strategic employee facing a threat of an offset
could block the offset by filing in district court—an option availa-
ble by statute. Id. § 34-28-9-(1)(a)(iii). So even for lower value
claims the subsection 5(c) exception would be a practical dead let-
ter.
  ¶42 These problems persuade us that the legislature could not
have intended to limit ―hearing officer‖ to its narrow meaning in
administrative law. In the absence of some rational basis for the
legislature to limit an employer‘s right of offset to lower value
claims where the employee fails to file in district court, we con-
clude that the legislature must have employed ―hearing officer‖ in
its broader sense encompassing district judges.




                                 16
                  UTLEY v. MILL MAN STEEL, INC.
         C.J. DURRANT, concurring in part and dissenting



                                 III
For the above reasons we reverse the entry of summary judgment
in Utley‘s favor and remand for further proceedings in the district
court. Such proceedings, among other things, may be addressed
to the determination whether Mill Man has presented evidence
that in the opinion of the district court ―would warrant an offset‖
sufficient to justify Mill Man‘s withholding of Utley‘s un-
paid commission.
                          ———————

   CHIEF JUSTICE DURRANT, concurring in part as to Part II.B of
ASSOCIATE JUSTICE LEE‘s opinion and dissenting as to Part II.A:
  ¶43 This case presents us with two questions: (1) whether the
legislature intended to mean ―district court judge‖ when it used
the term ―hearing officer‖ in the UPWA, and (2) whether an em-
ployer may unilaterally withhold wages without first seeking au-
thorization from an administrative law judge or a hearing officer.
  ¶44 As to the first question, we conclude that the term ―hearing
officer‖ is unambiguous and does not encompass ―district court
judge.‖ But because interpreting the statute in that manner leads
to results so patently absurd no reasonable legislator could have
intended them, we reform the statute under the absurdity doc-
trine to read ―hearing officer, administrative law judge, or district
court judge.‖ The lead opinion reaches the same result on this is-
sue, but does so by concluding that the term ―hearing officer‖ is
ambiguous and applying the absurd consequences canon to read
―hearing officer‖ as including district court judges. We reject this
interpretive approach, however, because it risks allowing future
courts to inject policy concerns into an analysis that should and
has traditionally focused on the terms of the statute.
  ¶45 As to the second point, however, I dissent from the majori-
ty‘s conclusion that the UPWA allows an employer to unilaterally
withhold wages without first obtaining authorization to do so
from an administrative law judge, a hearing officer, or a district
court judge. The majority‘s reading is inconsistent with the text
and structure of the statute and frustrates the central purpose of
the UPWA, which is to ensure that employees receive prompt


                                 17
                            Cite as: 2015 UT 75
              C.J. DURRANT, concurring in part and dissenting

payment of earned wages. The majority effectively gives an em-
ployer a lien in the form of withheld earned wages to secure any
counterclaims it has against the employee. In my view, this is not
what the legislature intended. Accordingly, I respectfully dissent.
I would affirm the district court‘s decision and hold that the plain
meaning and structure of the statute require a preliminary proffer
of evidence warranting an offset before an employer withholds
earned wages, not after.
I. Applying the Plain and Technical Meaning of ―Hearing Officer‖
                     Leads to Absurd Results
  ¶46 Our caselaw recognizes two different interpretive tools
concerning absurdity. We have referred to the first as the absurd
consequences canon15 and to the second as the absurdity doc-
trine.16 We apply the absurd consequences canon to resolve ambi-
guities in a statute.17 If statutory language lends itself to two al-
ternative readings, we choose the reading that avoids absurd con-
sequences.18 The absurdity doctrine, by contrast, has nothing to do
with resolving ambiguities. Rather, we apply this canon to reform
unambiguous statutory language where applying the plain lan-




   15 See State v. Redd, 1999 UT 108, ¶ 12, 992 P.2d 986 (―Where we
are faced with two alternative readings, and we have no reliable
sources that clearly fix the legislative purpose, . . . . we interpret
[the] statute to avoid absurd consequences.‖)
   16See Cox v. Laycock, 2015 UT 20, ¶¶ 71–73, 345 P.3d 689 (Lee, J.,
concurring) (noting that under ―the doctrine of absurdity,‖ we
depart from the plain language of a statute if interpreting the text
as written leads to a result ―so overwhelmingly absurd that no ra-
tional legislator could ever be deemed to have supported a literal
application of its text‖).
   17 See Encon Utah, LLC v. Fluor Ames Kraemer, LLC, 2009 UT 7,
¶ 73, 210 P.3d 263 (―When statutory language plausibly presents
the court with two alternative readings, we prefer the reading that
avoids absurd results.‖ (internal quotation marks omitted)).
   18   Id.


                                    18
                      UTLEY v. MILL MAN STEEL, INC.
            C.J. DURRANT, concurring in part and dissenting

guage leads to results so overwhelmingly absurd no rational legis-
lator could have intended them.19
  ¶47 It is important that we carefully distinguish between the
absurd consequences canon and the absurdity doctrine because
the invocation of the latter is a far more momentous step than is
the invocation of the former, and therefore requires a more com-
pelling justification. In applying the absurd consequences canon,
we merely resolve an ambiguity by choosing ―the reading that
avoids absurd results‖ when ―statutory language plausibly pre-
sents [us] with two alternative readings.‖20 By contrast, when we
apply the absurdity doctrine, rather than simply preferring one
plausible reading over another, we interpret the statute ―contrary‖
to its plain meaning.21
  ¶48 This is a drastic step, one we have described as ―strong
medicine, not to be administered lightly.‖22 Accordingly, we ap-
ply the absurdity doctrine with more caution than we do the ab-
surd consequences canon.23 This is because when a statute is am-
biguous, we are uncertain which reading of the statute the legisla-
ture intended, so we presume they intended the reading that
leads to the more practical outcome. But when a statute is unam-
biguous, the statutory language is almost always irrefutable evi-
dence of the legislature‘s intent, even if it leads to results we re-
gard as impractical or ill-advised. So to override the plain lan-
guage under the absurdity doctrine, the operation of the plain
language must be more than improvident, it must be so over-




   19 See State ex rel. Z.C., 2007 UT 54, ¶¶ 11–13, 165 P.3d 1206; see
also Cox, 2015 UT 20, ¶ 71 (Lee, J., concurring).
   20Encon Utah, LLC, 2009 UT 7, ¶ 73, (internal quotation marks
omitted); see also Cox, 2015 UT 20, ¶ 71 (Lee, J., concurring).
   21   State ex rel. Z.C., 2007 UT 54, ¶ 15 n.5.
   22   Cox, 2015 UT 20, ¶ 71 (Lee, J., concurring).
   23 State ex rel. Z.C., 2007 UT 54, ¶ 15 n.5 (noting that the absurd
consequences doctrine ―does not necessitate the same level of cau-
tion‖ as the absurdity doctrine).


