author: HOWE, Justice. DURHAM, Chief Justice,

text:
    2002 UT 95
    Toby GOTTLING, Plaintiff and Appellee, v. P.R. INCORPORATED, d/b/a Carbmaster and Kelly Peterson, Defendants and Appellants.
    No. 20010324.
    Supreme Court of Utah.
    Sept. 17, 2002.
    Rehearing Denied Dec. 13, 2002.

      Robert H. Wilde, Russell A. Denton, Mid-vale, for plaintiff.
    Steven R. McMurray, Bradley L. Tilt, Salt Lake City, for defendants.
   HOWE, Justice.

INTRODUCTION

¶ 1 We granted this interlocutory appeal to decide whether the trial court correctly ruled that an at will employee who claims to have been discriminated against by her employer and who is unable to seek relief under the Utah Anti-Discrimination Act can pursue a civil action for wrongful termination in contravention of an alleged public policy against sex discrimination.

BACKGROUND

¶ 2 Plaintiff Toby Gottling alleges that her employer, defendant P.R. Incorporated, terminated her because she refused to maintain a sexual relationship with P.R. Incorporated’s owner, defendant Kelly Peterson. The Utah Anti-Discrimination Act (UADA or the Act) provides an administrative remedy for discrimination, retaliation, or harassment by an employer on the basis of sex, race, color, pregnancy, age, religion, national origin, or disability. Utah Code Ann. §§ 34A-5-101 to -108 (1999). The remedy is limited, however, to those persons who work for an employer of fifteen or more employees (large employers). See Utah Code Ann. §§ 34A-5-102(8)(a)(iv) (defining “employer” for the purposes of the act as a “person employing 15 or more employees within the state for each working day in each of 20 calendar weeks or more in the current or preceding calendar year”). Because P.R. Incorporated — along with the majority of Utah employers — employs less than fifteen people, Gottling may not look to the UADA for relief from P.R. Incorporated’s alleged discrimination. See Burton v. Exam Ctr. Indus. & Gen. Med., 2000 UT 18, ¶ 25, 994 P.2d 1261 (Durham, J., dissenting) (stating that as recently as 1999, 69.7% of Utah employers were small employers).

¶3 Seeking an alternative remedy, Got-tling brought this action asserting a common law tort cause of action previously unrecognized by this court. Relying on our case law forbidding the termination of an at will employee in contravention of a clear and substantial public policy, Gottling alleged that P.R. Incorporated wrongfully terminated her in contravention of a public policy against sex discrimination. See Burton, 2000 UT 18 at ¶ 17, 994 P.2d 1261 (stating that though Utah did not have a public policy against age discrimination, discrimination on account of “sex ... may present different considerations”); Fox v. MCI Communications Corp., 931 P.2d 857, 860 (Utah 1997) (stating that “a public policy whose contravention is achieved by an employment termination must be ‘clear and substantial’ to be actionable”); Berube v. Fashion Ctr., Ltd., 771 P.2d 1033, 1043 (Utah 1989) (recognizing the existence of an action for wrongful termination of an at will employee in violation of a substantial and important public policy).

¶4 P.R. Incorporated answered Gottling’s complaint by denying her allegations and asserting the affirmative defenses that (1) Gottling’s cause of action was preempted by the UADA; (2) Gottling had failed to exhaust her administrative remedies under the UADA; and (3) Kelly Peterson could not be held personally liable for P.R. Incorporated’s conduct. Gottling then moved for partial summary judgment and to strike P.R. Incorporated’s affirmative defenses. In response, P.R. Incorporated cross-moved for summary judgment, arguing that an action for wrongful termination in contravention of a public policy against sex discrimination does not exist in Utah and that Kelly Peterson could not be held personally liable. After a hearing, the trial court ruled in favor of Gottling on all issues. We subsequently granted P.R. Incorporated’s petition for interlocutory appeal.

STANDARD OF REVIEW

¶ 5 “We review a trial court’s summary judgment ruling for correctness and afford no deference to its legal conclusions.” Utah Coal & Lumber v. Outdoor Endeavors Unlimited, 2001 UT 100, ¶ 9, 40 P.3d 581.

ANALYSIS

¶ 6 P.R. Incorporated contends that Got-tling cannot pursue a wrongful termination action based on the contravention of an alleged public policy against sex discrimination because (1) the UADA preempts all common law employment discrimination remedies and (2) Utah does not have a public policy against sex discrimination. P.R. Incorporated also argues that Kelly Peterson cannot be personally liable for the corporation’s alleged discrimination. We address each argument sequentially.

I. PREEMPTION

A.

¶ 7 We have long held that “where a conflict arises between the common law and a statute or constitutional law, the common law must yield,” Hansen v. Utah State Ret. Bd., 652 P.2d 1332,1337 (Utah 1982) because “the common law cannot be an authority in opposition to our positive enactments.” In re Garr’s Estate, 31 Utah 57, 68, 86 P. 757, 761 (1906). In fact,

[t]he rule of the common law that statutes in derogation thereof are to be strictly construed has no application to the statutes of this state. The statutes establish the laws of this state respecting the subjects to which they relate, and their provisions and all proceedings under them are to be liberally construed with a view to effect the objects of the statutes and to promote justice.

Utah Code Ann. § 68-3-2 (1999); see Retherford v. AT & T Communications, 844 P.2d 949, 962 (Utah 1992); Garr’s Estate, 86 P. at 761. Consequently, like an ordinance, the common law is invalid “if it intrudes into an area which the [legislature has preempted by comprehensive legislation intended to blanket a particular field.” State v. Hutchinson, 624 P.2d 1116,1121 (Utah 1980) (analyzing a statute’s preemptive effect on a county ordinance).

¶ 8 Whether legislation is intended to blanket a particular field — and thereby preempt existing or developing common law- — is obviously a question of legislative intent. Richardson v. Matador Steak House, Inc., 948 P.2d 347, 350 (Utah 1997). In short, we must decide if the legislature, with its broad law-making power, intended to exercise that power and to occupy the field in such a way as to exclude the contemporaneous application and development of the common law. See Gilger v. Hernandez, 2000 UT 23, ¶ 11, 997 P.2d 305. Generally, when answering this question we apply the two-tiered analysis for determining preemptive intent established by the United States Supreme Court. Id.; Price Dev. Co. v. Orem City, 2000 UT 26, ¶ 12, 995 P.2d 1237. We recently summarized this analytical framework as follows:

[i] Sometimes courts, when facing the pre-emption question, find language in the ... statute that reveals an explicit [legislative] intent to pre-empt [common] law. [ii] More often, explicit pre-emption language does not appear, or does not directly answer the question. In that event, courts must consider whether the ... statute’s “structure and purpose,” or nonspecific statutory language, nonetheless reveal a clear, but implicit, preemptive intent, [a] A ... statute, for example, may create a scheme of [statutory] regulation “so pervasive as to make reasonable the inference that [the legislature] left no room for the [common law] to supplement it.” [b] Alternatively, [statutory] law may be in “irreconcilable conflict” with [the common] law. Compliance with both ..., for example, may be a “physical impossibility,” or, [c] the [common] law may “stand as an obstacle to the accomplishment and execution of the full purpose and objectives of [the legislature].”

Gilger, 2000 UT 23 at ¶ 11, 997 P.2d 305 (quoting Barnett Bank of Marion County v. Nelson, 517 U.S. 25, 31, 116 S.Ct. 1103, 134 L.Ed.2d 237 (1996)); see also Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973); 2B Norman J. Singer, Sutherland Stat. Constr. § 50:05, at 156 (6th ed. 2001) (“Where common-law principles, associated with the subject matter of a statute, are not expressly affirmed or denied, the extent to which the common law is altered or changed is left to implication.”). Thus, where a statute’s plain language or its structure and purpose demonstrate a legislative intent to preempt an area of the law, the statute becomes the only source of law in that area, and the development and application of common law principles necessarily ceases.

B.

¶ 9 Turning to the UADA, we find that the plain language of section 34A-5-107(15) reveals an explicit legislative intention to preempt all common law remedies for employment discrimination. This section provides: “The procedures contained in this section are the exclusive remedy under state law for employment discrimination based upon race, color, sex, retaliation, pregnancy, childbirth, or pregnancy-related conditions, age, religion, national origin, or disability.” § 34A-5-107(15). The language of this “exclusivity provision” unambiguously indicates that the UADA preempts “common law causes of action” for employment discrimination based oh the “specific grounds” it lists. Retherford, 844 P.2d at 961 (holding that the UADA preempts common law causes of action for retaliation).

