author: Justice Pearce, opinion of the Court:

text:
    STATE of Utah, Appellee, v. Zane Charles SANDERS, Appellant.
    No. 20160300
    Supreme Court of Utah.
    Filed June 24, 2019
    Sean D. Reyes, Att'y Gen., Karen A. Klucznik, Asst. Solic. Gen., Salt Lake City, for appellee
    Andrea J. Garland, Salt Lake City, for appellant
    Justice Pearce authored the opinion of the Court in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas, and Justice Petersen joined.
   Justice Pearce, opinion of the Court:

INTRODUCTION

¶ 1 Zane Charles Sanders cannot legally possess a firearm because the Utah Code prohibits any individual convicted of a felony from, among other things, "intentionally or knowingly" having a firearm in his possession. UTAH CODE § 76-10-503(1)(b), (3) (2014). A jury convicted Sanders of violating section 503 after police officers responding to a domestic complaint found Sanders in his backyard carrying a rifle.

¶ 2 Sanders claimed that when the police officers arrived at his home, he was moving his girlfriend's son's firearm back into the house. Sanders argued that he was only transporting the rifle because it had been left in the backyard, which abutted an elementary school. He asked the district court to instruct the jury that it could acquit him if it found that he was innocently possessing the weapon. The district court refused. Sanders appeals, arguing that refusal was error. We disagree with Sanders and affirm.

BACKGROUND

¶ 3 At the time of his arrest, Sanders lived with his Girlfriend. Girlfriend's teenage son, M.M., owned three firearms that he used for hunting. The firearms were stored, unsecured, in the bedroom closet Sanders and Girlfriend shared. Ammunition for those firearms was supposed to be stored separately in M.M.'s bedroom.

¶ 4 One evening, Sanders learned that M.M. had left his hunting rifle outside, unattended, in the backyard. Upset, Sanders argued with Girlfriend about M.M.'s dereliction at a volume that prompted a concerned neighbor to call the police.

¶ 5 The police responded to the complaint. When they arrived, an officer heard a man yell Girlfriend's name. The officer then saw Sanders standing on the back porch holding a rifle. The officer pulled out his flashlight and demanded to see Sanders's hands. Sanders set the rifle down, raised his hands, and said, "I'm not armed."

¶ 6 Sanders refused to talk to the officer and informed him in salty, if somewhat unoriginal, language that he needed a warrant to enter the house. Sanders then went inside, leaving the rifle on the back porch. Sanders had spoken with slurred speech, and the officers believed he was intoxicated. The officers then spoke with Girlfriend. Based on her comments, the officers concluded that Girlfriend's young daughter might be inside. The officers conducted a safety sweep of the home to ensure that the child was safe. During the sweep, the officers observed ammunition in a bedroom and a magazine for a rifle in the living room.

¶ 7 After the safety sweep, the officers ran a records check and discovered that Sanders was a restricted person; that is, because Sanders had been convicted of a felony, Utah law restricts him from possessing a firearm. The officers went to the back porch and collected the rifle-which, as it turned out, was fully loaded. The officers then left the home. A few days later, Sanders called the police department and asked if he could get the rifle back.

¶ 8 Two weeks after the initial encounter, the officers returned with a warrant to retrieve firearms, dangerous weapons, ammunition, and any items related to firearms from Sanders's home. Sanders again asked the officers to return the rifle. And Girlfriend told the officers that additional firearms belonging to M.M. were in her bedroom closet. The officers arrested Sanders.

¶ 9 During their search of the home, the officers confiscated two unsecured firearms, multiple magazines, ammunition, a machete, and a sword. Additionally, the officers found a small amount of marijuana.

¶ 10 The State charged Sanders with three counts of possession of a firearm by a restricted person, third degree felonies in violation of Utah Code section 76-10-503(3).

¶ 11 Before trial, Sanders requested an innocent possession jury instruction. Sanders's requested instruction would have told the jury that a restricted person is not guilty of the offense of possession of a firearm "if (1) the firearm was [ob]tained innocently and held with no illicit or illegal purpose, and (2) the possession of the firearm was transitory; that is, that the defendant took adequate measures to rid himself of possession of the firearm as promptly as reasonably possible."

¶ 12 The State opposed the jury instruction. The State argued that the felon-in-possession statute does not leave room for an innocent possession defense. The State further argued that even if there were such a defense, the facts did not support its application in this case because Sanders's possession was not "transitory."

¶ 13 The district court denied Sanders's request. The court ruled that it did not "need to decide whether or not the innocent possession defense is available here" because, based on the evidence presented at trial, there was no "factual basis to give [the] instruction." The court reasoned that jurisdictions that recognize the defense require the "defendant to demonstrate both that he intended to turn the weapon over to the police and that he was pursuing such an intent with immediacy and through a reasonable course of conduct," which Sanders did not do.

¶ 14 The jury convicted Sanders on one count of possession of a firearm by a restricted person. The jury acquitted him of the two additional charges of possession of a firearm by a restricted person, which were based on a theory that Sanders constructively possessed the firearms that the police officers found in his home. Sanders appealed the conviction. The court of appeals certified the case to this court.

STANDARD OF REVIEW

¶ 15 "Whether a jury instruction correctly states the law presents a question of law which we review for correctness." State v. Houskeeper , 2002 UT 118, ¶ 11, 62 P.3d 444.

ANALYSIS

¶ 16 Sanders asserts that the district court's refusal to instruct the jury on an innocent possession defense constitutes reversible error. Sanders contends that: (1) the defense is consistent with the felon-in-possession statute; (2) the defense is consistent with our precedent; and (3) without the defense, Utah law will criminalize innocent behavior in a fashion that will generate absurd results. The State argues that neither the statute nor case law supports an innocent possession defense and that the Legislature could have rationally intended to criminalize Sanders's conduct.

I. The Statute Does Not Support an Innocent Possession Defense

¶ 17 To decide whether the felon-in-possession statute includes an innocent possession defense, we begin our inquiry with the statute itself. The point of statutory interpretation is to understand what the Legislature intended. Bagley v. Bagley , 2016 UT 48, ¶ 10, 387 P.3d 1000. Because " '[t]he best evidence of the legislature's intent is the plain language of the statute itself,' we look first to the plain language of the statute." Id. (alteration in original) (citation omitted). As we examine the text, " '[w]e presume that the legislature used each word advisedly.' " Ivory Homes, Ltd. v. Utah State Tax Comm'n , 2011 UT 54, ¶ 21, 266 P.3d 751 (citation omitted).

¶ 18 Of course, "we do not view individual words and subsections in isolation; instead, our statutory interpretation 'requires that each part or section be construed in connection with every other part or section so as to produce a harmonious whole.' " Penunuri v. Sundance Partners, Ltd. , 2013 UT 22, ¶ 15, 301 P.3d 984 (emphasis omitted) (citation omitted). "Thus, we 'interpret [ ] statutes to give meaning to all parts, and avoid[ ] rendering portions of the statute superfluous.' " Id . (alterations in original) (citation omitted).

¶ 19 When a party asks us to recognize a defense to a crime, we must remember that "it is for the legislature to define affirmative defenses to crimes under the Utah Code." State v. Drej , 2010 UT 35, ¶ 18, 233 P.3d 476. The Utah Criminal Code governs "the construction of, the punishment for, and defenses against any offense" the Code defines. UTAH CODE § 76-1-103(1) (2014) (Emphasis added). Accordingly, "courts of this state 'are bound by the legislature's decision to categorize' and define affirmative defenses." Drej , 2010 UT 35, ¶ 18, 233 P.3d 476 (citation omitted). And the Code provides "a number of general defenses as well as numerous specific defenses." State v. Gardiner, 814 P.2d 568, 574 (Utah 1991).

¶ 20 The Utah Criminal Code does not contain an express innocent possession defense-either as a general defense, or within the specific provision under which Sanders was convicted. A jury convicted Sanders of violating section 76-10-503(3), which provides:

(3) A Category II restricted person who intentionally or knowingly purchases, transfers, possesses, uses, or has under the person's custody or control:
(a) any firearm is guilty of a third degree felony; or
(b) any dangerous weapon other than a firearm is guilty of a class A misdemeanor.