                                     19
                         Cite as: 2015 UT 75
         C.J. DURRANT, concurring in part and dissenting

whelmingly absurd that no rational legislator could have intend-
ed the statute to operate in such a manner.24
  ¶49 It is therefore critical that we be exacting in our ambiguity
analysis. Because deeming a word to be ambiguous opens the
door to application of the absurd consequences canon, with the
less compelling showing it requires, doing so too liberally risks
allowing future courts to inject policy views into statutes where
their meaning should be controlled by their plain terms. Here, the
term ―hearing officer‖ as used in the UPWA is, under our tradi-
tional rules of statutory construction, so clearly unambiguous that
to deem it otherwise creates such a risk.
  ¶50 In the case before us, both the absurd consequences canon
and the absurdity doctrine are satisfied, so our disagreement with
the lead opinion on whether ―hearing officer‖ is ambiguous is of
no consequence. But in other cases the question of whether a stat-
ute is ambiguous, and therefore whether the absurd consequences
canon or the absurdity doctrine applies, may be determinative. So
it is critical that we carefully distinguish between the two doc-
trines. For this reason, although we reach the same result as the
lead opinion on this question, we deem the term ―hearing officer‖
to unambiguously not include district court judges, but under the
absurdity doctrine, we nevertheless reform the statute to include
them.
        A. The Legislature Did Not Intend “Hearing Officer” to
                      Mean District Court Judge
  ¶51 To withhold earned wages under subsection 5(c), an em-
ployer must ―present[] evidence‖ to ―a hearing officer or an ad-
ministrative law judge‖ that ―would warrant an offset.‖25 In con-
cluding that the term ―hearing officer‖ is ambiguous, the lead


   24See id. ¶ 12; see also Marion Energy, Inc. v. KFJ Ranch P’ship,
2011 UT 50, ¶¶ 69–70, 267 P.3d 863 (Lee, J., dissenting) (discussing
the differences between the absurd consequences canon and the
absurdity doctrine).
   25 UTAH CODE § 34-28-3(5)(c). The UPWA was amended effec-
tive May 2014, but we refer throughout our opinion to the 2013
version of the statute, which is identical to the version in effect at
the time of Mill Man‘s withholding.


                                 20
                      UTLEY v. MILL MAN STEEL, INC.
           C.J. DURRANT, concurring in part and dissenting

opinion begins by noting that we ―regularly refer to judges as ‗ju-
dicial officers‘‖ and that ―a typical responsibility of such an officer
is to preside over hearings.‖26 While conceding that district court
judge ―is not the most common use of the term ‗hearing officer‘‖
and that the term has taken on specialized meaning in the context
of administrative law, the lead opinion nevertheless concludes
that ―the legislature must have employed‖ this ―broader sense‖ of
the term to ―encompass[] district court judges,‖27 because holding
otherwise would effectively ―render subsection 5(c) void for
claims of $10,000 or more.‖28
  ¶52 As we have discussed, the absurd consequences canon is
intended to operate as a tie-breaker when a statute‘s plain text
lends itself to two plausible alternative readings.29 That is not the
case here, because the term ―hearing officer‖ in the UPWA does
not lend itself to two plausible interpretations. When interpreting
a statute, our primary goal is to ascertain the intent of the legisla-
ture.30 And in performing that task, we first consult the ―ordinary,
and commonly understood meaning‖31 of the statute‘s terms, of-
ten referring to dictionary definitions.32 But when the legislature
―borrows terms of art‖33 that have accumulated a specialized,
technical meaning, we ―explain them by reference to the art or sci-




   26   Supra ¶ 38.
   27   Supra ¶¶ 39, 42.
   28   Supra ¶ 40.
   29See, e.g., State v. Redd, 1999 UT 108, ¶¶ 12–14 (interpreting a
criminal statute that could be ―read in two ways‖ to avoid conse-
quences the court regarded as ―absurd‖).
   30   Marion Energy, Inc., 2011 UT 50, ¶ 14.
   31 Wasatch County v. Okelberry, 2008 UT 10, ¶ 13, 179 P.3d 768
(internal quotation marks omitted).
   32Hi-Country Prop. Rights Grp. v. Emmer, 2013 UT 33, ¶¶ 18–19,
304 P.3d 851.
   33Maxfield v. Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647 (internal
quotation marks omitted).


                                   21
                            Cite as: 2015 UT 75
            C.J. DURRANT, concurring in part and dissenting

ence to which they [are] appropriate.‖34 Normally, when these
sources show ―the language of a statute is clear and unambigu-
ous, our analysis ends; our duty is to give effect to that plain
meaning.‖35 Here, however, the lead opinion determines that the
term ―hearing officer‖ is ambiguous even though its proffered al-
ternative reading finds no support in either the ordinary meaning
of the term or the specialized meaning it has acquired in the con-
text of administrative law.
  ¶53 With respect to ordinary meaning, dictionary definitions of
―hearing officer‖ do not include ―district court judge.‖36 Black‘s
Law Dictionary offers two definitions for the term ―hearing of-
ficer.‖ The one listed first is ―administrative-law judge.‖37 The se-
cond is ―[a] person, usu[ally] an attorney, who serves in an ap-
pointive capacity at the pleasure of an appointing judge, and
whose actions and decisions are reviewed by that judge.‖38 Be-
cause a district court judge is not an ―administrative-law judge‖
and does not ―serve[] in an appointive capacity at the pleasure of



   34 Corning Glass Works v. Brennan, 417 U.S. 188, 201 (1974) (al-
teration in original) (internal quotation marks omitted); see also Hi-
Country Prop. Rights Grp., 2013 UT 33, ¶ 18 (―Because that term is
not expressly defined in the Act, and does not appear to be a
technical term of art, we construe it to partake of the ordinary
meaning the word would have to a reasonable person familiar
with the usage and context of the language in question.‖ (internal
quotation marks omitted)).
   35   State ex rel. Z.C., 2007 UT 54, ¶ 11.
   36See State v. Canton, 2013 UT 44, ¶ 13, 308 P.3d 517 (―In deter-
mining the ordinary meaning of nontechnical terms of a statute,
our starting point is the dictionary.‖ (internal quotation marks
omitted)).
   37   BLACK‘S LAW DICTIONARY 790 (9th ed. 2009).
   38 Id. (referring to the third definition of ―judicial officer‖ as
another definition for hearing officer); id. at 1193 (defining ―judi-
cial officer‖ as ―[a] person, usu. an attorney, who serves in an ap-
pointive capacity at the pleasure of an appointing judge, and
whose actions and decisions are reviewed by that judge‖).