¶ 10 In declaring the UADA to be the “exclusive remedy under state law for employment discrimination,” section 34A-5-107(15) makes no distinction between actions against large and small employers. It might be argued that, as used in this section, the phrase “employment discrimination” refers solely to discrimination by large employers because only large employers are subject to the remedial provisions of the UADA. This argument fails, however, because the UADA does not define the phrase “employment discrimination,” and therefore, we must read the phrase literally, according to its ordinary and accepted meaning. Versluis v. Guar. Nat’l Cos., 842 P.2d 865, 867 (Utah 1992) (stating -that we must “give effect to each term according to its ordinary and accepted meaning”); Savage Indus, v. State Tax Comm’n, 811 P.2d 664, 670 (Utah 1991) (stating that “statutory words are read literally”); see also Hanchett v. Burbidge, 59 Utah 127, 135, 202 P. 377, 380 (1921) (stating that when “language is clear and unambiguous, it must be held to mean what it expresses”). Ordinarily, the phrase “employment discrimination” denotes discrimination by an employer, regardless of the employer’s size. See, e.g., Burton, 2000 UT 18 at ¶ 21, 994 P.2d 1261 (Durham, J., dissenting) (stating that the decision “will apply to all kinds of employment discrimination,” referring to the legislature’s “broad goal of eliminating employment discrimination” and recognizing a “publicly proclaimed desire to eliminate employment discrimination”). It is in this general sense that the phrase is used in section 34A-5-105(7)(a)(i), where the Anti-Discrimination and Labor Advisory Council is directed to “make recommendations” to the Labor Commission and the Division of Anti-Discrimination and Labor “regarding issues” including “employment discrimination.”

¶ 11 We assume that the legislature used the phrase “employment discrimination” advisedly. See Versluis, 842 P.2d at 867 (stating that when reading a statute, we presume that “the legislature used each word advisedly”). Elsewhere, the UADA refers to “discriminatory or prohibited employment practices,” which are narrowly defined as those activities specified as discriminatory in section 34A-5-106(l)(a) to (f), each of which requires an “employer” within the meaning of section 34A-5-102(8)(a)(iv). See § 34A-5-106(1). The legislature could have used the phrase “discriminatory or prohibited employment practices” in section 34A-5-107(15) and thereby have limited the UADA’s preemptive effect to common law actions for discrimination against large employers. Nevertheless, it chose to use the undefined, more expansive term. That choice, combined with the use of the word “exclusive” and the lack of any other qualifying language, explicitly reveals the legislature’s intent to preempt all other state law causes of action for employment discrimination.

C.

¶ 12 Even if the UADA lacked an explicit statement of preemptive intent, our holding that it preempts common law remedies for employment discrimination would not change because a clear preemptive intent can be implied from the statute’s structure and purpose. The UADA was designed “to prohibit discrimination in employment,” and it utilizes a variety of tools to accomplish that goal. Univ. of Utah v. Indus. Comm’n, 736 P.2d 630, 636 (Utah 1987). Not only does it create an administrative remedy for those alleging to have been discriminated against by large employers, the UADA also provides a remedy to those discriminated against by employment agencies, labor organizations, and persons who aid, incite, compel, or coerce to commit “discriminatory or prohibited employment practices.” § 34A-5-106(l)(b) to (e). In addition, the UADA “creates a substantial bureaucratic system to implement its aims.” Burton, 2000 UT 18 at ¶ 24, 994 P.2d 1261 (Durham J., dissenting). It establishes both the Utah Division of Anti-Discrimination and Labor and the Utah Anti-Discrimination and Advisory Council. §§ 34A-5-104 to -105. It delegates the power to receive, investigate, and pass upon complaints. § 34-5-104(2)(b). It directs that the “existence, character, causes, and extent of’ employment discrimination be investigated and studied. § 34-5-104(2)(c). It provides for the formulation of plans for elimination of discrimination, the issuance of publications designed to promote good will and eliminate discrimination, and the proposal of legislation designed to eliminate discrimination. “Clearly, the legislature believed the Act’s purposes were to have broad and important implications for the welfare of the Utah Workers.” Burton, 2000 UT 18 at ¶ 24, 994 P.2d 1261 (Durham, J. dissenting); see also Salt Lake City Corp. v. Confer., 674 P.2d 632, 633-34 (Utah 1983). Such a detailed and far-reaching approach to the problem of discrimination, encompassing a wide variety of methods, clearly manifests the legislature’s intent to completely blanket the field of employment law in Utah.

¶ 13 In addition to evidencing an intent to preempt the field of employment discrimination law in general, the structure of the statute also shows that the legislature intended its preemption of common law employment discrimination actions to apply to employees of small employers. Despite establishing a comprehensive legislative scheme, including a directive that five representatives of the general public sit on the Anti-Discrimination Advisory Committee, see § 34A-5-105(l)(a)(v), the UADA specifically exempts small employers from its administrative remedy. See § 34A-5-102(8)(a)(iv). The obvious nature of this category of employers — encompassing a majority of employers in Utah — leaves little doubt that its exclusion was intentional. See Gilger, 2000 UT 23 at ¶ 12, 997 P.2d 305 (holding that the Dramshop Act preempted a common law dramshop remedy against social hosts who served their guests only beer because the Act “specifically excluded [this category] from its civil liability provisions” and that “[g]iven the obviousness of this category of providers of beer” it was “obvious” such exclusion was not unintentional). See 2B Singer, Sutherland Stat. Constr. § 50:05, at 158 (6th ed. 2000)(“[G]eneral and comprehensive legislation, where course of conduct, parties, things affected, limitations, and exceptions are minutely described, indicates a legislative intent that the statute should totally supersede and replace the common law dealing with the subject matter”) (citing Hammond v. Wall, 51 Utah 464, 171 P. 148 (1917)). Moreover, the UADA creates an elaborate remedial process requiring that

[a] covered employee alleging discrimination must assert his claim within 180 days of the alleged discrimination.... The charge is filed at the UADD and is handled administratively. Emphasis in the administrative process is placed on conciliation and voluntary resolution. The UADA mandates that the administrative agency “attempt a settlement between the parties by conference, conciliation, or persuasion.” If the claimant is successful, the relief provided includes reinstatement, back pay and benefits, and attorney fees, but no compensatory or punitive damages may be awarded. This is all done without charge by the administrative agency.

Burton, 2000 UT 18 at ¶ 17, 994 P.2d 1261 (internal citations omitted). It would be illogical to suppose that the legislature intended to provide the benefit of this timely and cost-effective procedure to large employers while, at the same time, intending to subject small employers to a civil tort action in which they would be vulnerable to a longer statute of limitations, damages, attorney fees and, possibly, a jury trial. Indeed, “it appears ... that the policy reflected in the careful legislative designation of those liable and those not liable under the Act cannot coexist with the imposition by courts of different standards of ... damage exposure for some of those the legislature has decided should not be liable under the Act.” Gilger, 2000 UT 23 at ¶ 13, 997 P.2d 305. Accordingly, we conclude that the structure and purpose of the UADA clearly exhibits an implicit intent to preempt common law causes of action for employment discrimination by both large and small employers.

¶ 14 The dissent suggests that legislatures are presumed to know the common law in effect at the time of the enactment of a statute and that absent a signal of legislative intent, the common law should not be preempted. From that principle, the dissent argues that the UADA was intended to “strengthen anti-discrimination law; nowhere does it suggest an intent to weaken or undermine it.” See infra ¶ 29. However, no common law remedy for employment discrimination existed in Utah prior to the enactment of the UADA in 1969. There was no common law for the legislature to “strengthen” or “weaken” in enacting the UADA.

D.