¶ 21 Section 503(7) then sets forth the specific defense applicable to that provision, under which a person may transfer a firearm within ten days of becoming a restricted person, but may not "use," "purchase," or "possess[ ] on the person" the firearm during that period:

(7)(a) It is an affirmative defense to transferring a firearm or other dangerous weapon by a person restricted under Subsection (2) or (3) that the firearm or dangerous weapon:
(i) was possessed by the person or was under the person's custody or control before the person became a restricted person;
(ii) was not used in or possessed during the commission of a crime ...
(iii) is not being held as evidence by a court or law enforcement agency;
(iv) was transferred to a person not legally prohibited from possessing the weapon; and
(v) unless a different time is ordered by the court, was transferred within 10 days of the person becoming a restricted person.
(b) Subsection (7)(a) is not a defense to the use, purchase, or possession on the person of a firearm or other dangerous weapon by a restricted person.

UTAH CODE § 76-10-503(7).

¶ 22 Thus, section 503 evinces the Legislature's thinking on the limited circumstance in which an individual may lawfully possess a firearm after becoming a restricted person. Tellingly, the Legislature did not create a law that allows, as Sanders's instruction proposed, that a restricted person may possess a firearm "if (1) the firearm was [ob]tained innocently and held with no illicit or illegal purpose, and (2) the possession of the firearm was transitory; that is, that the defendant took adequate measures to rid himself of possession of the firearm as promptly as reasonably possible."

¶ 23 Acknowledging that section 76-10-503 does not explicitly contain his asserted innocent possession defense, Sanders nevertheless claims that it exists implicitly in that statute. Sanders argues that we should read the statutory term "possess" to exclude innocent possession, as he defines that phrase. In Sanders's view, the statute does not "clarify whether the term 'possess' ... includes ... temporary possession for the purpose of returning a [firearm] to its lawful owner." We disagree.

¶ 24 The Utah Criminal Code provides a general definition of "possess," which "means to have physical possession of or to exercise dominion or control over tangible property." UTAH CODE § 76-1-601(10). Section 503 prohibits "possession" of a firearm by a restricted person, and section 76-10-503(7) contains the Legislature's decision about the specific circumstance in which a restricted person may engage in behavior that would otherwise violate the statute. The Legislature appears to have concluded that a restricted person may, under certain conditions, transfer a firearm-but only within ten days of becoming a restricted person. See UTAH CODE § 76-10-503(7)(a). And that exception does not apply to "use," "purchase," or "possession on the person" of the firearm. Id. § 76-10-503(7)(b).

¶ 25 As noted above we do not view individual words, such as "possess," in isolation, but in the context of the section, chapter, and code in which they are included. We also presume that the language chosen by the Legislature is meaningful, and that "the expression of one [term] should be interpreted as the exclusion of another." State v. Stewart , 2018 UT 24, ¶ 13, 438 P.3d 515 (alteration in original) (citation omitted) (internal quotation marks omitted). Moreover, we "will not infer substantive terms into the text that are not already there. Rather, the interpretation must be based on the language used, and [we have] no power to rewrite the statute to conform to an intention not expressed."

I.M.L. v. State , 2002 UT 110, ¶ 25, 61 P.3d 1038 (alteration in original) (citation omitted) (internal quotation marks omitted).

¶ 26 Sanders's proposed innocent possession defense would rewrite section 503 to permit a restricted person to "possess[ ] on the[ir] person" a firearm, more than ten days after becoming a restricted person, for transitory purposes, such as returning the firearm to its lawful owner. For the reasons set forth above, we presume that the Legislature considered when a restricted person might possess a firearm and specified these circumstances in section 76-10-503(7) as well as in the Code's general defenses.

¶ 27 In support of his position, however, Sanders points us to the legislatively defined purposes of the Utah Criminal Code. As Sanders points out, " Utah Code section 76-1-106 directs a court to 'construe[ ] [criminal statutes] according to the fair import of their terms to promote justice and to effect the objects of the law and general purposes of [s]ection 76-1-104.' " (quoting UTAH CODE § 76-1-106.) Sanders also directs us to the statement that the Code shall be construed to "safeguard conduct that is without fault from condemnation as criminal." UTAH CODE § 76-1-104(2).

¶ 28 And we sometimes resort to these principles when addressing questions of statutory interpretation regarding the Utah Criminal Code. See, e.g. , State v. Perea , 2013 UT 68, ¶ 115, 322 P.3d 624 (reasoning that sections 76-1-104 and 76-1-106 "make clear that a sentencing court is to consider all the evidence before it-the totality of the circumstances-in imposing a sentence that is proportionate to the crime and the culpability of the defendant").

¶ 29 But the Code's general statements of purpose do not support Sanders's proposed innocent possession defense. To the contrary, under the Code's guidelines, we are obliged to construe section 503 to "effect the objects of the law and general purposes of [s]ection 76-1-104," UTAH CODE § 76-1-106, which include "forbid[ding] and prevent[ing] the commission of offenses" as the Legislature has defined them, id. § 76-1-104(1). As Sanders correctly notes, we interpret the Code to safeguard conduct that is without fault. See id. § 76-1-104(2). Whether the brief possession of a firearm by a convicted felon is, generally speaking, conduct "without fault" is a legislative judgment, and one the Legislature has answered in the negative. As a result, we do not conclude that the felon-in-possession statute implicitly provides an innocent possession defense.

II. Our Case Law Does Not Require an Innocent Possession Defense

¶ 30 Sanders next argues that two of our cases support the conclusion that the felon-in-possession statute contains an implicit innocent possession defense. Sanders first points to State v. Davis to contend that we have already recognized an affirmative defense for a restricted person who was "innocent[ly] handling" a weapon. 711 P.2d 232, 233 (Utah 1985) (per curiam). The State asserts that Davis does not "support the broad innocent possession defense" Sanders proposes and, even if it did, "this Court should overrule" Davis in that respect. We agree with the State.

¶ 31 In Davis , the defendant contended that an additional jury instruction should have been given regarding the definition of "possess," as that term is used in section 503. Davis , 711 P.2d at 233-34. Davis had been convicted of unlawfully possessing a firearm in violation of that provision, following the district court's instruction to the jury that: "possession, custody or control of a firearm [is] more than the innocent handling of the weapon, but require[s] a willing and knowing possession with the intent to control its use or management." Id. at 233 (internal quotation marks omitted). On appeal, neither Davis nor the State asserted this instruction was erroneous. With respect to whether an additional instruction-addressing the same topic-was required, we concluded it was not. Id. at 233-34 ("Defendant's requested additional paragraph to the instruction was an unnecessary embellishment of an otherwise adequate statement. It was not error for the trial court to decline its inclusion in the instructions.").

¶ 32 We reached that conclusion in a quaint two-page per curiam opinion. Along the way, we commented that we "s[aw] no error in the jury instruction ... explaining the intent and conduct necessary to sustain a finding of possession by defendant." Id. at 233. The instruction did "not create confusion or misunderstanding as to the statutory elements or mens rea of the crime." Id. (Emphasis omitted). And it allowed Davis to argue his theory that he only "innocent[ly] handl[ed]" the weapon. Id.

¶ 33 Sanders reads our opinion as endorsing Davis's argument that he could not be convicted if he innocently handled the firearm. We are not persuaded, however, that it is the correct reading of Davis nor that Davis dictates our resolution of this matter.

¶ 34 As an initial matter, it appears the question of an innocent possession affirmative defense was never squarely presented to us. Davis did not hold that Utah law recognized an innocent possession defense. Rather, it reasoned that the jury instruction was not erroneous because it properly "explain[ed] the intent and conduct necessary to sustain a finding of possession." Id . Davis observed that the instruction did "not create confusion or misunderstanding as to the statutory elements or mens rea of the crime" and noted that it "allowed defendant to argue his theory of the case that his was only an 'innocent handling of the weapon,' " meaning that he did not have an "intent to control its use or management." Id. (Emphasis omitted). Therefore, Davis does not establish any precedent with respect to an innocent possession affirmative defense.