                                     22
                   UTLEY v. MILL MAN STEEL, INC.
           C.J. DURRANT, concurring in part and dissenting

an appointing judge,‖ a district court judge does not fall within
the dictionary definition of ―hearing officer.‖39
  ¶54 The term ―hearing officer‖ has also acquired specialized
meaning in the context of administrative law, and that technical
definition does not encompass district court judges either. When
the legislature employs technical terms that have accumulated
specialized meaning in a particular field, we presume it ―knows
and adopts the cluster of ideas that were attached to each bor-
rowed word in the body of learning from which it was taken.‖40
The term ―hearing officer‖ has a well-accepted meaning in the
administrative-law context and is consistently used by the legisla-
ture to mean an officer within an agency. For example, the Utah
health code,41 the state system of public education code,42 the in-
surance code,43 and the municipal code44 all provide instances
where the applicable agency or governing board appoints or se-
lects a ―hearing officer‖ to take evidence, make preliminary find-
ings, or hear grievances. In each of these cases, there is no argu-
ment that ―hearing officer‖ was intended to be used interchange-


   39 Webster‘s Third New International Dictionary provides a
similar definition, referring to an individual in appointed or re-
viewable capacity that is empowered to investigate, commence
claims, make findings, and make recommendations to the agency.
WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY 1044 (1961).
   40   Maxfield, 2012 UT 44, ¶ 31 (internal quotation marks omit-
ted).
   41UTAH CODE § 26-8a-407(3) (providing that a ―hearing officer‖
shall preside over formal adjudicative proceedings involving
ground ambulance and paramedic licenses).
   42Id. § 53A-6-602(1) (providing that a ―hearing officer‖ may be
appointed to conduct a hearing and make recommendations con-
cerning findings).
   43Id. § 31A-2-301(1) (providing that the Commissioner of In-
surance may appoint a ―hearing officer‖ to assist in proceedings
before the Commissioner).
   44Id. § 10-3-1106(2)(a) (providing that municipal employees
may appeal a final decision to discharge to a ―hearing officer‖).


                                 23
                           Cite as: 2015 UT 75
            C.J. DURRANT, concurring in part and dissenting

ably with ―district court judge.‖ And we are unaware of any stat-
utes that employ the term ―hearing officer‖ to mean district court
judge.
  ¶55 Instead of grounding its interpretation of ―hearing officer‖
in either the plain meaning or specialized use of that term, the
lead opinion cites a number of cases dealing with probation revo-
cation proceedings and concludes that it is ―not unheard of . . . to
use the terminology of ‗hearing officer‘‖ to encompass ―district
judges.‖45 And the lead opinion argues that in a number of prior
cases, we ―have used‖ the term hearing officer ―in a manner im-
plicitly encompassing district judges.‖46 Reliance on these cases is
misplaced for two reasons: (1) they tell us little about what the
legislature intended when it drafted the UPWA, and (2) the lead
opinion over reads the scope of our holdings in those cases.
  ¶56 In State v. Orr,47 we applied U.S. Supreme Court precedent
to the question of whether a district court can properly extend a
defendant‘s probation if the defendant ―did not receive notice that
the State intended to extend [the defendant‘s] probation until after
his probation was set to expire.‖48 In holding that a district court
could extend probation under such circumstances, we applied
Gagnon v. Scarpelli,49 which provides that one of the ―minimum
requirements‖ of due process to which a probationer is entitled is
―‗the right to confront and cross-examine adverse witnesses (un-
less the hearing officer specifically finds good cause for not allow-
ing confrontation).‘‖50 The lead opinion focuses on our use of the
term ―hearing officer‖ and concludes that we implicitly character-




   45   See supra ¶ 38.
   46   Supra ¶ 37 n.11.
   47   2005 UT 92, 127 P.3d 1213.
   48   Id. ¶ 10.
   49   411 U.S. 778 (1973).
   50 Orr, 2005 UT 92, ¶ 20 (emphasis added) (quoting Gagnon, 411
U.S. at 786).


                                     24
                     UTLEY v. MILL MAN STEEL, INC.
            C.J. DURRANT, concurring in part and dissenting

ized district court judges as hearing officers in Orr and four other
decisions addressing the same issue.51
  ¶57 First, even accepting the lead opinion‘s reading of these
cases, the central focus of our inquiry in the case at hand is not
what this court has meant in using the term ―hearing officer‖ in
the context of criminal procedure. It is what the legislature intend-
ed when it used that term in the UPWA.52 And we cannot accept
that the legislature looked past the dictionary definition of the
term and its well-accepted technical meaning in order to codify a
more obscure understanding of ―hearing officer‖ that, as we ex-
plain below, we at best tacitly acknowledged in the context of
probation revocation proceedings.
  ¶58 Second, the lead opinion over reads these cases. It argues
that we ―used the terminology of ‗hearing officer‘ in a manner
implicitly encompassing district judges,‖53 but a closer reading of
each case forecloses even that conclusion. Some states, like Utah
and Missouri, hold revocation proceedings primarily in district
court.54 But others, like Wisconsin and Iowa, hold probation revo-
cation proceedings before an agency.55 The Supreme Court in
Gagnon used the term ―hearing officer‖ because that case involved
an appeal from an administrative probation revocation proceed-
ing in Wisconsin,56 and it quoted language from Morrisey v. Brew-


   51 Supra ¶¶ 37–38 & n.11; see Morishita v. Morris, 621 P.2d 691,
694 (Utah 1980) (Wilkins, J., dissenting); State v. Tate, 1999 UT App
302, ¶¶ 10–12, 989 P.2d 73; Layton City v. Peronek, 803 P.2d 1294,
1299 (Utah Ct. App. 1990); State v. Hodges, 798 P.2d 270, 273 (Utah
Ct. App. 1990).
   52   See Marion Energy, Inc., 2011 UT 50, ¶ 14.
   53   See supra ¶ 38 n.12.
   54 See Morishita, 621 P.2d at 692–93; see also MO. REV. STAT.
§ 559.036 (2015).
   55 See State ex rel. Vanderbeke v. Endicott, 563 N.W.2d 883, 889
(Wis. 1997); see also IOWA CODE § 908.4(1) (2015) (―The parole revo-
cation hearing shall be conducted by an administrative parole
judge who is an attorney.‖).
   56   See Gagnon, 411 U.S. at 779, 786.