¶ 15 Our conclusions regarding the plain language and the structure and purpose of the UADA are bolstered by its legislative history. The original draft of the UADA defined an employer as “every other person employing one or more employees in the State.” Utah State House of Rep., 36th Leg., Reading of House Bill 62, February 22, 1965, Record 1 Side 2. After the second formal reading of the bill, the majority of the House was unsatisfied with the bill and returned it to committee. The substitute — and ultimately adopted — bill defined employers as persons “employing twenty-five or more employees.” Utah Code Ann. § 34-17-2(5) (1953). This, despite the testimony of one of the drafters of the original bill that the new definition of employer “would create a no man’s land between the federal [Civil Rights Act of 1964] and the state law.” See House of Representatives, Floor Debate on House Bill 62, March 6, 1965, 57th Day, Record 1 Side 2 at 2-4. No other common law remedies for employment discrimination were available at that time in Utah and therefore it is obvious that the legislature deliberately chose to leave individuals employed by small employers without a remedy for employment discrimination.

¶ 16 The available legislative history does not reflect precisely why the legislature ultimately chose to eliminate small employer liability. It does, however, reveal that the UADA was modeled after Title VII of the Civil Rights Act of 1964, which contains a similar exemption for small employers. See Utah State House of Rep., 46th Leg., Reading of House Bill 62, March 8, 1965, Record 1 Side 1 (one of Bill’s drafters stating the UADA “matches” Title VII); Id. at Side 2 (Bill’s sponsor stating that the Act “will implement federal [title VII] legislation” in the state context); see also Utah State Senate, Floor Debate on Senate Bill 216, February 22, 1985, Record 1 Side 2 (stating that 1985 amendments to the Act reducing the number of people a person must employ to be considered an employer to fifteen was to “bring the state into compliance with federal law”). Congress included the small business exception in Title VII to protect the intimate relationships associated with small employers and to shield them from the heavy costs of defending against discrimination claims. See 110 Cong. Rec. S. 13092 (1964) (remarks of Sen. Cotton); 110 Cong. Rec. 13085-88 (June 9, 1964); 110 Cong. Rec. S. 13088 (1964) (remarks of Sen. Humphrey); 110 Cong. Rec. S. 13092-93 (1964) (remarks of Sen. Morse); 110 Cong. R. 6566 (1964); 110 Cong. R. 7212 (remarks of Sen. Clark); see also Tomka v. Seiler Corp., 66 F.3d 1295, 1314 (2d Cir.1995) (citing Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587 (9th Cir.1993) (stating that small employers are exempted from federal employment discrimination litigation because “Congress did not want to burden small entities with the costs associated with litigating discrimination claims”)); Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510 (4th Cir.1994) (stating that the purpose of exempting small employers is to reduce burden on small businesses); Evan S. Tilton, Note, Stumbling at the Finish Line: Employment Discrimination and the Utah Supreme Court in Burton v. Exam Center Industrial, 2000 B.Y.U. L.Rev. 801, 815 (comparing the UADA and Title VII). We have assumed therefore that the small business exception in the UADA was modeled after its federal counterpart and arose from similar concerns about the effect of the UADA on small businesses. See Burton, 2000 UT 18 at ¶ 17, 994 P.2d 1261 (recognizing that the reasons for the small business exemption in federal litigation are applicable to the UADA).

E.

¶ 17 Stating that there was “no controlling authority” on the issue of preemption, the

trial court misinterpreted the plain language and the structure and purpose of the UADA. Instead, relying on a single Maryland Court of Appeals case, Molesworth v. Brandon, 341 Md. 621, 672 A.2d 608 (1996), it erroneously suggested that the legislative intent behind the small employer exemption of the UADA was not to preempt the common law but “to avoid overburdening the administrative agency responsible for enforcing the Act.” The trial court’s reliance on Molesworth is misplaced. Molesworth is not a preemption case. It addresses preemption only in discussing whether a public policy against sex discrimination existed in Maryland. Whether a public policy exists is an entirely different issue than whether a statute preempts a cause of action. In its discussion of public policy, Molesworth does cite a prior preemption case, National Asphalt Pavement Ass’n v. Prince George’s County, 292 Md. 75, 437 A.2d 651 (1981), in which the Maryland Court of Appeals held that Maryland’s equivalent to the UADA did not preempt a preexisting county employment discrimination law. Yet, National Asphalt can be distinguished from our holding today because the Maryland statute in question there did not contain an explicit indication of the legislature’s preemptive intent and that case deals not with a new common law cause of action, but with a local ordinance that predated the Maryland statute. Nat’l Asphalt, 437 A.2d at 651.

¶ 18 Aside from the fact that Molesworth does not directly address preemption, the trial court’s reliance on that case to suggest that the small employer exemption of the UADA was meant to avoid administrative backlog is problematic because in our view Molesworth is of questionable authority on this point. The Molesworth court’s pronouncements regarding the intent of the Maryland legislature are relevant, if at all, only to a determination of the preemptive effect of the UADA insofar as they address the congressional intent behind Title VII of the Civil Rights Act of 1964, which we have recognized as a model to the UADA. In determining that the purpose of the small employer exemption in the Maryland equivalent to the UADA was to avoid a heavy administrative burden, Molesworth looks to a single U.S. House of Representatives committee minority report prepared in conjunction with the 1972 amendments to the Civil Rights Act of 1964 and concludes that “the intent of at least some of the legislators [involved in the 1972 amendments] was to exempt small employers from the administrative process under the Act to avoid overburdening the EEOC.” Molesworth, 672 A.2d at 614. In so concluding, it ignored other history of the 1972 amendments that “identifies] the concern of many Senators that expanding the scope of the federal law would subject small businesses to expensive law suits.” Id. at 633 (emphasis added). More importantly, it ignores the ample congressional history and many cases, cited above, which detail the intent of Congress in including a small business exemption in the original federal Act passed in 1964. These sources convincingly demonstrate that the primary purpose of the small business exception was to avoid burdening small employers. See infra ¶ 16.

¶ 19 Molesworth relied on Collins v. Rizkana, 73 Ohio St.3d 65, 652 N.E.2d 653 (1995), a case cited by Gottling, where despite a statute similar to the UADA, the Ohio Supreme Court recognized a common law cause of action for sex discrimination. Like Moles-worth, however, Collins is fundamentally a policy case, not a preemption case. It addresses the subject of preemption only in its discussion of whether Ohio enjoyed a public policy against sex discrimination. In stating that the Ohio equivalent to the UADA did not preempt common law remedies, the Ohio Supreme Court expressly relied on its earlier decision in Helmick v. Cincinnati Word Processing, Inc., 45 Ohio St.3d 131, 543 N.E.2d 1212 (1989). Helmick can be distinguished because there the Ohio Supreme Court found there was nothing in the “language or legislative history of [the Ohio Anti-Discrimination statute] barring the pursuit of common-law remedies for injuries out of sexual misconduct.” Id. at 1215. Further, the actions discussed in that case were not employment discrimination actions, but those for intentional and negligent infliction of emotional distress, assault and battery, invasion of privacy, defamation of character and tortious interference with and breach of their employment contracts. Id. at 1212. Further still, though Collins did not address the issue, its assertion that the Ohio statute did not preempt common law employment discrimination actions appears directly at odds with a statement in Helmick that the Ohio statute “does provide the exclusive remedy for pure employment discrimination claims.” Id. at 1216. For all of these reasons, the trial court erred by relying on Molesworth to support its determination that the UADA did not preempt common law causes of action for employment discrimination.

¶20 In its ruling, the trial court also suggested that the legislature could not have meant to preempt common law actions against small employers because it would be “inequitable” to find that “small employers are granted a license to discriminate and their employees have no recourse available to them.” However, the “ ‘legislature need not “strike at all evils at the same time,” Semler v. Dental Examiners, 294 U.S. 608, 610, [55 S.Ct. 570, 571, 79 L.Ed. 1086], and ... “reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind,” Williamson v. Lee Optical Co., 348 U.S. 483, 489 [75 S.Ct. 461, 465, 99 L.Ed. 563].’” Greenwood v. City of North Salt Lake, 817 P.2d 816, 821 (Utah 1991) (quoting Katzenbach v. Morgan, 384 U.S. 641, 657, 86 S.Ct. 1717, 1727, 16 L.Ed.2d 828 (1966)). Moreover, new statutory schemes, in certain circumstances, may preclude formerly available common law causes of action, despite leaving some individuals without a remedy. See, e.g., Gilger, 2000 UT 23 at ¶ 13, 997 P.2d 305 (holding that the Dramshop Act preempted a common law dramshop remedy against social hosts who served their guests only beer, even though the Act did not provide an alternative remedy); see also Masich v. United States Smelting, Ref. & Mining Co., 113 Utah 101, 126, 191 P.2d 612, 624-25 (1948) (upholding legislation abrogating a common law right to recover for work-related injury). In this case, the legislature has not taken away an existing right, but has simply indicated its intent to preempt the creation of a new one.