¶ 35 Even assuming that Davis speaks to the issue, the precedential value of such a holding would be minimal and makes this portion of Davis susceptible to being overruled under the rubric that Eldridge v. Johndrow , 2015 UT 21, 345 P.3d 553, outlines for revisiting our precedents. And the State has shouldered its burden of demonstrating that the portion of Davis that could be read to speak to the innocent possession defense should be overturned.

¶ 36 "Because stare decisis is so important to the predictability and fairness of a common law system, we do not overrule our precedents 'lightly.' " Eldridge , 2015 UT 21, ¶ 21, 345 P.3d 553 (citation omitted). "However, our presumption against overruling precedent is not equally strong in all cases." Id. ¶ 22. This court has "identified two broad factors that distinguish between weighty precedent and less weighty ones." Id. Those factors are "(1) the persuasiveness of the authority and reasoning on which the precedent was originally based, and (2) how firmly the precedent has become established in the law since it was handed down." Id. The State contends that we should overrule Davis under the Eldridge factors. We agree. To the extent that Davis established precedent for an innocent possession affirmative defense, we overrule it.

¶ 37 "The first factor in determining how much deference a precedent should be afforded is the persuasiveness of the authority and reasoning on which the precedent is based." Id. ¶ 24. As the State argues, Davis 's analysis does not inspire much respect. In reaching our conclusion, we remarked on the law regarding possession, but we never referenced section 503's text, parsed the Utah Criminal Code's general definition of "possess," see UTAH CODE § 76-1-601(10), or analyzed whether the plain language left room for an affirmative defense. We did not even nod at the cases from other jurisdictions that have wrestled with the topic. Simply stated, if Davis recognized an innocent possession defense, it appears to have done so accidentally.

¶ 38 Even when we acknowledge that our reasoning is weak, or that we would decide a case differently if we were writing on a tabula rasa, we are still hesitant to overrule precedent if it has become "firmly established in Utah law." Eldridge , 2015 UT 21, ¶ 33, 345 P.3d 553. That is not the case here. To determine if an opinion has been firmly established as precedent, we consider a wide variety of factors "including the age of the precedent, how well it has worked in practice, its consistency with other legal principles, and the extent to which people's reliance on the precedent would create injustice or hardship if it were overturned." Id. ¶ 22.

¶ 39 The State argues that even though we decided Davis thirty-three years ago, it has never been cited in a written opinion for the proposition that the felon-in-possession statute permits an innocent possession defense. Rather, Davis is typically cited for the proposition that a defendant's intent or state of mind can be proven by inferences based on his conduct and the surrounding circumstances. See, e.g. , State v. Garcia-Mejia , 2017 UT App 129, ¶ 30, 402 P.3d 82.

¶ 40 Moreover, Davis did not rely on any "precursors in Utah law," see Eldridge, 2015 UT 21, ¶ 34, 345 P.3d 553, with respect to an innocent possession defense, see Davis , 711 P.2d at 233-34. As noted above, we made no effort to tie Davis to the debate in other jurisdictions about an innocent possession defense. And none of the cases we cite in Davis spoke to the creation of an affirmative defense. Id. at 233.

¶ 41 Finally, in deciding whether to overturn precedent, we consider whether doing so would "undermine the public's substantial reliance upon an established legal principle." Eldridge , 2015 UT 21, ¶ 35, 345 P.3d 553 (citation omitted). However, when "a doctrine has not been necessary to the outcome of many cases, it is unlikely that the public has relied on it in any substantial way." Id. ¶ 36. Such is the case here.

¶ 42 The Eldridge factors thus weigh in favor of overruling that portion of Davis . Therefore, to the extent that Davis can be read to establish an innocent possession affirmative defense, we overrule it.

¶ 43 Sanders's next argument presents a more compelling, if ultimately unavailing, theory. Sanders contends that because we found that the Controlled Substances Act (Act), UTAH CODE §§ 58-37-1 et seq., contained an implicit innocent possession defense, State v. Miller , 2008 UT 61, 193 P.3d 92, we should find one here. And Sanders has something of a point-the cases present similar questions of statutory construction and, without further inquiry, we might expect to reach the same result here as we did in Miller .

¶ 44 We nevertheless conclude that Miller does not control the outcome in this case. Important textual differences preclude our reaching the same result with respect to both statutes. And we recognize that Miller addressed a question relating specifically to the possession of controlled substances, and we see no compelling reason to extend Miller 's reasoning to the felon-in-possession statute.

¶ 45 In Miller , the defendant was convicted of possessing a controlled substance in violation of the Act. 2008 UT 61, ¶ 1, 193 P.3d 92. He appealed, arguing that the jury should have been instructed on his proposed defense of innocent possession. Id. We examined the definition of "possess" that applied to the Act, see id. ¶ 19 n.14 (citing UTAH CODE § 58-37-2(1)(ii) ), and concluded that its broad terms did not "clarify whether the term 'possess[ ]' ... includes ... temporary possession for the purpose of returning a controlled substance to its lawful owner," id. ¶ 19. In other words, we found no language in the Act directly addressing the question of temporary or transitory possession.

¶ 46 Seeking further guidance, we noted our responsibility under the Utah Criminal Code to construe provisions "according to the fair import of their terms to promote justice" and to "safeguard conduct that is without fault from condemnation." Id. ¶ 20 (emphases omitted) (quoting UTAH CODE §§ 76-1-104, -106). We then recited a number of scenarios in which we could see the Act sweeping in "conduct that is without fault." Id. ¶¶ 20-21. For example, we hypothesized about a "daughter who no longer lives at home but who picks up her sick mother's prescription medication and drives it to her mother's home," and a "house guest who inadvertently leaves a prescription bottle of pills" in a friend's house, creating a situation in which the friend "could do nothing short of immediately fleeing her home to avoid 'possessing' the pills." Id. ¶ 21. In light of "a myriad of absurd prosecutorial possibilities," we concluded that the Act implicitly included an innocent possession defense. Id.

¶ 47 As noted above, the similarities between the Act and the felon-in-possession statute could tempt us to simply apply Miller 's reasoning here. But our task is not that simple-we must interpret section 503 as the Legislature intended. To do so, we construe the statute according to its plain language, giving meaning to its terms and reading those terms in context. Ultimately, the differences in the statutes prove more powerful than their commonalities.

¶ 48 In Miller , we lacked any indication that the Legislature had considered temporary or transitory possession of a controlled substance for purposes of, e.g., delivering the substance to its lawful owner. Accordingly, we examined the possible consequences of such a rule and concluded that the Legislature would not have intended to criminalize that conduct. Id. ¶ 21. Thus, for purposes of the Act, we construed the definition of "possess[ ]" in section 58-37-2(1)(ii) as "exclud[ing] temporary possession of a controlled substance for the purpose of returning it to its lawful owner." Id. ¶¶ 19 & n. 14, 24.

¶ 49 Here, we address a similar question but in the context of a different statutory scheme. And with respect to legislative intent, we have guidance that we lacked in Miller . The Legislature's textually expressed judgment that temporary or transitory possession of a firearm by a restricted person is not generally a lawful activity must govern our interpretation. See UTAH CODE § 76-10-503(7). Accordingly, we are not at liberty to alter that background rule and imply a defense under which temporary or transitory possession is, generally, lawful. While the Legislature could have excused temporary possession of firearms by restricted persons, in the way we concluded it had when dealing with the temporary possession of controlled substances by members of the general public, the Legislature did not.

¶ 50 Relying in part on Miller , Sanders points to two related canons of construction and argues that their application supports his reading of section 503. Both deal with absurd results. Under the first, "when the statutory language plausibly presents the court with two alternative readings, [this court] prefer[s] the reading that avoids absurd results." State ex rel. Z.C. , 2007 UT 54, ¶ 15 n.5, 165 P.3d 1206. Under the second, "a court should not follow the literal language of a statute if its plain meaning works an absurd result." Id. ¶ 11 (citation omitted) (internal quotation marks omitted). The second canon demands a stronger showing of absurdity, given "the level of caution required when this court interprets a statute contrary to its plain meaning." See id. ¶ 15 n.5. Sanders's briefing does not delineate between the two, and we interpret it as raising both points.