                                    25
                           Cite as: 2015 UT 75
            C.J. DURRANT, concurring in part and dissenting

er, an administrative probation revocation case from Iowa.57 But
when deciding whether a probationer from Missouri had been af-
forded due process in his revocation hearing before a state court,
the Supreme Court used the word ―judge.‖58 And tellingly, the
only use of the term ―hearing officer‖ in any of the Utah cases the
lead opinion cites appears in direct quotes from Gagnon; we refer
to judges as ―trial court,‖ ―court,‖ ―district court,‖ and ―district
judge‖ elsewhere in those decisions.
  ¶59 By quoting the U.S. Supreme Court‘s precedent character-
izing administrative officials from Iowa and Wisconsin who pre-
side over probation revocation proceedings as ―hearing officers,‖
we may have tacitly acknowledged that some states employ judg-
es and other states employ agency officials to perform the same
task in this narrow context. But we did not analyze the plain
meaning of ―hearing officer‖ in any of those cases, nor did we de-
cide what that term meant in the context of administrative law. So
this line of cases has little to say about how we should interpret
the legislature‘s use of that term in the UPWA.
  ¶60 In sum, neither the ordinary nor the technical meaning of
the term ―hearing officer‖ plausibly includes district court judges.
Rather, all the relevant sources—dictionary definitions, special-
ized use, and definitions of that term in other administrative law
statutes—indicate that the term means a person appointed by an
administrative law judge to conduct investigations, process
claims, hold hearings, and assess penalties. Therefore, the lead
opinion errs in relying upon the absurd consequences canon be-
cause the term ―hearing officer‖ unambiguously does not include
district court judge. So although, as we explain below, we agree
that this reading of the statute leads to absurd results, we decline
to adopt the lead opinion‘s reasoning, because we believe doing
so risks allowing future courts to inject policy considerations into


   57   Id. at 786 (quoting Morrissey, 408 U.S. at 489).
   58  See Black v. Romano, 471 U.S. 606, 615–16 (1985) (explaining
that the ―decision to revoke‖ a Missouri defendant‘s ―probation
satisfied the requirements of due process‖ because ―he had a full
opportunity to present mitigating factors to the sentencing judge
and to propose alternatives to incarceration‖).


                                    26
                      UTLEY v. MILL MAN STEEL, INC.
            C.J. DURRANT, concurring in part and dissenting

an analysis that should be focused exclusively on the terms of the
statute.
B. Failing to Read “Hearing Officer” to Include “District Court Judge”
                       Leads to Absurd Results
  ¶61 Although we disagree with the lead opinion‘s interpretive
approach, we understand, and indeed we share, its motivation. As
the lead opinion points out, an employee can bring a withholding
claim under $10,000 before the Commission or a district court, and
claims exceeding that threshold may only be brought in district
court. But there is no clear procedural mechanism outlined in the
statute or the Commission‘s regulations directing employers as to
how they may secure ―the opinion‖ of a ―hearing officer‖ to sanc-
tion a withholding. The result is patently absurd: a district court
can hear any wage claim, but only the Commission can approve a
withholding, even though the Commission lacks jurisdiction to
even hear wage claims that exceed $10,000. In effect, then, the stat-
ute gives employers an opportunity to withhold as to small coun-
terclaims but denies them that same opportunity for claims em-
ployers are most likely to pursue—large counterclaims that ex-
ceed the $10,000 threshold.
  ¶62 We can think of no reason why withholding claims should
be treated this way, and the parties have not offered one. But ra-
ther than attempt to justify a conclusion that ―district court judge‖
is a permissible construction of ―hearing officer,‖ we conclude
that this was an oversight on the part of the legislature. No rea-
sonable legislator could have intended this inequitable, over-
whelmingly absurd result. ―Normally, where the language of a
statute is clear and unambiguous, our analysis ends; our duty is to
give effect to that plain meaning.‖59 But under the absurdity doc-
trine, ―a court should not follow the literal language of a statute if
its plain meaning works an absurd result.‖60 As we have noted,
we do not often employ this canon, with its required compelling
showing, because doing so runs the risk of substituting ―our
views of good policy for that of the legislature.‖61 For this canon


   59   State ex rel. Z.C., 2007 UT 54, ¶ 11.
   60   Id. (internal quotation marks omitted).
   61   Cox, 2015 UT 20, ¶ 71 (Lee, J., concurring).


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                            Cite as: 2015 UT 75
            C.J. DURRANT, concurring in part and dissenting

to apply, then, the plain language must lead to a result so over-
whelmingly absurd that no reasonable legislator could have in-
tended it.62
  ¶63 That standard is met in this case. The plain, unambiguous,
operation of the statutory language treats employers differently
based on the size of an employee‘s wage claim and the forum in
which the employee chooses to pursue it. And neither the statute,
the regulations, the trial court‘s ruling, nor Mr. Utley advances
any justification for such an inequity. Because we cannot believe
any rational legislator could have intended to treat withholding
claims in this manner, we reform the statute under the absurdity
doctrine to read ―hearing officer, administrative law judge, or dis-
trict court judge‖ and thereby permit district court judges the
same authority as hearing officers to approve a withholding made
under subsection 5(c). We therefore reach the same result as the
lead opinion, but base that result on a rationale we consider more
consistent with our traditional principles of statutory construc-
tion.
  II. The UPWA Does Not Allow for Preemptive Withholdings
  ¶64 Even though I ultimately agree with a majority of the Court
that district court judges should be able to approve a withholding
under subsection 5(c), I cannot agree with the majority‘s conclu-
sion allowing employers to preemptively withhold earned wages
so long as they convince a court to sanction the withholding after
the fact. This is not a dispute about whether Mr. Utley earned the
wages at issue. Mill Man concedes that he earned the commis-
sions he claims. Rather, it is a dispute over who will hold these
wages during the pendency of Mill Man‘s counterclaim. May Mill
Man hold them as a lien securing a potential judgment on its
counterclaim, or may Mr. Utley hold them subject to ultimately
disgorging them if Mill Man prevails on its counterclaim? The ma-
jority permits Mill Man to retain Mr. Utley‘s wages despite the
fact that the statute presumes that wages earned by an employee
will be promptly paid unless an employer satisfies its burden of
demonstrating the application of an exception.