F.

¶21 We hold therefore that because the UADA preempts all common law causes of action for discrimination, retaliation, or harassment by an employer on the basis of sex, race, color, pregnancy, age, religion, national origin, or disability, the trial court erred by recognizing a common law cause of action against a small employer for wrongful termination in contravention of a public policy against sex discrimination.

II. PUBLIC POLICY

¶22 P.R. Incorporated also argues that Gottling cannot pursue a wrongful termination claim based on the contravention of a public policy against sex discrimination because Utah does not have a public policy against gender discrimination. In Burton, we acknowledged that a “public policy against discrimination on grounds [of sex] might conceivably be found in [the] statutes of this state.” Burton, 2000 UT 18 at ¶ 17, 994 P.2d 1261. However, our decision that the UADA preempts all common law remedies for employment discrimination renders unnecessary a discussion and determination of that question. Even if a public policy against sex discrimination exists, it would not allow Gottling to bring a common law tort action against P.R. Incorporated. We therefore express no opinion on the matter.

III. PROPER EXERCISE OF JUDICIAL POWER

¶23 This court is no friend to employment discrimination. Nevertheless, we recognize that our decision today leaves many Utah workers unable, should the need arise, to obtain relief from employment discrimination. As a result, some will undoubtedly accuse this court of opening the door for small employers in Utah to discriminate. Those who do so ignore the reality that it is the legslature that primarily holds the power to open and shut that door. Indeed, “[t]his court cannot ignore or strike down an act because it is either wise or unwise. The wisdom or lack of wisdom is for the legislature to determine.” Masich, 113 Utah at 126, 191 P.2d at 625. We need not “agree with [the legislature] as a matter of public policy.... What the legislature ‘should’ do is not the question. Rather it is what the legislature has done.” Gilger, 2000 UT 23 at ¶ 13 & n. 5, 997 P.2d 305. Having determined what the legislature has done,

respect for the legislative prerogative in lawmaking requires that the judiciary not interfere with enactments of the Legislature where disagreement is founded only on policy considerations and the legislative scheme employs reasonable means to effectuate a legitimate objective. In matters not affecting fundamental rights, the prerogative of the legislative branch is broad and must by necessity be so if government is to be by the people through their elected representatives and not by judges.

Baker v. Matheson, 607 P.2d 233, 237 (Utah 1979). Simply put, we must not craft a remedy where the legislature intends no remedy to exist. To do otherwise trespasses upon the legislative domain and threatens the fragile balance of power upon which our system of government rests. As with other things, if the UADA “is unjust, amendments to correct the inequities should be made by the legislature and not by judicial interpretation.” Masich, 113 Utah at 101, 191 P.2d at 625. Those who desire to effectuate a change in Utah employment law should center their efforts on the legislative branch, whose purpose and duty it is to represent the voice of the people in determining the law of this state. Until the law is changed, this court must enforce it as it is now written, whether we agree with it or not.

CONCLUSION

¶ 24 The Utah Anti-Discrimination Act preempts all common law remedies for employment discrimination on the basis of race, color, sex, pregnancy, age, religion, national origin, or disability. Therefore, Gottling may not bring a cause of action for wrongful termination in contravention of an alleged public policy against sex discrimination. The summary judgment of the trial court is reversed, and the complaint is dismissed for failure to state a cause of action.

¶ 25 Associate Chief Justice DURRANT, Justice RUSSON, and Justice WILKINS concur in Justice HOWE’s opinion.

DURHAM, Chief Justice,

dissenting.

¶ 26 I respectfully dissent.

¶ 27 Oliver Wendell Holmes noted that the law is a “magic mirror” reflecting “not only our own lives, but the lives of all men that have been.” Oliver Wendell Holmes, Jr., The Speeches of Oliver Wendell Holmes 17 (1891). The law thus reflects the myriad changes that occur in society, and strives, however imperfectly, to make the world more just. The Utah Legislature acknowledged profound societal changes when it passed the Utah Anti-Discrimination Act. Responding to the deep revulsion felt by the majority of our citizens to unfair employment discrimination, the Act made such practices actionable in a fast, relatively cheap, and efficient way. The majority opinion draws the illogical conclusion that, in providing statutory remedies for employees of large employers (employers of fifteen or more employees), the legislature preemptively eliminated all common law employment discrimination remedies for all other employees. I disagree.

¶28 The anti-discrimination statute provides administrative procedures for all employment discrimination claims arising at larger employers. This statutory scheme is silent regarding all other employees who constitute the majority of Utah workers. The majority of this court infers from this silence the conclusion that the legislature legitimized employment discrimination against all employees of small businesses, including Ms. Gottling, who was allegedly fired by her employer for refusing his sexual demands.

¶ 29 Traditionally, the legislature may change the common law only explicitly. Fed. Sav. & Loan Ins. Corp. v. Quinlan, 678 F.Supp. 174, 176 (E.D.Mich.1988). “The legislature is presumed to know the common law which existed before the enactment of a statute, and ‘absent an indication that the legislature intends a statute to supplant common law, the courts should not give it that effect’ ” (quoting Norman J. Singer, Sutherland Stat. Constr. § 50.01, at 422 (4th ed.1984)); see also Tucson Gas & Elec. Co. v. Schantz, 5 Ariz.App. 511, 428 P.2d 686, 690 (Ariz.1967); Hechter v. N.Y. Life Ins. Co., 46 N.Y.2d 34, 412 N.Y.S.2d 812, 385 N.E.2d 551, 554 (1978). This principle of interpretation is particularly important here where major public policies such as anti-discrimination are concerned. If the legislature wishes to make sexual harassment lawful for the employers, it knows how to do so. On its face, this statute is intended to strengthen anti-discrimination law; nowhere does it suggest an intent to weaken or undermine it. The majority’s assumption to that effect is distressing in its implications.

¶ 30 In my view, the legislature intended by the Act to establish simplified procedures and more certain remedies for unlawful discrimination by bigger businesses. That goal is inconsistent with the conclusion that the legislature sub silencio repealed and eliminated existing common law remedies for employees who happen to work for smaller employers. The majority’s position implicitly concludes that the legislature in fact intended the statute to weaken employment anti-discrimination law, rather than strengthen it. I am not prepared to accept that conclusion.

¶ 31 The legislature created a “package deal” affecting employees of larger firms. The trade-offs included in the package, not unlike those contained in the workers’ compensation scheme, are clear: In return for losing access to common law remedies (some of which were unorganized, under-developed, or uncertain during this period), employees could use a simple, relatively certain, statutory procedure for redressing discriminatory practices. Presumably, the legislature did not extend the Act to smaller employers out of concern that they might be financially unable to meet the costs of creating the sorts of hiring and promotion policies that are the most effective way of avoiding anti-discrimination lawsuits. Moreover, it is reasonable to make it easier to sue and recover from an entity which has greater monetary resources, especially because large, visible corporations are more likely to serve as an example than smaller enterprises. But there is no reason to infer from the fact that the legislature strengthened anti-discrimination remedies against large employers that it simultaneously intended to destroy or preclude existing and future remedies against small employers.

¶ 32 The majority opinion states that the phrase “employment discrimination” is not defined in the statute and therefore must include discrimination by small firms. See Utah Code Ann. § 34A-5-107(15) (2001). This is incorrect. The statute explicitly states that it applies only to employers with fifteen or more employees. This is a limiting definition of employment discrimination: The statute simply does not speak to discrimination by small employers.