¶ 51 Sanders argues that the criminalization of transitory possession, as outlined in his proposed instruction, would be "absurd," and he cites the example of his own conviction as "demonstrat[ing] the injustice that may result from strictly construing the term 'possess.' " Sanders characterizes his own conduct as "innocently handl[ing] the weapon temporarily" "to place the rifle out of the reach of passersby, particularly children in the adjacent schoolyard," "until he could return the firearm to M.M." His argument fails, however, because he has not demonstrated that a legislative policy barring convicted felons from temporarily possessing firearms would be absurd. Or that the application of that policy to him, under the circumstances presented here, yielded an absurd result. As the State asserts, the Legislature could reasonably have intended to criminalize Sanders's conduct, as well as temporary or transitory possession of a firearm by a convicted felon generally.

¶ 52 We have recognized the dangers the Legislature sought to criminalize in the felon-in-possession statute. In State v. Willis , we reasoned that the Legislature was able to "regulat[e] the potentially deadly privilege of firearm possession by convicted felons." 2004 UT 93, ¶ 6, 100 P.3d 1218. In State v. Nielsen , we said that the purpose of section 76-10-503 "was to deter those convicted of violent crimes from thereafter having guns, loaded or unloaded." 544 P.2d 489, 490 (Utah 1975). While the Legislature has since broadened the statute to deter all felons-not just those convicted of violent crimes-this policy choice remains the same.

¶ 53 With respect to brief possession of a firearm, the Legislature could rationally have concluded that permitting an exception for temporary or transitory possession would run afoul of section 503's legislative purpose. And, therefore, prohibited restricted persons from possessing firearms, even briefly. Drawing the line in that manner, the legislature provides a bright demarcation between legal and illegal conduct. This bright line is particularly helpful here, since, as the State argues, "Utah's statutory scheme reflects the legislature's recognition that 'danger may arise quickly.' " (quoting United States v. Johnson , 459 F.3d 990, 998 (9th Cir. 2006).) This bright line also prevents trials from focusing on the felon's rationale for possessing a gun he is forbidden from possessing. Accordingly, we cannot say that it was absurd for the Legislature to enact a law that required Sanders to find some other way of getting the firearm into the house.

¶ 54 That is not to say that Sanders's argument is completely devoid of merit. It is not difficult to conceive of factual scenarios where the lack of an innocent possession defense might lead to an absurd result. For example, if a felon dispossessed a toddler of a loaded gun, and immediately placed the gun out of harm's way, we might conclude that a conviction for that behavior would be absurd. But that is not the case before us.

¶ 55 Here, the Legislature could have rationally intended to criminalize Sanders's conduct. His retrieval of the rifle from the backyard was not reasonably necessary to avoid an imminent greater harm; the firearm was in a fenced backyard on a Friday night. Thus, we cannot conclude that a reasonable Legislature could not have intended for this statute to apply to Sanders, and application of the statute to Sanders does not lead to an absurd result.

CONCLUSION

¶ 56 We find no innocent possession defense explicitly or implicitly in Utah Code section 76-10-503. Our case law does not require us to recognize an implicit innocent possession defense in this statute. And Sanders's conviction does not yield an absurd result. We affirm the conviction.

      "On appeal, we review the record facts in a light most favorable to the jury's verdict and recite the facts accordingly." USA Power, LLC v. PacifiCorp , 2016 UT 20, ¶ 8 n.3, 372 P.3d 629 (citation omitted) (internal quotation marks omitted).

      The State also charged Sanders with two counts of possession of a dangerous weapon by a restricted person, class A misdemeanors, Utah Code § 76-10-503(3)(b), and one count of possession of drug paraphernalia, a class B misdemeanor, Utah Code § 58-37a-5(1). The court granted Sanders's motion for a directed verdict as to the drug paraphernalia charge, and the jury found Sanders not guilty of the dangerous weapon charges.

      We cite to the version of the statute in effect at the time of Sanders's violation of Utah Code section 76-10-503(3) in December 2014.

      General defenses are those that "theoretically apply to all offenses." 1 Paul H. Robinson, Crim. L. Def. § 21 (2018). For example, compulsion is a general defense that the Legislature has made available to the prosecution of any crime. Utah Code § 76-2-302(1) ("A person is not guilty of an offense when he engaged in the proscribed conduct because he was coerced to do so by the use or threatened imminent use of unlawful physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would not have resisted.").
      In contrast, a specific defense "must be grounded in the specific code sections" at issue. Gardiner , 814 P.2d at 574. By way of example, section 76-5-203 provides the following affirmative defense to murder: "[T]he defendant caused the death of another ... under a reasonable belief that the circumstances provided a legal justification or excuse for the conduct ...." Utah Code § 76-5-203(4)(a).

      See Utah Code §§ 76-2-301 to -308; id. §§ 76-2-401 to -407.

      Under section 76-10-503(1)(b), any person who has been convicted of any felony, or meets another specified criteria, is a Category II restricted person.

      Elsewhere in the Code, the Legislature also carved out an exception permitting a restricted person to "own" or "possess" "archery equipment, including crossbows, for the purpose of lawful hunting and lawful target shooting." Utah Code § 76-10-512(2).

      The Legislature enacted this specific defense against the backdrop of the Code's general defenses, which exonerate a broader range of otherwise unlawful behavior. See Utah Code §§ 76-2-301 to -304, -305 to -308; id. §§ 76-2-401 to -407. None of the conduct addressed in section 503 is unlawful if, e.g., the restricted person acts under circumstances establishing compulsion, entrapment, or justification. Id. §§ 76-2-302, -303, -401.
      Sanders does not assert that the jury should have been instructed on the general defense of justification, but he claims that an innocent possession defense would be consistent with it. Even assuming that an innocent possession defense would be "consistent" with the general defense of justification, for the reasons discussed above, the felon-in-possession statute does not leave room for us to use the general defenses to imply a specific defense that the Legislature did not see fit to include.

      Brevity may be the soul of wit, but it is anathema to our more recent practice.

      A holding that remains untouched by this opinion.

      Other jurisdictions have recognized these risks as well. The Ninth Circuit Court of Appeals has opined that the federal felon-in-possession statute reflects a congressional awareness that "danger may arise quickly" once a gun is in a felon's hands. United States v. Johnson , 459 F.3d 990, 998 (9th Cir. 2006). An individual "need only pull the trigger, an act which can be completed in a split second and which is controlled and influenced by nothing more than the defendant's whim." United States v. Matthews , 520 F.3d 806, 809 (7th Cir. 2008) (citation omitted) (internal quotation marks omitted). "Neither the language of the [federal] felon-in-possession statute, nor its evident purpose, encourage the court to develop defenses that leave much room for benign transitory possession. The statute bans possession outright without regard to how great a danger exists of misuse in the particular case." United States v. Teemer , 394 F.3d 59, 64 (1st Cir. 2005). "The very structure of the Gun Control Act demonstrates that Congress ... sought broadly to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous. These persons are comprehensively barred by the Act from acquiring firearms by any means." Barrett v. United State , 423 U.S. 212, 218, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976).

      In this regard, there seems to be an interesting interaction between the absurd results doctrine and the common law defense of necessity. Although Utah criminal law is wholly statutory and there are no longer common law defenses to statutory crimes, see Utah Code § 76-1-103, at first blush it appears that many of the instances in which we can envision a court concluding that a conviction under the felon-in-possession statute would be absurd would be those in which a jury applying the common law defense might have found that the defendant's actions were necessary.
      The necessity defense applied where a person was confronted with a "choice of two evils: either he may violate the literal terms of the criminal law and thus produce a harmful result, or he may comply with those terms and thus produce a greater ... amount of harm." 2 Wayne R. LaFave, Subst. Crim. L. § 10.1 (3d ed. 2018). The public policy underlying the necessity defense is that "the law ought to promote the achievement of higher values at the expense of lesser values, and sometimes the greater good for society will be accomplished by violating the literal language of the criminal law." Id. § 10.1(a). The necessity defense is narrow, however, and it fails "if there was a reasonable, legal alternative to violating the law." State v. Tuttle , 730 P.2d 630, 635 (Utah 1986) (quoting United States v. Bailey , 444 U.S. 394, 410, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980) ). The necessity defense therefore requires that the defendant (1) acted with the intent to avoid the greater harm, (2) honestly and reasonably believed that the act was necessary to avoid the greater harm, (3) no alternative course of action existed to avoid the imminent harm, (4) successfully avoided the greater harm, and (5) was not personally at fault in creating the situation that led to the imminent harm. See 2 Subst. Crim. L. § 10.1(d)(1)-(6).
      Because the question is not presented to us in these terms, and because we conclude that Sanders's conviction is one that a rational Legislature could have intended, we offer no opinion on the topic. But it appears that common law necessity could, in an appropriate case, inform an absurd results analysis.