   62   State ex rel. Z.C., 2007 UT 54, ¶ 13.


                                     28
                    UTLEY v. MILL MAN STEEL, INC.
           C.J. DURRANT, concurring in part and dissenting

  ¶65 In permitting the employer to preemptively withhold wag-
es without making any showing whatsoever, the majority turns
the essential purpose of the statute on its head. Rather than shift-
ing the financial risk of wage withholding to employers by requir-
ing them to establish an exception before withholding, the majori-
ty‘s reading of the statute allows the employer to withhold wages
that have admittedly been earned pending the resolution of the
employer‘s counterclaim.
  ¶66 I believe reading the statute in this manner is inconsistent
with its plain terms, our interpretive canons, and the central con-
cern animating the UPWA. And it also confers powerful settle-
ment leverage on the employer. In my view, this is not what the
legislature intended. Because Mill Man failed to present evidence
before an administrative law judge, a hearing officer, or a district
court judge prior to withholding Mr. Utley‘s wages, I would af-
firm the district court‘s summary judgment in Mr. Utley‘s favor.
  ¶67 To begin, the plain language and structure of the statute
strongly suggest subsection 5(c) does not permit preemptive
withholdings. Under that subsection, an employer cannot with-
hold wages ―unless . . . the employer presents evidence that in the
opinion of a hearing officer or administrative law judge would
warrant an offset.‖63 By using the term ―unless,‖ the statute condi-
tions the employer‘s ability to withhold on the presentation of ev-
idence.64 ―The word ‗unless‘ is a subordinating conjunction in
common usage, connecting a dependent or subordinate clause of a
sentence with the main or primary clause.‖ 65 Here, the subordi-
nate clause, or condition, is the employer‘s presentation of evi-
dence, and ―[u]nless the condition [is] met, there can be no [with-




   63   UTAH CODE § 34-28-3(5)(c) (emphasis added).
   64See WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY 2503
(1961) (defining ―unless‖ as ―except on the condition that,‖);
AMERICAN HERITAGE DICTIONARY 1402 (1980) (same).
   65Kansas City Structural Steel Co. v. L. G. Barcus & Sons, Inc., 535
P.2d 419, 423 (Kan. 1975).


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                          Cite as: 2015 UT 75
           C.J. DURRANT, concurring in part and dissenting

holding].‖66 In my view, this term requires an employer to present
evidence before it withholds wages, not after.
  ¶68 I recognize that the term ―unless‖ does not denote a tem-
poral restriction as clearly as other terms, such as ―until‖67 or ―be-
fore.‖68 Unlike the term ―hearing officer,‖ it is genuinely ambigu-
ous. That said, any ambiguity in the statute is resolved by apply-
ing basic principles of statutory construction. When interpreting a
statute, we do not read the ordinary meaning of its terms in isola-
tion; rather, we ―determine the meaning of the text given the rele-
vant context of the statute,‖ including ―the structure and language
of the statutory scheme.‖69 We also look to the terms surrounding
an ambiguous provision to see if they share ―a common feature
from which we may extrapolate meaning.‖70
  ¶69 These principles of statutory construction clarify any ambi-
guity in the term ―unless.‖ As used in subsection 5(c), it means
―before.‖ Moreover, the context and structure of the statute also
foreclose the majority‘s reading allowing preemptive withhold-
ings. The statute‘s central purpose is to require employers to




   66See Graham v. Wichita Terminal Elevator Co., 222 P. 89, 90 (Kan.
1924) (interpreting the term ―unless‖ in a similar context under
the Kansas Workmen‘s Compensation Act).
   67  WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY 2513
(1961) (noting that ―until‖ is ―used as a function word after a neg-
ative expression to indicate performance or occurrence at a speci-
fied time‖); AMERICAN HERITAGE DICTIONARY 1405 (1980) (defining
―until‖ as ―[u]p to the time of‖ and ―[b]efore a specified time‖).
   68 WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY 197 (1961)
(defining ―before‖ as ―preceding (a point, turn, or incident in
time),‖ as well as ―preceding (something or someone in a chrono-
logical series)); AMERICAN HERITAGE DICTIONARY 119 (1980) (defin-
ing ―before‖ as ―in front; ahead; in advance‖ and ―prior to‖).
   69   Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 12, 248 P.3d 465.
   70 Thayer v. Washington Cnty. Sch. Dist., 2012 UT 31, ¶ 15, 285
P.3d 1142.


                                   30
                      UTLEY v. MILL MAN STEEL, INC.
            C.J. DURRANT, concurring in part and dissenting

promptly pay wages unless they can justify nonpayment.71 It es-
tablishes a general rule requiring prompt payment of earned wag-
es in regular intervals and within twenty-four hours of termina-
tion.72 The statute also provides a remedy to employees who ha-
ven‘t been paid,73 and it imposes civil and criminal penalties on
employers who fail to comply.74 If an employer wishes to with-
hold wages that have been earned, it has the burden of establish-
ing an exception to the statute‘s general presumption that em-
ployees should be promptly paid.
  ¶70 There are four exceptions to the statutory presumption of
prompt payment that allow an employer to withhold admittedly
earned wages, and three of them unambiguously permit a with-
holding only if the employer receives some form of authorization
before the withholding takes place. For example, an employer may
withhold wages (1) under an express agreement from the employ-
ee; (2) under federal or state legal requirements, or a court order;75
or (3) ―as a contribution of the employee‖ to an established 401k