¶ 33 In Burton this court decided the common law issue of whether age discrimination could be the basis for a claim for tortious wrongful termination for employees of small employers on grounds other than the UADA’s alleged exclusivity. Burton v. Exam Ctr. Indus. & Gen. Med. Clinic, Inc., 2000 UT 18, ¶¶ 10-12, 994 P.2d 1261. Had the UADA applied, there would have been no reason to do a public policy analysis. The legislature’s “broad goal of eliminating employment discrimination” supports, the common law remedy plaintiff seeks here. Burton at ¶ 25 (Durham, J., dissenting). It is the “important and substantial public policies” involved in eradicating the scourge of employment discrimination from our society that point to the legislature having no intent to weaken the very rights of Utah workers they have sought to protect. See Berube v. Fashion Ctr., Ltd., 771 P.2d 1033,1042 (Utah 1989). Today’s decision announces the principle that the majority of Utah workers have no remedy whatsoever, statutory or common law, against their employers for discrimination on the basis of race, color, sex, pregnancy, age, religion, national origin, or disability. I cannot agree that the legislature either intended this result or accomplished it in the Utah Anti-Discrimination Act. Such a result violates basic notions of fairness and human dignity. Furthermore, as I noted in my dissent in Burton:

[T]he way in which a state regulates relations between employees and employers has a significant impact on the quality of life for many of its citizens, and ultimately for the society as a whole. The “workplace climate” of a state is an important part of its opportunities for economic growth and long-term development. It is an entirely appropriate arena for the operation of policy choices intended to benefit the public interest, as indeed is manifest by the legislature’s choice to embody anti-discrimination principles in [the] statute. Utah should not be a place where workers can be fired, paid less, or otherwise treated less favorably by nearly 70 percent of all employers on the basis of their race, sex, religion, disability, or age.

Burton, 994 P.2d 1261, 2000 UT 18 at ¶ 25 (Durham, J., dissenting).

      . Both Gottling and P.R. Incorporated center their preemption arguments on the analytical framework we established in Retherford v. AT & T Communications, 844 P.2d 949, 964-66 (Utah 1992). Retherford, however, provided a very specialized test for determining the preemptive effect "where the statute at issue offers a remedy for a specific type of injury caused by an act of the defendant and where the asserted common law causes of action, while based on the same facts, offer a remedy for a potentially different injury based on those same facts.” Gilger, 2000 UT 23 at ¶ 10, 997 P.2d 305. Here, we are not faced with a conflict between a specific statutory remedy and a common law remedy for a potentially different injury based on the same facts because the UADA does not offer a remedy to individuals discriminated against by small employers. Consequently, the application of the Retherford framework is inappropriate in this situation.

      . We note that we were asked to decide whether the UADA preempts common law remedies for employment discrimination in Bwion. Because we decided that case on another ground, we did not address the issue. Burton, 2000 UT 18, 994 P.2d 1261.

      . Our decision also renders unnecessary discussion of Kelly Peterson's personal liability.

      . In a recent decision we stated that courts may look to statutory "structure and purpose” to find “implicit, preemptive intent” of the common law when the statutory regulation is "so pervasive,” is in "irreconcilable conflict” with the common law, or when the common law “stand[s] as an obstacle to the accomplishment ... of the full purposes and objectives of [the legislature].” Bishop v. GenTec Inc., 2002 UT 36, ¶9, 48 P.3d 218 (citations omitted and internal quotations omitted). The Utah Anti-Discrimination Act is not "so pervasive” to warrant such a discussion since it covers only employees of businesses with fifteen or more employees, and neither is the common law in "irreconcilable conflict” or an "obstacle” to the statutory scheme.


source: Caselaw Access Project

author: DURRANT, Associate Chief Justice: HOWE, Justice,

license: Public Domain

text:
    2002 UT 98
    STATE of Utah, Plaintiff and Respondent, v. Lance Michael WEEKS, Defendant and Petitioner.
    No. 20001049.
    Supreme Court of Utah.
    Oct. 8, 2002.
    Certiorari Denied Dec. 12, 2002.

      Mark L. Shurtleff, Att’y. Gen., Karen A. Klucznik, Asst. Att’y. Gen., Salt Lake City, for plaintiff.
    Linda M. Jones, Scott C. Williams, Salt Lake City, for defendant.
   DURRANT, Associate Chief Justice:

¶ 1 This appeal concerns the imposition of a restitution award. At a sentencing hearing, the district court ordered that the defendant, Lance Weeks, pay restitution in the amount of $9,104.35. Although Weeks did not object to the restitution amount at that time, he later challenged the amount on the ground that no evidence justified the decision. The district court subsequently upheld its restitution ruling, and Weeks appealed to the Utah Court of Appeals. The Utah Court of Appeals affirmed, reasoning that (1) Weeks had waived his right to challenge the sentencing court’s restitution award by failing to object to the restitution decision prior to the conclusion of the sentencing hearing, (2) his waiver of this right was not resuscitated by the sentencing court’s post-sentencing actions, and (3) the sentencing court had not committed plain error by failing to make a written finding as to each of the factors listed in subsection 76-3-201(8) of the Utah Code.

¶ 2 On certiorari, Weeks claims the sentencing court erred in four respects. First, he asserts that subsection 76-3-201(4)(e) of the Utah Code does not require that a request for a restitution hearing originate prior to the conclusion of the sentencing hearing. Second, he contends that even if that subsection requires such a request, the sentencing court resuscitated the issue through its post-sentencing actions. Third, he alleges that he did not receive a full hearing on restitution because the sentencing court based its restitution decision on evidence that lacked an evidentiary foundation. Finally, he contends that the sentencing court committed plain error when it failed to make written findings regarding each of the factors listed in subsection 76-3-201(8) of the Utah Code.

¶ 3 We conclude that Weeks did receive a full hearing for restitution purposes. We further conclude that Weeks waived his right to challenge the sentencing court’s failure to reference on the record each factor listed in subsection 76-3-201(8), and the court’s failure to do so did not constitute plain error. We therefore affirm.

BACKGROUND

¶ 4 On July 6, 1999, Weeks pleaded guilty to five third-degree felonies and two Class A misdemeanors. On September 10, 1999, the district court sentenced Weeks on three of those convictions (two third-degree felonies and one Class A misdemeanor) to an indeterminate period of incarceration ranging from one to five years, and ordered that he pay restitution in the amount of $9,104.35. Weeks did not object to the restitution amount at that time.

¶ 5 Eleven days later, Weeks requested that the district court “schedule a [rjestitution hearing.” The district court complied with this request and notified the parties with a document entitled “NOTICE OF RESTITUTION HEARING.” At this restitution hearing, Weeks asked for clarification as to how the restitution amount was calculated. The district court responded that the restitution amount had been derived from a presentence investigation report (the “pre-sentence report”).

¶ 6 After receiving this explanation, Weeks argued that the restitution amount ordered by the district court did not appear to be supported by any evidence because the figures cited in the presentence report lacked an evidentiary foundation. The State countered that “even if [the figures included in the report were] estimates, they [were] probably only pennies off or probably short.” The district court subsequently upheld the restitution amount, ruling from the bench that “[g]iven what I have reviewed, that being the presentence report, as well as the orders in the matter, as well as now having heard arguments of counsel, I[am] persuaded that ... the numbers I have ordered as restitution [are] fair and reasonable.” It later entered a written order reaffirming its decision, noting that it had “heard evidence and arguments of counsel.”

¶ 7 Weeks appealed to the Utah Court of Appeals, contending that he was entitled to— but did not receive — a “full hearing” under subsection 76-3-201(4)(e) of the Utah Code and that the sentencing court committed plain error by not complying with the requirements of subsections 76-3-201(4)(d)(i) and (8) of the Utah Code. State v. Weeks, 2000 UT App 273, ¶ 6,12 P.3d 110. In a split decision, the court of appeals rejected both arguments. It reasoned (1) that Weeks had waived his right to a restitution hearing by-failing to object to the amount of restitution at his sentencing hearing, (2) that his waiver of this right was not subsequently resuscitated by the sentencing court at the post-sentencing hearing because the court did not receive evidence at that time, id. at ¶¶ 10-12, and (3) that the sentencing court had not committed plain error by failing to make a written finding for each factor listed in subsection 76-3-201(8) because that section merely identifies the factors that must be considered by the court and subsection 76-3-201(4)(d)(i) demands only that the court “make the reasons for its decision part of the record,” id. at ¶¶ 15-17.

¶ 8 Weeks then petitioned this court for a writ of certiorari, which we granted. We have jurisdiction pursuant to subsection 78-2-3(a) of the Utah Code.