      In other words, we can envision hypothetical circumstances involving possession of a firearm that the Legislature would not have intended to criminalize, but they fall into a much narrower category than Sanders's proposed instruction. And we anticipate that, when those cases arise, they may be addressed through the absurd results doctrine.


source: Caselaw Access Project

license: Public Domain

text:
    UTAH OFFICE OF CONSUMER SERVICES and Utah Association of Energy Users, Petitioners, v. PUBLIC SERVICE COMMISSION OF UTAH, Utah Division of Public Utilities, and PacifiCorp d/b/a Rocky Mountain Power, Respondents.
    No. 20170364
    Supreme Court of Utah.
    Filed June 27, 2019
    Robert J. Moore, Asst. Att'y Gen., Steven W. Snarr, Special Asst. Att'y Gen., Salt Lake City, for petitioner Utah Office of Consumer Services
    Gary A. Dodge, Phillip J. Russell, Salt Lake City, for petitioner Utah Association of Energy Users
    Melanie A. Reif, Salt Lake City, for respondent Public Service Commission of Utah
    Sean D. Reyes, Att'y Gen., Brent A. Burnett, Asst. Solic. Gen., Patricia E. Schmid, Asst. Att'y Gen., Justin C. Jetter, Asst. Att'y Gen., Salt Lake City for respondent Utah Division of Public Utilities
    R. Jeff Richards, Yvonne R. Hogle, D. Matthew Moscon, Bret W. Reich, Salt Lake City, for respondent PacifiCorp d/b/a Rocky Mountain Power
    Jenniffer Nelson Clark, Cameron L. Sabin, Salt Lake City, for amicus curiae Questar Gas Company d/b/a Dominion Energy Utah
    Associate Chief Justice Lee authored the opinion of the Court, in which Chief Justice Durrant, Justice Himonas, Justice Pearce, and Justice Petersen joined.
   Associate Chief Justice Lee, opinion of the Court:

¶1 The Utah Office of Consumer Services and the Utah Association of Energy Users ("Consumer Groups") challenge orders from the Public Service Commission in two related cases. We consolidated these cases because they raise the same threshold legal question-whether the Commission has the authority to impose "interim" rates as an element of the energy balancing account procedures described in UTAH CODE section 54-7-13.5. We hold that the Commission lacks this authority.

¶2 The interim rates at issue were imposed without a requirement that the public utility prove by "substantial evidence" that the costs incorporated in the rates were "prudently incurred" or "just and reasonable." We hold that this runs afoul of the controlling standard set forth in UTAH CODE section 54-7-13.5(2)(e)(ii). And we set aside the Commission's orders on this basis.

I

¶3 The Public Service Commission is authorized by statute to "supervise and regulate every public utility in this state." UTAH CODE § 54-4-1. One of the utilities regulated by the Commission is PacifiCorp, d/b/a Rocky Mountain Power, an electric power provider. PacifiCorp's rates are set by the Commission under terms and conditions set forth in the Utah Code. A threshold step in the rate setting process is a "general rate" case.

¶4 In a general rate case the Commission estimates what it will cost PacifiCorp to provide electricity to customers. That estimate becomes the utility's "base rate." See id. § 54-7-12(1)(a)(i). Included in the base rate is a projected estimate of PacifiCorp's net power costs. In any given year, however, actual net power costs will vary from the costs predicted in a general rate case. With that in mind, the legislature created a mechanism to account for these differences-the "energy balancing account," or EBA. See id. § 54-7-13.5.

¶5 An EBA is an account used to track PacifiCorp's incurred net power costs. The account must be authorized by the Commission. It "become[s] effective" upon a finding that it is "(i) in the public interest; (ii) for prudently-incurred costs; and (iii) implemented at the conclusion of a general rate case." Id. § 54-7-13.5(2)(b). Once an EBA is approved, PacifiCorp is authorized to track the costs identified in that account. Such EBA costs include fuel, purchased power, and wheeling expenses-"less wholesale revenues." Id. § 54-7-13.5(1)(b).

¶6 PacifiCorp must annually file "a reconciliation of the energy balancing account with the [C]ommission" seeking either a recovery from or a refund to customers-based on the difference between the estimated net power costs reflected in the base rate and PacifiCorp's actual net power costs incurred that year. Id. § 54-7-13.5(2)(c). PacifiCorp bears the burden of proving that its costs are "prudently incurred." Id. § 54-7-13.5(2)(d). This annual filing is subject to review by the Division of Public Utilities. The Division conducts an audit and submits a report to the Commission. And the report is used by the Commission to determine whether a refund or recovery is appropriate. This process is repeated annually until a new base rate is set in a new general rate case.

¶7 PacifiCorp's rates have been established in accordance with the above procedures. In 2009, PacifiCorp filed an application for approval of a proposed EBA in accordance with the newly-passed EBA statute- Utah Code section 54-7-13.5. The Commission opened a docket to review the filing. Two years later, the Commission approved the EBA and ordered the implementation of a four-year EBA pilot program. The Commission asked the Division to file periodic reports evaluating the program. The Commission also sanctioned the use of an "interim rate" procedure as part of the EBA process. Under that process, PacifiCorp would file its annual EBA report comparing estimated power costs with its actual power costs. PacifiCorp would propose an interim rate based on the difference between estimated and actual costs. The Division would then review PacifiCorp's report and determine whether it departed from prior years' filings. If not, the Division would recommend that the Commission approve PacifiCorp's proposed interim rate. The Commission would review the Division's recommendation and hold a hearing. If an interim rate was approved by the Commission, the interim rate would go into effect while the Division completed its full audit of PacifiCorp's EBA report to determine if PacifiCorp's claimed costs were prudently incurred.

¶8 On August 30, 2012, the Commission issued an order eliminating the EBA interim rate process. The Commission indicated that it had failed to consider what costs associated with PacifiCorp's financial swap transactions qualified for recovery under the EBA when it initially approved the interim rate process. In the Commission's view, a determination of what costs could be recovered for these swap transactions would require a significant amount of time and likely would result in highly contentious litigation in both the interim and final EBA hearings. So the Commission decided that an interim rate process was no longer appropriate for the EBA mechanism.

¶9 The Division filed its first report evaluating the EBA program in May 2014. The Division noted that it had been required to devote significant time to review PacifiCorp's filings due to the complexity of the EBA process. And it recommended some structural changes. The Commission, however, determined that it was too early to make any changes to the EBA program.

¶10 The Division filed its final report two years later. It recommended that "[t]he time period for [its] audits ... be extended to one year and interim rates ... be established until the Division can complete its audit." On February 16, 2017, the Commission issued an order adopting the Division's recommendation that interim rates be reinstated in the EBA mechanism. In so concluding, the Commission reasoned that circumstances had changed since its August 30, 2012 order rejecting interim rates. Specifically, the Commission asserted that the contentious issues and litigation surrounding PacifiCorp's swap transactions had been resolved. And for that reason the Commission concluded that an interim rate process was now appropriate.