   71 See, e.g., UTAH CODE § 34-28-3(6) (―An employer may not re-
quire an employee to rebate, refund, offset, or return a part of the
wage, salary, or compensation to be paid to the employee except
as provided in Subsection (5).‖); id. § 34-28-5(1)(a) (providing that
wages for a terminated employee ―become due immediately‖ and
must be paid ―within 24 hours‖); id. § 34-28-5(1)(b)(i) (―In case of
failure to pay wages due an employee within 24 hours of written
demand, the wages of the employee shall continue from the date
of demand until paid, but in no event to exceed 60 days, at the
same rate that the employee received at the time of separation.‖);
id. § 34-28-9(2), (3) (imposing monetary penalties on employer‘s
who wrongfully withhold wages); id. § 34-28-12(1) (―Any employ-
er who shall violate, or fail to comply with any of the provisions
of this chapter shall be guilty of a misdemeanor.‖).
   72   See id. §§ 34-28-3, -5.
   73   See id. §§ 34-28-5(1)(b), 34-28-9(1).
   74   See id. §§ 34-28-5, 34-28-9(2)–(3), 34-28-12.
   75   Id. § 34-28-3(5)(a), (b).


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                           Cite as: 2015 UT 75
           C.J. DURRANT, concurring in part and dissenting

plan.76 The remaining exception is of course the one at issue
here—it allows a withholding if ―the employer presents evidence
that in the opinion of a hearing officer or an administrative law
judge would warrant an offset.‖77
  ¶71 Under the canon of noscitur a soccis (it is known for its as-
sociates),78 if several terms in a list share a common attribute, we
interpret other terms in the list in accordance with that common
feature.79 Because the withholding exceptions listed before and
after subsection 5(c) all ―share[] the same attribute‖ of being set or
agreed to before a withholding takes place, the structure of sub-
section 5 is strong evidence of a legislative intent that an employer
must also present evidence before withholding earned wages un-
der subsection 5(c).
 ¶72 This reading is also supported by the canon of consistent
usage, which provides that ―where a word has a clear and definite
meaning when used in one part of . . . a document, but not when
used in another, the presumption is that the word is intended to




   76 Section 34-28-3(5)(d)(i) allows an employer to withhold wag-
es ―as a contribution of the employee under a contract or plan that
is: described in Section 401(k) [of the United States Code].‖ But
before receiving 401(k) contributions from employees, an employ-
er must ensure that it establishes a ―qualified‖ 401(k) plan. See
MERTENS LAW OF FEDERAL INCOME TAXATION § 25B:10 (2014). For a
plan to be deemed ―qualified,‖ the employer must satisfy a series
of requirements, including having ―a definite, permanent (as dis-
tinguished from temporary) plan,‖ ―a written document,‖ and a
―plan established and maintained by an employer.‖ Id. Accord-
ingly, an employer could not withhold an employee‘s wages for
the purpose of contributing to a 401(k) plan unless the employer
had previously established a ―qualified‖ 401(k) plan.
   77   UTAH CODE § 34-28-3(5)(c).
   78   Turner v. Staker & Parson Cos., 2012 UT 30, ¶ 10 n.5, 284 P.3d
600.
   79   See Thayer, 2012 UT 31, ¶ 15.


                                     32
                    UTLEY v. MILL MAN STEEL, INC.
            C.J. DURRANT, concurring in part and dissenting

have the same meaning in the latter as in the former.‖80 We recent-
ly relied on this canon to interpret the term ―management‖ in the
Utah Governmental Immunity Act.81 In Barneck v. Utah Department
of Transportation, we were asked to determine whether the phrase
―management of flood waters‖ in the Act was limited to ―the
physical function of actively control[ling] and direct[ing] the flood
waters themselves‖ or also encompassed the decision to leave
flood waters undisturbed.82 We held that the broader definition
applied, relying on the canon of consistent usage.83 We observed
that the term management appeared in a series—―the manage-
ment of flood waters, earthquakes, or natural disasters‖—and the
―only way that government can manage those phenomena is in the
broad sense‖ of deciding how best to respond to them; after all,
―[o]ne cannot control or direct an earthquake or a tornado.‖84 And
―under the canon of consistent usage,‖ we concluded, ―manage-
ment cannot properly mean one thing as applied to two of the ob-
jects in a series (earthquakes and natural disasters) but something
else as applied to the other object in the same series (flood wa-
ters).‖85
  ¶73 The majority‘s reading of subsection 5(c) is inconsistent
with this canon. This is made clear when subsection 5 is viewed in
its entirety:
        (5) An employer may not withhold or divert part of
            an employee‘s wages unless:
               (a) the employer is required to withhold or
                   divert the wages by:
                      (i) court order; or


   80 ANTONIN SCALIA & BRYAN GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 170 (2012) (internal quotation
marks omitted).
   81   Barneck v. UDOT, 2015 UT 50, ¶ 30.
   82Id. ¶ 31 (alterations in original) (internal quotation marks
omitted).
   83   Id. ¶ 31.
   84   Id. (emphasis omitted) (internal quotation marks omitted).
   85   Id. (internal quotation marks omitted).


                                   33
                          Cite as: 2015 UT 75
           C.J. DURRANT, concurring in part and dissenting

                        (ii) state or federal law;
                (b) the employee expressly authorizes the de-
                    duction in writing;
                (c) the employer presents evidence that in the
                    opinion of a hearing officer or an adminis-
                    trative law judge would warrant an offset;
                    or
                (d) subject to Subsection (7), the employer
                    withholds or diverts the wages [for con-
                    tributions toward qualified retirement
                    plans]86
The majority acknowledges that the term ―unless‖ is ―sometimes
temporal‖87 and that ―the other subsection 5 exceptions appear to
be formulated in terms that may be satisfied before an employer‘s
withholding.‖88 But the word ―unless‖ is used just once in subsec-
tion 5. It is not even repeated before each exception. To me, this is
the canon of consistent usage squared. It would be odd indeed for
the legislature to intend a single word to have a different meaning
as applied to subsection (c) than it has as applied to subsections
(a), (b), and (d). Yet by allowing employers to preemptively with-
hold wages and then ―present evidence‖ warranting an offset, that
is precisely what the majority does. Its reading is therefore incon-
sistent with our application of the canon of consistent usage in
Barneck; the same word cannot be a temporal limitation for some
elements in a list but merely conditional for others.89


   86   UTAH CODE § 34-28-3(5) (emphasis added).
   87   Supra ¶ 13.
   88   Supra ¶ 28 (emphasis added).
   89 The majority interprets the term ―‘unless‘ . . . as merely ex-
pressing a condition (without any suggestion as to timing),‖ based
on ―the legal and practical context of the statute‘s operation.‖ Su-
pra ¶ 14. And it dismisses the fact that ―some of the listed objects‖
in subsection 5 ―will usually be satisfied before the withholding‖
as irrelevant to this conclusion. Supra ¶ 14 n.4. This artificial nar-
rowing of the meaning of the term ―unless‖ is unwarranted. Here
the practical context of the statute cuts in the opposite direction to
the one argued by the majority. See supra ¶ 12. As I have dis-
                                                       (continued . . .)