¶ 9 On certiorari, Weeks claims the court of appeals erred in four respects. First, he asserts that subsection 76-3-201(4)(e) does not require that a request for a restitution hearing originate prior to the conclusion of sentencing. Second, he contends that even if subsection 76-3-201(4)(e) requires that a request for a restitution hearing be made before the sentencing hearing ends, the sentencing court resuscitated the issue by its post-sentencing actions. Third, he claims that he did not receive a full hearing within the meaning of subsection 76-3-201(4)(e) because the sentencing court based its restitution decision on evidence that lacked an evi-dentiary foundation. Finally, he alleges that the sentencing court committed plain error when it failed to make written findings regarding each of the factors listed in subsection 76-3-201(8) of the Utah Code.

ANALYSIS

I. STANDARD OF REVIEW

¶ 10 Three separate principles govern the standard of review applicable to this case. First, in exercising our certiorari jurisdiction, we review the court of appeals’ decision, not the opinion of the sentencing court. See Butterfield v. Okubo, 831 P.2d 97, 101 n. 2 (Utah 1992). Second, we afford the court of appeals’ ruling no deference and review for correctness. See Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 11, 48 P.3d 968. Finally, we may affirm the court of appeals’ decision on any legal ground or theory supported by the record. See Dipoma v. McPhie, 2001 UT 61, ¶ 18) 29 P.3d 1225.

II. WEEKS’S RIGHT TO A RESTITUTION HEARING

¶ 11 Weeks first argues that the court of appeals incorrectly concluded that subsection 76-3-201(4)(e) requires a defendant to request a restitution hearing prior to the conclusion of sentencing; alternatively, he claims that the court of appeals erred in finding the sentencing court did not resuscitate his right to such a hearing by its post-sentencing actions. We do not reach the merits of either contention, however, because, even if the court of appeals did err in deciding those questions, we conclude that alternative grounds exist for affirming the court of appeals’ decision. Accordingly, for purposes of this appeal, we assume that Weeks either timely requested a restitution hearing or that the sentencing court subsequently resuscitated his right to such a hearing.

III. SUBSECTION 76-3-201(4)(e)’S FULL HEARING REQUIREMENT

¶ 12 We thus turn to the question of whether the sentencing court provided Weeks with a full hearing within the meaning of subsection 76-3-201(4)(e) of the Utah Code. In relevant part, that subsection declares that “[i]f the defendant objects to the imposition, amount, or distribution of the restitution, the court shall at the time of sentencing allow the defendant a, full hearing on the issue.” Utah Code Ann. § 76-3-201(4)(e) (1999) (emphasis added).

¶ 13 Relying on this subsection, Weeks contends that the sentencing court denied him a full hearing because the presentence report it relied on as the basis for ordering restitution lacked an evidentiary foundation. Put differently, he argues that no evidence was introduced at the restitution hearing on which the sentencing court could justify its conclusion. He further asserts that this lack of evidentiary support violates the due process clauses of both the United States Constitution and the Utah Constitution. We disagree.

¶ 14 To begin with, contrary to the court of appeals’ opinion, some evidence was presented at the restitution hearing. Indeed, the State pointed to the statements in the pre-sentence report at the restitution hearing as a basis for the restitution amount. Moreover, the sentencing court stated at the restitution hearing that it had “reviewed ... the presentence report” and relied on it to determine the $9,104.35 restitution figure. Finally, in its written order regarding the restitution hearing, the sentencing court noted that it had “heard evidence.” Accordingly, the presentence report was indisputably presented as proof at the restitution hearing to support the sentencing court’s restitution award.

¶ 15 The presentence report recommended restitution in the amount of $9,104.35. This figure was based on statements made by the two victims, several police reports, and records supplied by an automobile insurance company. Although the sentencing court relied upon the presentence report at the restitution hearing, Weeks claims that the report was insufficient to sustain the sentencing court’s decision because it lacked an evi-dentiary foundation (i.e., it was based on hearsay). We disagree.

¶ 16 A full hearing under subsection 76-3-201(4)(e) of the Utah Code does not require that the State present evidence that would be admissible at trial. No such requirement exists because the rules of evidence do not apply to a restitution hearing. State v. McBride, 940 P.2d 539, 541-42 (Utah Ct.App. 1997). Rule 1101(b)(3) of the Utah Rules of Evidence explicitly declares that the evidentiary rules do not apply to sentencing proceedings, Utah R. Evid. 1101(b)(3); see also State v. Sanwick, 713 P.2d 707, 709 (Utah 1986) (stating that under Rule 1101(b)(3), “the rules of evidence in general, and the rules on hearsay exclusions in particular, are inapplicable in sentencing proceedings”), and a restitution hearing clearly qualifies as such a proceeding, McBride, 940 P.2d at 541^42.

¶ 17 There is wisdom in not applying the evidentiary rules to restitution hearings. Specifically, at the time of sentencing, a judge balances a number of different considerations and needs flexibility in issuing punishment. In fact, he or she often has the option of incarcerating a convicted defendant, fining that individual, and/or imposing a restitution amount. See State- v. Rhodes, 818 P.2d 1048, 1051 (Utah Ct.App.1991) (noting that the trial court has broad discretion in imposing sentence and may consider many different factors in imposing punishment). Given the variety of options available, a sentencing judge may increase or decrease one form of punishment depending on other punishment imposed. The need for imposing the same evidentiary strictures required in a full-blown trial is therefore diminished because the sentencing judge may have imposed the restitution amount in place of a greater fine or incarceration term. See Utah Code Ann. § 76-3-201(8)(b) (1999) (explaining that in ordering restitution, a “court shall consider all relevant facts ” (emphasis added)); Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) (affirming that there are “sound practical reasons” for not applying evidentiary rules to sentencing proceedings because a sentencing judge has the task of determining “the type and extent of punishment”).

¶ 18 For instance, in the three criminal convictions before us (two third-degree felony convictions and one Class A misdemeanor conviction), the judge could have fined Weeks up to $12,500, see Utah Code Ann. § 76-3-301(b) to (e) (1999) (stating that a person convicted of a third-degree felony may be fined up to $5,000 and that a person convicted of a class A misdemeanor may be fined up to $2,500), and incarcerated him for an indeterminate period not to exceed eleven years, see Utah Code Ann. § 76-3-203(3) (1999) (declaring that a person who has been convicted of a third-degree felony may be sentenced to imprisonment for an indeterminate period not to exceed five years); id. § 76-3-204 (providing that a person who has been convicted of a class A misdemeanor may be sentenced to imprisonment for a term not exceeding one year). The sentencing judge opted, however, not to fine Weeks, but rather, incarcerated him for an indeterminate period ranging from one to five years, however. The judge therefore may have imposed the restitution award in lieu of a fine or increased prison term.

¶ 19 In addition to assisting the sentencing judge in imposing the proper punishment, flexibility at sentencing is also beneficial to both victims and defendants. Victims benefit because they do not have to participate in a mini-trial to establish the validity of a restitution amount. Furthermore, fines that might have gone to the State may instead go to the victim in the form of restitution. Defendants benefit because they may avoid a greater incarceration term, fine amount, or both.

¶ 20 This is not to say that a defendant is limited in challenging the restitution amount proffered by the State. In the instant action, Weeks could have presented evidence challenging the figures cited in the presentence report. See State v. Starnes, 841 P.2d 712, 715 (Utah Ct.App.1992) (explaining that rule 1101(b)(3) was designed to allow more evidence, not less, and that the trial court erred when it barred the defendant from presenting witnesses on his behalf at a restitution hearing). Weeks elected, however, to simply attack the report’s evi-dentiary foundation. Moreover, as stated above, whether the presentence report had a proper evidentiary foundation is irrelevant. The dispositive question is whether the sentencing court correctly concluded that the restitution amount was justified on the basis of the evidence presented to it.

¶ 21 We hold that the presentence report sufficiently supported the sentencing court’s conclusion, especially in light of the fact that it was the only evidence presented at the restitution hearing. Indeed, regardless of the applicable burden of proof incumbent upon the State, the only evidence presented to the sentencing court showed that the restitution amount was justified. Because Weeks presented no evidence rebutting the presen-tence report and merely challenged the report’s evidentiary foundation, we see no basis on which to conclude he was denied a full healing. Nor do we see a basis for his argument that there was a violation of the due process clause of either the United States Constitution or the Utah Constitution.