¶11 The Commission asserted that the interim rate subsection of the general rate case statute, id. § 54-7-12(4)(a), authorized it to establish interim rates in an EBA proceeding. And it incorporated the procedural and timing requirements outlined in that subsection. First, the Commission defined PacifiCorp's burden of proof to be commensurate with the burden of proof standard established in subsection 54-7-12(4)(a)(iii). See id. § 54-7-12(4)(a)(iii) (stating that a utility "shall establish an adequate prima facie showing that the interim rate increase or decrease is justified"). The Commission asked the Division to review PacifiCorp's EBA filing and determine whether the filing "appears to not depart from prior years' filings." PacifiCorp would eventually have to prove by substantial evidence that its claimed costs were prudently incurred. But a lower standard was appropriate in the interim in the Commission's view. Second, the Commission determined that it would act upon a request for interim rates within 45 days of PacifiCorp's EBA filing. See id. § 54-7-12(4)(a)(ii).

¶12 The Commission found further justification for these decisions in our case law. It noted that in Questar Gas Co. v. Utah Public Service Commission , 2001 UT 93, 34 P.3d 218, we recognized the Commission's "authority to authorize interim rates in the Questar Gas 191 balancing account mechanism." And it reasoned that "PacifiCorp's EBA is in some ways similar to Account 191." Drawing on these similarities, the Commission determined that Questar Gas supported its decision to allow interim rates and adopt the procedures described in subsection 54-7-12(4)(a).

¶13 The Consumer Groups filed a petition for reconsideration and rehearing challenging the legality of the decision to incorporate an interim rate process in the EBA mechanism. The Consumer Groups asserted that subsection 54-7-12(4)(a)(ii) could not be applied outside of a general rate case, and insisted that the interim rate procedures described in subsection (4)(a) run afoul of section 54-7-13.5 by altering the standard for cost recovery and PacifiCorp's burden of proof. See UTAH CODE § 54-7-13.5(2)(e) ("An energy balancing account may not alter: (i) the standard for cost recovery; or (ii) the electrical corporation's burden of proof."). The Commission rejected the Consumer Groups' petition. And the petition to this court in Case No. 20170364 followed.

¶14 About a year later, PacifiCorp submitted its 2018 EBA filing. That filing differed in one significant way from PacifiCorp's 2017 filing: It proposed to recover EBA costs in the amount of approximately $2.8 million on an interim basis. The Division reviewed PacifiCorp's filing and determined that it appeared not to depart from the prior years' filings. And on that basis the Division recommended that PacifiCorp be allowed to recover its claimed EBA costs. The Commission agreed. It issued an order on April 27, 2018 imposing interim rates. The Consumer Groups filed a petition for reconsideration. They raised the same arguments that they made when challenging the Commission's February 16, 2017 order approving an interim rate procedure. The Commission rejected the Consumer Groups' petition. And the petition in Case No. 20180536 followed. Since the Commission's April 27, 2018 order, customers have been paying PacifiCorp the disputed rates.

II

¶15 The Consumer Groups challenge the Commission's interim rate orders on two grounds. They first contend that the Commission lacks the authority to interject interim rates in the EBA mechanism. Second, they assert that the Commission's orders mark a departure from prior practice in violation of the Utah Administrative Procedures Act ("UAPA"). We agree with the Consumer Groups' first argument. Specifically, we conclude that the Commission violated the statutory mandate that an EBA "may not alter ... the electrical corporation's burden of proof." UTAH CODE § 54-7-13.5(2)(e). And we set aside the Commission's orders on that basis (without reaching the question whether the Commission acted inconsistently with prior practice in violation of UAPA).

¶16 Before expounding on the basis for our decision we first address statutory standing questions raised by the Division and the Commission. Those questions arise under a statutory requirement that parties challenging an order of the Commission demonstrate that they have been "substantially prejudiced" by the Commission's orders. Id. § 63G-4-403(4). The Division and the Commission assert that the Consumer Groups fail to carry this burden. We disagree for reasons set forth below.

A

¶17 The UAPA governs claims asserted against an agency. UTAH CODE § 63G-4-105(1) ("The procedures for agency action, agency review, and judicial review contained in this chapter are applicable to all agency adjudicative proceedings commenced by or before an agency on or after January 1, 1988."). Before a court may grant relief under the UAPA, it must determine that the "person seeking judicial review has been substantially prejudiced." Id. § 63G-4-403(4). "A party has been substantially prejudiced if 'the alleged error was not harmless.' " Utah Chapter of the Sierra Club v. Utah Air Quality Bd. , 2006 UT 74, ¶ 15, 148 P.3d 960 (quoting WWC Holding Co. v. Pub. Serv. Comm'n of Utah , 2002 UT 23, ¶ 7, 44 P.3d 714 ).

¶18 The Division challenges the Consumer Groups' statutory standing to advance the claims set forth in the first petition. The Consumer Groups' primary claim of prejudice is related to the imposition of interim rates. But those rates did not go into effect until after the Consumer Groups filed their first petition. So the Division asserts that the Consumer Groups' first petition should be dismissed for failure to demonstrate substantial prejudice.

¶19 We disagree. A party may suffer substantial prejudice even though the claimed injury is one not yet realized. This principle was key to our decision in Utah Chapter of the Sierra Club , 2006 UT 74, 148 P.3d 960. There we determined that petitioners had standing to pursue their claims even though their alleged injury had not yet been suffered. The Utah Division of Air Quality had granted a permit to the Sevier Power Company authorizing the construction of a coal-fired power plant. Id. ¶ 1. Although the power plant had not yet been built, we noted that the plant presented a serious danger of future pollution. Id. ¶ 22. And we explained that that pollution would jeopardize the petitioners' health, the value of their land, and their enjoyment of the surrounding ecosystem. Id. We accordingly concluded that petitioners had standing to challenge the Utah Air Quality Board's decision.

¶20 We reach a similar conclusion here. We hold that the Consumer Groups' first petition clears the threshold hurdle of demonstrating substantial prejudice. The Consumer Groups' alleged prejudice was sufficiently imminent when the Commission decided to reinstate interim rates. The Commission would not have reinstated interim rates if PacifiCorp had no intention of recovering costs on an interim basis. PacifiCorp and the Division recommended that the Commission adopt an interim rate procedure so PacifiCorp could recover its EBA costs while the Division finished its audit. The prospect that the Consumer Groups would end up paying an interim rate surcharge was more than hypothetical. The facts of these consolidated cases demonstrate as much. We thus conclude that we can consider the merits of the Consumer Groups' first petition.

¶21 The Commission also challenges the Consumer Groups' statutory standing to advance the claims set forth in the second petition. In the Commission's view, the Consumer Groups are estopped from asserting that they have suffered substantial prejudice from the Commission's order requiring customers to pay $2.8 million on an interim basis. And because the Consumer Groups are foreclosed from claiming that they have been substantially prejudiced, the Commission asks us to dismiss the Consumer Groups' second petition on statutory standing grounds. We disagree with the premise of this argument. We do not think that the Consumer Groups are estopped from arguing substantial prejudice. And we believe that they have satisfied their burden of demonstrating such prejudice.

¶22 The alleged error here is that the Commission erroneously interjected an interim rate procedure into the EBA mechanism. And the claimed prejudice stemming from this error is that customers are being forced to pay $2.8 million in increased rates prematurely. The alleged error has thus harmed customers.

¶23 The Commission asks us to recognize that the Consumer Groups brought this harm upon themselves. It concedes that customers are currently paying a surcharge to cover $2.8 million of PacifiCorp's claimed net power costs. But it argues that the Consumer Groups stipulated to these costs. And in the Commission's view that stipulation bars the Consumer Groups from claiming prejudice.

¶24 In 2015, the Consumer Groups reached a settlement agreement with PacifiCorp over costs related to the closure of the Deer Creek Mine. As part of that settlement, the Consumer Groups agreed that the Commission "should enter an order authorizing" PacifiCorp to recover certain costs associated with its "unrecovered investment in the Deer Creek Mine." Had the Consumer Groups not stipulated to these costs, customers would have received a surcredit under PacifiCorp's 2018 EBA filing. So, the Commission contends, the Consumer Groups cannot claim substantial prejudice when, setting aside costs to which they agreed, the interim EBA recovery would have benefited customers.

¶25 We disagree with the notion that the Consumer Groups' stipulation negates their claim of substantial prejudice. While the Consumer Groups stipulated to PacifiCorp recovering certain costs, they did not stipulate to recovery through interim rates. And the Commission's approval of interim rates serves as the basis for the Consumer Groups' claim of prejudice. Because customers are being forced to pay interim rates, the Consumer Groups assert that customers are losing out on potential interest they could otherwise earn in the time between paying the interim rates and the true up at the conclusion of the EBA process. This injury is alone sufficient to satisfy the Consumer Groups' burden of demonstrating substantial prejudice.