                                  34
                      UTLEY v. MILL MAN STEEL, INC.
           C.J. DURRANT, concurring in part and dissenting

  ¶74 In summary, the Act‘s central purpose is to assure that em-
ployees receive prompt payment of earned wages, and three of
the specific withholding exceptions clearly must be satisfied before
wages are withheld. These features of the statute, in my view,
clarify any ambiguity resulting from the legislature‘s use of the
term ―unless‖ in subsection 5(c). If an employer wants to withhold
earned wages under that exception, it must first present evidence
to a hearing officer, an administrative law judge, or a district court
judge. Here, Mill Man withheld the entirety of Mr. Utley‘s com-
missions before presenting any evidence of its offsetting claims.
And it admits that ―assuming that there were no other issues or
defenses between Mill Man and [Mr.] Utley, [Mr.] Utley would
have been entitled to payment of additional commissions in the
sum of [$]100,479.99.‖ Having failed to present evidence to an
administrative law judge, a hearing officer, or a district court
judge that would warrant an offset before making its withholding,
Mill Man‘s withholding was, in my view, improper.
  ¶75 The majority acknowledges that it is plausible to interpret
the statute in this way, but it rejects my reading based on a con-
cern that such an interpretation renders subsection 5(c) a dead let-
ter. It reasons that because the UPWA requires an employer to
pay wages within twenty-four hours of an employee‘s termina-
tion, requiring employers to present evidence supporting a with-
holding before retaining the employee‘s wages is a practical im-
possibility.90 An employer would be ―hard-pressed,‖ it concludes,
to secure even the ―entry of a stay or a temporary restraining or-
der‖ within such a ―narrow timeframe.‖91 The majority‘s reading
of the statute is deficient in a number of respects.
  ¶76 First, it leads to the absurd result of requiring an employer
to risk criminal liability in order to pursue a good-faith counter-
claim. Section 34-28-12 provides that ―[a]ny employer who shall
violate, or fail to comply with any of the provisions of this chapter

cussed, timing is a significant component of the other three sub-
section 5 withholding exceptions, and the central focus of the
UPWA is on timing—when and under what conditions wages
must be paid.
   90   Supra ¶¶ 13–15.
   91   Supra ¶ 16.


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                          Cite as: 2015 UT 75
           C.J. DURRANT, concurring in part and dissenting

shall be guilty of a misdemeanor.‖92 This language makes no ex-
ception for good-faith counterclaims that the employer is later un-
able to prove in court. So under the majority‘s reading, any em-
ployer who withholds wages based on a good-faith counterclaim
against the employee is guilty of a crime the moment a court rules
in the employee‘s favor. This would be true even in a close case
where the employee satisfies the preponderance of the evidence
standard only by the narrowest of margins.93
  ¶77 Certainly the legislature did not intend a statutory regime
where an employer is, as a matter of practical impossibility, pre-
cluded from withholding wages without risking criminal liability.
I know of no example in our caselaw or statutes where losing a
civil claim, including those brought in good faith, can result in
criminal liability. In my mind, to read the statute in this way pre-
sents an absurdity every bit as great as the one that the majority
and I agree mandates the inclusion of district court judge in sub-
section 5(c).94


   92   UTAH CODE § 34-28-12(1).
   93 The majority concedes that under its reading of the statute,
―the potential for criminal liability arises whenever an employer is
found to have violated the statute,‖ even when claims are brought
in good faith and the employer loses by the narrowest of margins.
Supra ¶ 24. To any employers who are understandably leery of
pursuing legitimate counterclaims under the specter of potential
criminal charges, the majority offers cold comfort—―the buffer‖ of
―prosecutorial discretion.‖ Supra ¶ 25. We have no way of know-
ing whether a prosecutor ―would presumably be inclined to with-
hold criminal charges‖ when an employer loses a good-faith
counterclaim. See supra ¶ 25. And in my view, an employer‘s abil-
ity to pursue legitimate withholding claims against an employee
should not depend on the good graces of whoever happens to re-
side in the district attorney‘s office when the claim arises. I believe
the far better answer to the conundrum presented by the statute‘s
imposition of criminal liability for the failure of even good-faith
counterclaims is that the legislature intended the employer to
make its proffer before withholding.
   94   See supra ¶¶ 37–42, 61–63.


                                     36
                    UTLEY v. MILL MAN STEEL, INC.
           C.J. DURRANT, concurring in part and dissenting

  ¶78 Second, there is a more straight-forward way to read sub-
section 5(c) so that it remains a viable exception while avoiding
this absurd result. I acknowledge that the twenty-four-hour peri-
od is problematic if we read the statute to require a full-fledged
decision on the merits after an evidentiary hearing.95 But the ques-
tion under subsection 5(c) is not the underlying merits of the em-
ployer‘s counterclaim. Rather, it is which party retains admittedly
earned wages during the adjudication of such a claim.
  ¶79 In my view, this is why the language in subsection 5(c) is
phrased conditionally. The employer‘s burden to justify a with-
holding is not to prevail on the merits. It is to ―present[] evidence
that . . . would warrant an offset.‖96 I believe the conditional lan-
guage, coupled with the short timeframe in which an employer
must satisfy its burden, indicates a legislative intent to require on-
ly a threshold showing or proffer of evidence that, if proven, war-
rants an offset—not a full-blown evidentiary hearing and a judg-
ment on the underlying merits.
  ¶80 As a practical matter, employers will likely have all or most
of this evidence on hand when an employee is terminated. After
all, the employer controls the timing the termination. And before
making the decision to terminate an employee, an employer has
presumably accumulated and analyzed the evidence it believes
justifies this decision. Further, our district court judges are regu-
larly available to hear urgent matters on short notice. For these
reasons, while it may be difficult for employers to make their
proffer of evidence within the twenty-four-hour window, it is not
the near impossible task suggested by the majority. And it would
certainly not be inconsistent with the terms of the UPWA to then
allow the administrative law judge, hearing officer, or district
court judge a reasonable time in which to make a preliminary
finding on whether the proffered evidence, if proven, would war-
rant an offset.97


   95   See supra ¶¶ 14–16.
   96   UTAH CODE § 34-28-3(5)(c) (emphasis added).
   97The majority argues that requiring a preliminary proffer of
evidence justifying the withholding is not compatible with the
procedural mechanisms prescribed in our rules of civil procedure,
                                                   (continued . . .)