IV. WEEKS WAIVED HIS RIGHT TO CONTEST THE FACTORS THE SENTENCING COURT REFERENCED ON THE RECORD IN IMPOSING RESTITUTION

¶ 22 Weeks next argues that the sentencing court erred in ordering restitution because it failed to reference on the record each factor listed in subsections 76-3-201(8)(b) and (c) of the Utah Code. Specifically, he claims that subsection 76 — 3—201(4)(d)(i) declares that “the court Shall make the reasons [for its restitution] decision a part of the court record,” Utah Code Ann. § 76-3-201(4)(d)(i) (1999), and' that this language requires a sentencing court to explicitly note on the record each of the factors listed in subsections 76-3-201(8)(b) and (c). Weeks failed to object on this ground at the restitution hearing, however, opting instead to merely challenge the evidentiary weight of the presentence report. The sentencing court thus had no opportunity to address its alleged failure to reference on the record all of the statutory factors listed in subsection 76-3-201(8). Accordingly, that argument has been waived and cannot be presented on appeal. Cf. Crookston v. Fire Ins. Exch., 817 P.2d 789, 800-01 (Utah 1991) (concluding that where an insurance company did not raise an argument before the trial court, the issue could not be presented on appeal).

¶ 23 In reaching this conclusion, we note that it was not plain error for the sentencing court to impose a restitution amount in this case without referencing on the record each factor listed in section 76-3-201 of the Utah Code. That section only requires sen-fencing courts to (1) consider the factors listed in subsections (8)(b) and (c), see Utah Code Ann. § 76-3-201(8)(b) to (c) (1999), and (2) “make the reasons for [its] decision a part of the court record,” see id. § 76-3-201(4)(d)(i). As such, there is no mandatory requirement in the language of the statute that a sentencing court make a record setting forth its reasoning as to each of the factors in its restitution, order, only that it consider each factor and make a record setting forth the reasons for its decision. In other words, the court must consider all of the factors, but need make a record only of the reasons on which it relied in reaching its conclusion.

¶ 24 Moreover, in contrast to Weeks’s assertion, our research reveals no Utah case that interprets subsection 76-3-201(4)(d)(i) as requiring a court to reference on the record each of the factors listed in subsections 76-3-201(8)(b) and (c). Weeks contends that State v. Robertson, 932 P.2d 1219 (Utah 1997), imposes such a requirement. We disagree for two reasons. First, although that case admittedly stated that a sentencing court had to consider each of the statutory factors listed in the precursor to subsection 76-3-201(8) and explicitly note “on the record the reasons for the decision it reached, reflecting the detailed factors listed in the statute,” id. at 1234, it does not stand for the proposition that a sentencing court must make findings on the record as to each of the statutory factors. Indeed, after making its initial pronouncement that the factors relied on by the sentencing court had to be included in the record, the Robertson court proceeded to create an exception to that requirement. Specifically, the Robertson court declared that “[although the [sentencing] court did not make findings relating to Robertson’s financial condition part of the record we can reasonably assume that the court actually made such findings.” Id. at 1235 (footnote added). Thus, despite some language to the contrary, we read Robertson as permitting an appellate court, if doing so would be reasonable, to assume that the sentencing court considered the factors set forth in subsection 76-3-201(8).

¶ 25 Second, even if our conclusion that Robertson permits an appellate court to assume such findings were made is incorrect, Robertson is, at best, ambiguous regarding whether the factors listed in subsection 76-3-201(8) have to be referenced on the record, thereby precluding any plain error on the part of the sentencing court. Indeed, for plain error to exist, we must determine, among other things, that the error should have been “obvious” to the sentencing court. State v. Brown, 853 P.2d 851, 853 (Utah 1992). An error cannot be “obvious” to a sentencing court, however, where the alleged basis for that error is an ambiguous appellate decision. Accordingly, neither the relevant statutory subsections nor any prior case unambiguously defined what the sentencing court was required to include in its restitution order. The sentencing court therefore did not commit plain error, and Weeks is precluded from raising this argument for the first time on appeal.

CONCLUSION

¶26 We conclude that Weeks received a full restitution hearing within the meaning of subsection 76-3-201(4)(e) of the Utah Code because the rules of evidence do not apply to restitution hearings. It therefore makes no difference whether the presentence report relied on by the sentencing court had an appropriate evidentiary basis. The relevant inquiry is whether there was sufficient evidence to support the sentencing court’s conclusion. Because the presentence report was the only evidence offered at the restitution hearing, we conclude that sufficient evidence existed.

¶ 27 We further conclude that Weeks waived his right to contest the factors the sentencing court referenced on the record in reaching its decision. He did so because he failed to object on this ground at the restitution hearing and the sentencing court did not commit plain error by failing to reference on the record each factor listed in subsections 76-3-201(8)(b) and (c) of the Utah Code. We therefore affirm.

¶ 28 Chief Justice DURHAM, and Justice WILKINS concur in Associate Chief Justice DURRANT’s opinion.

HOWE, Justice,

dissenting:

¶ 29 I dissent. The defendant has not been afforded the “full hearing” which section 76-3-201(4)(e) (1999) guarantees him.

¶ 30 The majority gives no effect to the statutory right of the defendant to a “full hearing” regarding the amount of restitution he should be ordered to pay. Instead, the majority lumps the statutory right to a “full” restitution hearing together with the sentencing hearing and then declares that under rule 1101(b)(3) of the Utah Rules of Evidence, evidentiary rules do not apply to sentencing proceedings. The majority relies on State v. Sanwick, 713 P.2d 707, 709 (Utah 1986), where we held that under rule 1101(b)(3) evidentiary rules do not apply to sentencing proceedings. However, in that case this court was not dealing with a restitution hearing, but with the sentencing of the defendant after he pleaded guilty to one count of rape, which charged him with using force, duress, violence, intimidation, coercion, menace, or threat of harm. When he was sentenced, he requested that he be permitted to confront his victims and to cross-examine them to refute allegations of violence during the commission of the crime. He also complained of the admission of hearsay evidence. The trial court denied his request, and on appeal to this court, we affirmed on the basis that the Rules of Evidence in general and the rules on hearsay exclusions, in particular, are inapplicable in sentencing proceedings. Rule 1101(b)(3). Sanwick did not involve restitution nor the statute that guarantees a “full hearing” before a restitution judgment can be imposed.

¶ 31 The instant case presents a far different situation. Here, the defendant seeks to avail himself of the right to a “full hearing” on the amount of restitution he shall be ordered to pay. This is a statutory right and is not governed by rule 1101(b)(3). The legislature provided for a “full hearing” because the amount of restitution which is determined and ordered to be paid becomes a legal civil judgment enforceable as any other civil money judgment. See Utah Code Ann. § 76-3-201(4)(a)(iv). The judgment “constitutes a lien when recorded in a judgment docket and shall have the same effect and is subject to the same rules as a judgment for money in civil actions.” Id. at § 76-3-201(4)(a)(vi). Interest accrues from the time of sentencing. Id. If the defendant fails to obey a court order for payment of restitution and collection is pursued by civil process, the victim shall be entitled to recover reasonable attorney fees. Id. at § 76-3-201(4)(a)(v). Even the death of the criminal defendant does not abate the restitution judgment. See State v. Christensen, 866 P.2d 533, 535 (Utah 1993) (prison term and fine abate on death of defendant but restitution judgment survives).

¶ 32 Because the restitution ordered by the trial court becomes an enforceable money judgment against the defendant, bearing interest, fully enforceable and collectable with the possible addition of attorney fees, and does not abate on the death of the defendant, the legislature properly provided for a “full hearing” before such a judgment can be entered. It is incongruous to hold that a money judgment of this nature could be entered against a criminal defendant without according him the same due process that any other debtor would receive in a civil court. Rule 1101(b)(3) should not be used as a basis for depriving a defendant of his right to due process before a money judgment is entered against him. The statute that guarantees the defendant a “full hearing” must necessarily trump the general rule contained in evidence rule 1101(b)(3) which governs other aspects of sentencing, apart from the order of restitution, as addressed in State v. Sanwick. The statute’s mandate that a defendant be given a “full hearing” on the issue of restitution can be contrasted with the requirement for sentencing found in rule 22 of the Utah Rules of Criminal Procedures which merely requires that “the court shall set a time for imposing sentence.”