¶26 The fact that the Consumer Groups represent customers whose individual injuries are relatively small does not undermine this conclusion. The Utah Office of Consumer Services ("UOCS") is a government agency specifically tasked with "assess[ing] the impact of utility rate changes ... on: (i) residential consumers; and (ii) small commercial consumers." UTAH CODE § 54-10a-301(1)(a). It is authorized to "commence an original proceeding, file a complaint, appear as a party, appeal, or otherwise represent residential consumers or small commercial consumers in a matter or a proceeding involving regulation of an applicable public utility." Id. § 54-10a-301(2)(b)(i). The Utah Association of Energy Users ("UAE") is a non-profit organization that similarly represents the interests of customers before the Commission. UTAH ASS'N OF ENERGY USERS , About , https://www.utahenergyusers.org/about-1 (last visited June 11, 2019). Its members include large industrial and commercial companies. The harm suffered by the individual customers represented by UOCS and UAE is relatively small considering that the $2.8 million in interim rates is spread out across PacifiCorp's nearly one million Utah customers. ROCKY MOUNTAIN POWER , Quick Facts , https://www.rockymountainpower.net/about/cf/qf.html (last visited June 11, 2019). But UOCS is statutorily authorized to represent all residential or small commercial consumers before the Commission. UTAH CODE § 54-10a-301(1)(a), (2)(a)-(b). And the customers composing UAE are large corporations, each of which could satisfy the burden of demonstrating substantial prejudice. See Utah Chapter of the Sierra Club , 2006 UT 74, ¶ 21, 148 P.3d 960 ("An association ... has standing if its individual members have standing and the participation of the individual members is not necessary to the resolution of the case."). All of this is to say that the Consumer Groups have suffered substantial prejudice from the Commission's orders interjecting interim rates into the EBA mechanism. We therefore conclude that the Consumer Groups have standing. And we accordingly proceed to the merits of their petitions.

B

¶27 The Consumer Groups contend that the Commission "erroneously interpreted or applied" Utah law when it interjected an interim rate process into the EBA mechanism. See UTAH CODE § 63G-4-403(4)(d). We agree and thus set aside the Commission's orders. We expound on this holding below. First we review and reject the Commission's proffered justifications for its orders. Then we explain how the Commission's orders altered PacifiCorp's burden of proof in violation of Utah Code section 54-7-13.5(2)(e)(ii).

1

¶28 When reviewing an agency action, "the appropriate standard of review ... depend[s] on the type of action in question ... and whether it can be characterized as a question of law, a question of fact, or a mixed question of law and fact." Murray v. Utah Labor Comm'n , 2013 UT 38, ¶ 22, 308 P.3d 461. Here we are faced with a question of law-whether the Commission has the authority to impose interim rates as part of the EBA process. And we review such questions for correctness, according no deference to the agency's determination.

Hughes Gen. Contractors, Inc. v. Utah Labor Comm'n , 2014 UT 3, ¶ 6, 322 P.3d 712.

¶29 The Commission cited UTAH CODE section 54-7-12(4)(a)(ii) as the basis for its authority to impose interim rates through the EBA mechanism. That subsection states as follows:

The commission, on its own initiative or in response to an application by a public utility or other party, may, after a hearing, allow any rate increase or decrease proposed by a public utility, or a reasonable part of the rate increase or decrease, to take effect on an interim basis within 45 days after the day on which the request is filed, subject to the commission's right to order a refund or surcharge.

UTAH CODE § 54-7-12(4)(a)(ii). The Commission acknowledged that this provision is surrounded by subsections referring to a general rate case and not the EBA mechanism. But it also emphasized that subsection (4)(a)(ii) itself makes no explicit reference to a general rate case. And on that basis it concluded that the "plain language" of "54-7-12(4)(a)(ii) authorizes [it] to establish interim rates in an EBA cost-recovery proceeding."

¶30 This is an erroneous reading of the statute. When interpreting a statute, our goal is to give effect to the words enacted into law by the legislature. See Olsen v. Eagle Mountain City , 2011 UT 10, ¶ 9, 248 P.3d 465. We do not, however, read statutory text in isolation. Monarrez v. Utah Dep't of Transp. , 2016 UT 10, ¶ 11, 368 P.3d 846. We must read it in context, taking into consideration surrounding terms and associated provisions. Olsen , 2011 UT 10, ¶ 12, 248 P.3d 465. And when subsection (4)(a)(ii) is read in context it becomes obvious that it is meant to apply only to general rate cases.

¶31 The provisions surrounding subsection (4)(a)(ii) clearly speak to the imposition of interim rates in a general rate case-or, in other words, authorizing a new base rate on an interim basis. The Commission concedes as much. But it fails to recognize the significance of this concession. Once subsection (4)(a)(ii) is read in conjunction with subsections (4)(a)(i) and (4)(a)(iii), it becomes clear that subsection (4)(a)(ii) authorizes the imposition of interim rates only in a general rate case and not in an EBA proceeding.

¶32 All of subsection (4)'s provisions are interrelated and speak to imposing interim rates in a general rate case. Subsection (4)(a)(i) states that "[a] request for interim rates shall be made within 90 days after the day on which a public utility files a complete filing for a general rate increase or a general rate decrease ." UTAH CODE § 54-7-12(4)(a)(i) (emphasis added). And subsection (4)(a)(ii), in turn, says that the rate increase or decrease may "take effect on an interim basis within 45 days after the day on which the request is filed." Id. § 54-7-12(4)(a)(ii) (emphasis added). "The request" spoken of here ties back to "the request" mentioned in subsection (4)(a)(i). Subsection (4)(a)(iii) further ties together subsections (4)(a)(i) and (4)(a)(ii). It reduces the utility's burden of proof when an interim request is made in a general rate case . It states that "[t]he evidence presented in the hearing held pursuant" to the terms of subsection (4) "need not encompass all issues that may be considered in a rate case hearing held pursuant to [s]ubsection (2)(d)"-the hearing required in a general rate case. Id. § 54-7-12(4)(a)(iii).

¶33 This language shows that each subpart of subsection (4) is interconnected. Importantly, it also highlights that each subpart deals with the imposition of interim rates in a general rate case . The entirety of section 54-7-12 is dedicated to describing the procedures for a general rate case. It would be odd to isolate subsection (4)(a)(ii) from all of its surrounding provisions-and to conclude that the absence of the words "general rate" in that subsection is an indication that the procedures mentioned therein apply outside the general rate process (in an EBA proceeding). This we decline to do.

¶34 The absence of an express reference to a general rate case in subsection (4)(a)(ii) is accordingly inconsequential. Subsection (4) is clearly speaking about imposing interim rates in a general rate case. And for this reason this provision cannot serve as the source of the Commission's authority to impose interim rates in the EBA mechanism.

¶35 In reaching a contrary conclusion the Commission also cited case law from this court. It noted that in Questar Gas Co. v. Utah Public Service Commission , 2001 UT 93, 34 P.3d 218, we "recognized the [Commission's] authority to authorize interim rates in the Questar Gas 191 balancing account mechanism." And because "PacifiCorp's EBA is in some ways similar" to that balancing account, the Commission concluded that the Questar Gas holding supports its decision to impose interim rates.

¶36 We disagree. In Questar Gas we were asked to opine on the propriety of interim rates in the specific context of the Questar Gas 191 balancing account. See id. ¶ 12. And there may be some similarities between that account and PacifiCorp's EBA. But the Questar Gas decision says nothing about the statutory scheme implicated here. Our opinion in that case does not speak to whether section 54-7-13.5 authorizes the imposition of interim rates in an EBA proceeding. That's because the 191 balancing account was in no way tied to section 54-7-13.5-that provision didn't even exist yet. So the 191 balancing account was not implemented under section 54-7-13.5 ; it was implemented under the Commission's "ample general power to fix rates and establish accounting procedures." Id. (quoting Utah Dep't of Bus. Regulation v. Pub. Serv. Comm'n of Utah , 720 P.2d 420, 423 n.4 (Utah 1986) ) (citing UTAH CODE § 54-4-1 ).