                                 37
                          Cite as: 2015 UT 75
           C.J. DURRANT, concurring in part and dissenting

  ¶81 Moreover, in any case where an employer cannot timely
make its proffer of evidence in the ordinary course, other mecha-
nisms are available to it. For example, an employer could seek a
temporary restraining order or a preliminary injunction under
rule 65A of the Utah Rules of Civil Procedure.98 Ex parte motions
for emergency relief are also routinely decided within a day, but
even if the proceedings take more time, the employer could cou-
ple the motion for emergency relief with a motion to stay any
monetary or criminal penalties pending consideration of the evi-
dence.99

supra ¶ 17, and it maintains that reading the statute in this way
would ―develop[] a new procedural mechanism‖ that ―alter[s] our
civil rules‖ without the two-thirds majority vote in both houses of
the legislature that our constitution requires. Supra ¶ 17.
   Reading the statute to require a preliminary showing does not
create a novel procedural mechanism or a new procedural rule. In
subsection 5(c), the legislature sets forth a substantive rule con-
trolling when an employer may withhold wages and, by using
conditional language suggestive of a proffer (―presents evidence
that in the opinion of a hearing officer . . . would warrant an off-
set‖), indicates an evidentiary standard. See UTAH CODE § 34-28-
3(5)(c) (emphasis added). There is nothing new or novel about a
hearing to determine whether an evidentiary standard has been
met.
   98   UTAH R. CIV. P. 65A(e)(4).
   99  These procedural mechanisms are not ―imagin[ed]‖ ―hero-
ic,‖ or ―practically unavailable.‖ See supra ¶¶ 17, 20, 22. The ma-
jority‘s argument dismissing them hinges, in large part, on its in-
sistence that the subsection 5(c) evidentiary threshold requires ―a
merits-based ‗opinion‘ on the legal viability of an offset.‖ Supra
¶ 21. I agree that such a ruling ―could hardly be entered on an ex
parte basis,‖ supra ¶ 21, but in other contexts, courts routinely ac-
cord temporary relief during ex parte proceedings. See, e.g., UTAH
CODE § 78B-7-106(1) (authorizing courts to enter ex parte protec-
tive orders to protect a petitioner from domestic abuse); id. § 78B-
7-202 (providing the same relief for victims of child abuse); id. §
38-9a-202 (authorizing courts to issue ex parte civil wrongful lien
injunctions); id. § 77-3a-101 (allowing courts to issue ex parte civil
                                                       (continued . . .)

                                     38
                  UTLEY v. MILL MAN STEEL, INC.
         C.J. DURRANT, concurring in part and dissenting

  ¶82 For these reasons, I do not believe the twenty-four-hour-
payment requirement mandates the majority‘s reading of subsec-
tion 5(c). And I am convinced that its interpretation of that subsec-
tion, which allows preemptive withholdings and precludes an
employer from asserting even a good-faith counterclaim without
risking criminal liability, is inconsistent with the central purpose
of the UWPA—to ensure the prompt payment of earned wages.100
And to me it is more than a little ironic that the majority uses the
twenty-four-hour-payment requirement, a provision that high-
lights the urgency the legislature placed on the prompt payment
of wages, as justification for allowing the employer to withhold
earned wages during the full pendency of its counterclaim.
  ¶83 In sum, authorizing an employer to make unilateral,
preemptive withholding decisions inverts the central purpose of
the statute. Instead of shifting the financial risk of a wage dispute


stalking injunctions). And in any event, I have identified these
procedural mechanisms as fall backs an employer might use if
they are unable to make a preliminary showing within twenty-
four hours. As I have explained, I see no reason why we cannot
read subsection 5(c) as providing an employer a mechanism to ob-
tain a preliminary remedy that allows it to retain wages subject to
disgorging them later if its underlying counterclaim fails.
   100The majority rejects this argument because it finds ―no basis
for concluding that this was the legislature‘s only purpose, or that
it sought to vindicate this ‗central purpose‘ at the expense of all
other concerns.‖ Supra ¶ 33. And it maintains that another pur-
pose recognized in the statute‘s text is to protect ―the employer‘s
interest in withholding wages under the exceptions set forth in
[sub]section 5.‖ Supra ¶ 34. I agree with the majority that statutory
language is often ―the result of a legislative give-and-take that
balances multiple concerns,‖ supra ¶ 34 (internal quotation marks
omitted), and that subsection 5 recognizes employers‘ interests in
withholding wages. But that does not tell us much about whether
subsection 5(c) allows preemptive withholdings. After all, requir-
ing employers to seek approval before they withhold wages ac-
commodates both of these interests; employees receive prompt
payment of earned wages, and employers can pursue legitimate
counterclaims without facing criminal liability.


                                 39
                       Cite as: 2015 UT 75
         C.J. DURRANT, concurring in part and dissenting

to employers, the majority‘s reading effectively gives employers a
lien on any unpaid, but earned, wages to secure a counterclaim.
This gives employers powerful settlement leverage in a relation-
ship where they already enjoy unequal bargaining power. Perpet-
uating this imbalance frustrates the basic purpose of the statute,
and I do not believe the legislature intended such a consequence.
  ¶84 For these reasons, I respectfully dissent. Although I agree
with the majority that district court judges should be able to ap-
prove a withholding under subsection 5(c), I would hold that the
district court properly granted summary judgment because Mill
Man did not present evidence before withholding Mr. Utley‘s wag-
es.
                         ______________




                               40