¶ 33 The majority declares that the statutory right to a full hearing does not require that the state present competent evidence that would be admissible at trial and concludes that the restitution judgment may rest entirely on hearsay. The majority further declares that there is “wisdom” in not applying evidentiary rules to restitution hearings because judges need flexibility in determining whether to impose restitution in lieu of a fine or an increased prison term. I cannot subscribe to that reasoning since every person, whether in civil court or criminal court has the right to the assurance that any personal money judgment against him or her is founded on competent evidence. Simply put, due process must be accorded in obtaining a restitution judgment.

¶ 34 Adhering to the rules of evidence in a restitution hearing will not impose a burden on trial court judges. A defendant will request a full hearing in only those few instances in which the defendant questions the accuracy of amounts in the presentence report. The hearing need not be held at the time of sentencing, but must be requested at that time. The victim can appear at the hearing and testify as to his or her loss and then be cross-examined by the defendant. The majority would not require the victim to appear and testify, but instead would require the defendant to refute the accuracy of the amounts claimed in the presentence report. I would not shift that burden to the defendant since it is counter to the procedure for money judgment in civil courts. Additionally, the defendant usually does see the pre-sentence report before sentencing. If he questions the amount of damage claimed and requests a hearing, he may be incarcerated at that time and have no way or means to interview the victim as to the accuracy of his or her claim of damage.

¶ 35 The instant case exemplifies the rationale for the' legislature’s intent to guarantee the defendant the right to request a “full hearing” where only competent evidence would be admitted in establishing the amount of the restitution judgment to be imposed against him. In the instant case, the only evidence before the trial court was the pre-sentence report. The prosecution made the following comment to the court concerning the report:

I have the statements in the report saying that Mr. Hatten lost personal items and repairs that totaled $1,500, and more repair payments from Mr. Garcia would indicate that personal items of $500 were missing, a $500 deductible was paid, and an additional $500 to repair and painting of the car to make it match. Those don’t sound like unreasonable sums, and they sound-even if they are estimates, they’re probably only pennies off or probably short, so ... as to this type of conduct.
I’d ask the Court to order that the restitution remain based upon the findings of the presentence report, and if there are further adjustments then the board of pardons might be the right place to take care of these matters.

The prosecution’s statement that “those don’t sound like unreasonable sums, and they sound — even if they are estimates, they’re probably only pennies off or probably short” is so punctuated with uncertainty, so rife with equivocation, that it calls into serious question the accuracy and reliability of the amounts in the presentence report. The suggestion that the Board of Pardons “might be the right place” to make “further adjustments” to the restitution judgment is a novel idea, but not founded on any legal authority. Clearly, the Board has no power to alter docketed money judgments.

¶ 36 I would reverse the court of appeals and instruct it to remand this ease to the trial court for the purpose of according the defendant his statutory right to a full hearing.

¶ 37 Justice RUSSON concurs in Justice HOWE’s dissenting opinion.

      . Regarding subsections 76-3-201(4)(e), 76-3-201(4)(d)(i), and 76-3-20l(8)(b) and (c), we reference the Utah Code as it existed in 1999. The Utah Legislature has since repealed these subsections because they duplicated several sections of the Crime Victims Restitution Act. Since no substantive modifications were made to the provisions, however, our analysis remains the same. The subsections were renumbered as follows: 76-3-20 l(4)(e) to 77-38a-302(4), 76-3-201(4)(d)(i) to 77-38a-302(3), and 76-3-201(8)(b) and (c) to 77-38a-302(5)(b) and (c).

      . We note that the sentencing court sentenced Weeks on all seven convictions on September 10, 1999. Only the punishment imposed on three of those convictions is relevant to this appeal, however.

      . Subsection 76-3-201(4)(e) of the Utah Code stated that "[i]f the defendant objects to the imposition, amount, or distribution of the restitution, the court shall at the time of sentencing allow the defendant a full hearing on the issue.” Utah Code Ann. § 76-3-201(4)(e) (1999).

      . Subsection 76 — 3—201 (4)(d)(i) of the Utah Code provided as follows: "If the court determines that restitution is appropriate or inappropriate under this subsection, the court shall make the reasons for the decision a part of the court record.” Utah Code Ann. § 76-3-20l(4)(d)(i) (1999).

      . In pertinent part, subsection 76-3-201(8) of the Utah Code declared as follows:
      (b) In determining the monetary sum and other conditions for complete restitution, the court shall consider all relevant facts, including: (i) the cost of the damage or loss if the offense resulted in damage to or loss or destruction of property of a victim of the offense; (ii) the cost of necessary medical and related professional services and devices relating to physical, psychiatric, and psychological care, including nonmedical care and treatment rendered in accordance with a method of healing recognized by the law of the place of treatment; the cost of necessary physical and occupational therapy and rehabilitation; and the income lost by .the victim as a result of the offense if the offense resulted in bodily injury to a victim; and (iii) the cost of necessary funeral and related services if the offense resulted in the death of a victim.
      (c) In determining the monetary sum and other conditions for court-ordered restitution, the court shall consider the factors listed in

        Subsection (8)(b) and: (i) the financial resources of the defendant and the burden that payment of restitution will impose, with regard to the other obligations of the defendant; (ii) the ability of the defendant to pay restitution on an installment basis or on other conditions to be fixed by the court; (iii) the rehabilitative effect on the defendant of the payment of restitution and the method of payment; and (iv) other circumstances which the court determines make restitution inappropriate.
      Utah Code Ann. § 76-3-20l(8)(b) to (c) (1999).

      . In concluding a written finding was not required for the factors listed in subsection 76-3-201(8), the court of appeals noted that this Court’s decision in State v. Robertson, 932 P.2d 1219, 1234-35 (Utah 1997), permitted an appellate court to reasonably assume such findings were made. Weeks,2000 UT App 273 at V 17, 12 P.3d 110,.

      . The presentence report on which the sentencing court based its restitution decision declared that one victim incurred $7,604.35 in total damages and the other victim sustained $1,500.00 in damages.
      In addition, the presentence report declared (1) that Weeks's "only apparent assets [were] his youth and support from his family,” (2) that he had "no debts,” and (3) that he had “no income [or] expenses.” It also summarized his employment history and noted that he had "become a veritable crime wave as an adult” who "displayed a disregard for the laws of society.” It then recommended that the court sentence Weeks to concurrent terms and require him "to pay a $625 fine, $532 surcharge, full restitution, and [a] $200 recoupment fee upon parole.”

      . Justice Howe contends that the "statute that guarantees the defendant 'a full hearing’ must necessarily trump the general rule contained in ... 1101(b)(3)” of the Utah Rules of Evidence. We disagree for four reasons. First, the statute referenced by Justice Howe is silent regarding the applicability of the rules of evidence to restitution hearings. See Utah Code Ann. § 76-3-201 (1999) (current version at Utah Code Ann. 77-38a-302 (Supp.2002)). Second, a restitution hearing is, as Justice Howe himself indicates, an "aspect[] of sentencing.” Third, rule 1101(b)(3) specifically states that the rules of evidence are inapplicable to sentencing proceedings. Utah R. Evid. 1101(b)(3). Finally, Justice Howe’s approach would create an anomalous result. Specifically, a defendant would receive greater evi-dentiary protection regarding the imposition of a restitution award than with respect to the imposition of a prison term.

      . The statutory language in existence when Robertson was decided is substantially similar to the language applicable to the instant action. The only significant difference for our purposes is that section 76-3-201 was later reordered and the list of factors that the sentencing court must consider was expanded.

      . The financial status of the defendant is one of the factors that a sentencing court must consider before ordering restitution. Utah Code Ann. § 76 — 3—201 (8)(c)(i) (1999) (declaring that the court shall consider "the financial resources of the defendant”).

      . If we did construe Robertson in the manner suggested by Weeks, a sentencing court would have to reference on the record the specific items described in subsections 76 — 3—201(8)(b) and (c) of the Utah Code as well as every other relevant fact. Sentencing courts would incur this burdensome obligation because subsection 76-3-201 (8)(b) expressly states that in ordering restitution, “the court shall consider all relevant facts.” Utah Code Ann. § 76-3-201(8)(b) (1999).
      To the extent Robertson stands for such a proposition, we expressly disavow its reasoning. In our view, subsection 76 — 3—201 (4)(d)(i) does not require that a sentencing court reference on the record the factors listed in subsections 76-3-201(8)(b) and (c). Rather, it merely states that the sentencing court set forth the reasons for its restitution decision in the record.