¶37 The Commission latches onto this language from Questar Gas . It says that this language-in conjunction with the favorable cite to UTAH CODE section 54-4-1 -stands as an acknowledgment that the Commission has authority to impose interim rates in any rate proceeding. We disagree. The Commission certainly has broad authority. But that authority is not so broad as to read statutory EBA safeguards out of existence.

¶38 Section 54-4-1 confers on the Commission "power and jurisdiction to supervise and regulate every public utility in this state ... and to do all things, whether herein specifically designated or in addition thereto, which are necessary or convenient in the exercise of such power and jurisdiction." UTAH CODE § 54-4-1. We cited this provision in Questar Gas as support for the proposition that the Commission has "ample general power to fix rates and establish accounting procedures." Questar Gas , 2001 UT 93, ¶ 12, 34 P.3d 218 (quoting Utah Dep't of Bus. Regulation , 720 P.2d at 423 n.4 ). Yet that "ample power" is not without limits. Some of those limits are prescribed in the EBA statute. And specific statutes (like the EBA provisions) control more general ones (like section 54-4-1 ). See Lyon v. Burton , 2000 UT 19, ¶ 17, 5 P.3d 616. So if the EBA statute prohibits the Commission from imposing interim rates in the manner by which it did-as the EBA statute does- section 54-4-1 cannot save the Commission's orders.

¶39 The same goes for the Commission's reliance on section 54-4-4.1. That section states that "[t]he [C]ommission may, by rule or order, adopt any method of rate regulation that is: (a) consistent with this title; (b) in the public interest; and (c) just and reasonable." UTAH CODE § 54-4-4.1(1). This section explicitly recognizes limits on the Commission's authority. And one of those limits is that any method of rate regulation the Commission adopts must be consistent with Title 54. So if Title 54 prohibits the Commission from imposing interim rates in the manner by which it did-as Title 54 does-then the Commission's reliance on section 54-4-4.1 is to no avail.

¶40 For all these reasons, we reject the Commission's stated justifications for interjecting interim rates into the EBA mechanism. Having done so, we proceed to explain how the Commission's orders run afoul of the EBA statute and must thus be set aside.

2

¶41 The Commission is given broad authority to define the procedures and timing by which an EBA is annually reconciled. But that authority is not so broad as to allow the Commission to alter the burden of proof that PacifiCorp must carry before recovering its EBA costs. Yet that is exactly what the Commission did here. And we set aside the Commission's orders on this basis.

¶42 Section 54-7-13.5 merely provides the framework for authorizing an EBA and approving a utility's annual EBA filing. Many of the details are left to the Commission. The statute, for instance, does not define the timing for cost recovery. It allows PacifiCorp to recover its actual EBA costs through a surcharge. Id. § 54-7-13.5(2)(c)(i). And it requires PacifiCorp to "file a reconciliation of the energy balancing account with the commission at least annually" to recover these costs. Id. § 54-7-13.5(2)(c)(ii).

¶43 The statute gives the Commission broad discretion to establish a mechanism by which costs are recovered. Section 54-7-13.5 states that the method by which PacifiCorp recovers its EBA costs shall "be incorporated into base rates in an appropriate commission proceeding ." Id. § 54-7-13.5(2)(f)(ii) (emphasis added). The statute never fully defines what constitutes "an appropriate commission proceeding." And in this sense the Commission is given broad discretion to develop the mechanism of recovery. But that discretion is not boundless.

¶44 Limits are placed on the Commission's authority to authorize PacifiCorp to recover its EBA costs. The most relevant of these limits for purposes of these consolidated cases are defined in subsection (2)(e): "An energy balancing account may not alter: (i) the standard for cost recovery; or (ii) the electrical corporation's burden of proof." Id. § 54-7-13.5(2)(e). In other words, if a chosen EBA mechanism alters either the standard for cost recovery or PacifiCorp's burden of proof, the mechanism is improper and the Commission has exceeded its statutory authority.

¶45 The standard for cost recovery is statutorily defined. PacifiCorp may recover its costs only to the extent they are "prudently incurred." Id. § 54-7-13.5(2)(d). The Commission acknowledges this standard. And we do not believe that it has been altered here. In its order reaffirming its decision to interject interim rates, the Commission specifically stated that "the EBA statute only allows for recovery of '[p]rudently incurred actual costs.' " So we cannot say that it applied the wrong standard of cost recovery.

¶46 The Commission did, however, err in the burden of proof that it applied. The statute itself does not specify an applicable burden of proof. But we have repeatedly said that a utility has the burden to prove that its costs are prudently incurred-or are "just and reasonable"-by "substantial evidence." See Comm. of Consumer Servs. v. Pub. Serv. Comm'n of Utah , 2003 UT 29, ¶ 14, 75 P.3d 481 ; Utah Dep't of Bus. Regulation v. Pub. Serv. Comm'n , 614 P.2d 1242, 1245 (Utah 1980). And the Commission concedes that it did not require PacifiCorp to carry a "substantial evidence" burden of proof when it approved the request to impose interim rates.

¶47 The Commission seeks to justify its approach on the ground that the applicable burden of proof will eventually be satisfied after a complete audit and a final hearing. Under the EBA framework under review, the Commission notes that PacifiCorp will eventually be required to show by "substantial evidence" that its costs are prudently incurred. This will happen at a "true up" after a complete audit and public hearing-at which time customers will be allowed to recover a surcredit if any costs incorporated in the interim rates are shown not to be justified by substantial evidence. See UTAH CODE § 54-7-13.5(2)(h)-(j). Fair enough. But that doesn't solve the problem. By law PacifiCorp is allowed to recover its claimed costs through an interim rate only after proving by substantial evidence that its costs are prudently incurred. See id. § 54-7-13.5(2)(d), (e)(ii) ; Comm. of Consumer Servs. , 2003 UT 29, ¶ 14, 75 P.3d 481. And the interim EBA rate process authorizes PacifiCorp to impose rates in the absence of such a showing.

¶48 We reverse on this basis. We conclude that the Commission's orders unlawfully altered the burden of proof that PacifiCorp must satisfy before recovering its claimed EBA costs. And we accordingly set aside the Commission's orders interjecting an interim rate procedure into the EBA process and authorizing PacifiCorp to recover $2.8 million on an interim basis.

III

¶49 In reversing the Public Service Commission and setting aside its orders we take no position on a line of policy argument presented by the Commission in its briefing. The Commission asserts that the interposition of an interim rate procedure into the EBA process would better protect consumers in a few ways-by ensuring that rates are just and reasonable and decreasing the likelihood that either a future generation of customers would be burdened with costs incurred to serve customers in a prior year or that a future generation of customers would benefit from rate refunds to which prior customers were entitled. That may be. Or perhaps the Consumer Groups have the better of the argument on these policy issues; they, after all, advance a different view. But we leave these questions for the legislature. We decide only that the current statutory scheme does not condone the interim rate process as it now stands. And we leave it to the legislature, if it so chooses, to reopen the governing statutes to expressly authorize an interim rate procedure as an element of the EBA process.

      Swap transactions are "financial transaction[s] between two parties ... in which payments or rates are exchanged over a specified period and according to specified conditions." Swap , Black's Law Dictionary (11th ed. 2019). PacifiCorp uses swap transactions to hedge market-price risk, particularly for the market price of natural gas. A natural gas swap is a contract that gives PacifiCorp the right to buy or sell a specified amount of natural gas at a specific price within a specific timeframe in exchange for an upfront premium.

      See Prinsburg State Bank v. Abundo , 2012 UT 94, ¶ 13, 296 P.3d 709 ("[A] stipulation entered into by the parties and accepted by the court 'acts as an estoppel upon the parties thereto and is conclusive of all matters necessarily included in the stipulation .' " (emphasis added) (quoting Yeargin, Inc. v. Auditing Div. of Utah State Tax Comm'n , 2001 UT 11, ¶ 20, 20 P.3d 287 )).