author: DURHAM, Chief Justice. RUSSON, Justice, WILKINS, Justice,

text:
    2002 UT 110
    In re I.M.L., a minor, Appellant, v. STATE of Utah, Appellee.
    No. 20010159.
    Supreme Court of Utah.
    Nov. 15, 2002.

      Stephen C. Clark, Janelle P. Eurick, Richard A. Van Wagoner, Robert J. Shelby, Salt Lake City, for appellant.
    Mark L. Shurtleff, Att’y Gen., Laura B. Dupaix, Kent M. Barry, Asst. Att’ys Gen., Salt Lake City, Leo Kanell, Beaver, for ap-pellee.
    Jeffrey J. Hunt, David C. Reymann, Salt Lake City, Amicus Curiae.
   DURHAM, Chief Justice.

¶ 1 In this case we consider the application of a law drafted more than one hundred years ago to the most modern of preoccupations — the Internet. I.M.L., a high school student, was charged with criminal libel for creating an Internet web site on which he displayed disparaging comments about his teachers, classmates, and principal. He moved to dismiss, claiming that the statute under which he was charged unduly burdens free speech and is unconstitutional on its face. The juvenile court denied the motion. We reverse.

BACKGROUND

¶ 2 During the 1999-2000 school year, 1.M.L. was a student at Milford High School in Milford, Utah. He was sixteen years old. During that time he created an Internet web site on his home computer. The site included a page that listed various students at Milford High and purported to describe each person’s sexual history. A second page stated that Milford High’s school principal is a “town drunk” and accused him of sleeping with the secretary of the high school. Another page listed various faculty at the school and made arguably or potentially derogatory comments about most of them, stating, for example, that one teacher is a “[pjossible [hjomosexual leading a double life,” and that another is “[pjossibly addicted to speed or some other narcotic.” Finally, a page was dedicated to defending a female student who had apparently been slandered on some other person’s web site. I.M.L. left a piece of paper containing the Internet address of his web site in the high school computer lab so that others would find the site.

¶ 3 After receiving complaints about the site, the Beaver County Sheriffs Department began a criminal investigation, which led to the arrest of I.M.L. After being arrested and waiving his right to counsel or the presence of a parent, I.M.L. admitted creating the site and stated that he had done so in order to respond to similar sites created by other students at his high school. He stated that he made disparaging comments about the faculty because he “just [didn’t] like them” and was “just messing around with them.” He stated that he attacked the principal’s character because he “hate[dj” the principal.

¶ 4 I.M.L. was charged with criminal libel, in violation of Utah Code section 76-9-502, and criminal slander, imputing unchastity to a female, in violation of Utah Code section 76-9-507. The State decided not to pursue the slander charge, and the juvenile court dismissed that charge -without prejudice.

¶ 5 I.M.L. moved to dismiss the libel charge, arguing that the criminal libel statute is unconstitutional on its face. He argued that the statute fails to punish only “actual malice,” as defined by the United States Supreme Court, and does not provide for truth as an absolute defense. The juvenile court denied the motion, holding that the term “malicious” in the statute should be intei’preted to have the same meaning as “actual malice” in First Amendment analysis and that the statute, when read in conjunction with the Utah Constitution, provides sufficient protection for truthful statements.

¶ 6 At I.M.L.’s request, the juvenile court certified its order as final, and I.M.L. appealed the order to the Utah Court of Appeals. The Court of Appeals determined that the matter was appropriate to consider as an interlocutory appeal and certified the appeal to this court.

STANDING

¶ 7 I.M.L. concedes the State’s factual allegations for purposes of this appeal, but reserves the right to dispute them should the case go to trial. Thus, in this appeal I.M.L. does not claim that his statements were true or that they were made without knowledge or recklessness. Because this is a facial challenge based on the First Amendment, however, I.M.L. has standing regardless of whether his conduct was constitutionally privileged. Bigelow v. Virginia, 421 U.S. 809, 815-16, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1974). The United States Supreme Court has allowed standing in such cases “because of the ‘danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.’ ” Id. at 816, 95 S.Ct. 2222 (quoting NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963)).

STANDARD OF REVIEW

¶ 8 “ ‘A constitutional challenge to a statute presents a question of law, which we review for correctness.... When addressing such a challenge, this court presumes that the statute is valid, and we resolve any reasonable doubts in favor of constitutionality.’ ” State v. Morrison, 2001 UT 73, ¶ 5, 31 P.3d 547 (quoting State v. Lopes, 1999 UT 24, ¶ 6, 980 P.2d 191).

ANALYSIS

¶ 9 I.M.L. claims that Utah’s criminal libel statute is unconstitutionally overbroad because it fails to require “actual malice” as defined by the United States Supreme Court and allows prosecution for true statements. Before addressing I.M.L.’s arguments, we briefly review the development of criminal libel law.

I. CRIMINAL LIBEL AND THE FIRST AMENDMENT

¶ 10 The history and development of statutes criminalizing forms of defamation have been discussed in a number of cases and commentaries. See, e.g., Garrison v. Louisiana, 379 U.S. 64, 67-68, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); Fitts v. Kolb, 779 F.Supp. 1502, 1506-09 (D.S.C.1991); Gottschalk v. State, 575 P.2d 289, 291-92 & n. 3 (Alaska 1978) (identifying several journal articles); Eberle v. Mun. Ct., 55 Cal.App.3d 423, 427-30, 127 Cal.Rptr. 594 (1976); State v. Browne, 86 N.J.Super. 217, 206 A.2d 591, 594-97 (Ct.App.Div.1965). From the earliest times, such laws prohibited defamatory comments about public or private citizens. Fitts, 779 F.Supp. at 1506-07; Gottschalk, 575 P.2d at 291. The prohibition against defamation was seen to serve two purposes: first, the laws were deemed necessary to prevent political unrest arising from criticism of government officials; second, they were intended to maintain public order, which might otherwise be disrupted by duels or other violence brought on by criticism of private citizens. Fitts, 779 F.Supp. at 1507; Gottschalk, 575 P.2d at 291. Under these laws, any statement that tended to degrade or disgrace another-whether opinion or fact, truthful or false-was considered defamatory. Garrison, 379 U.S. at 67-68, 85 S.Ct. 209; Fitts, 779 F.Supp. at 1507; Gottschalk, 575 P.2d at 291. Indeed, true statements were considered the greater danger, “for, as the woman said, she would never grieve to be told of her red nose if she had not one indeed.” Fitts, 779 F.Supp. at 1506-07 (quoting Kelly, CHminal Libel and Free Speech, 6 Kan. L.Rev. 295, 301 (1958)); see also Gottschalk, 575 P.2d at 291.

¶ 11 The passage of the First Amendment to the United States Constitution did not initially diminish the use of criminal defamation statutes:

Thus, the Sedition Act of 1798 made unlawful writing, publishing or speaking anything “false, scandalous and malicious ... against the government ... or the President ... with intent to defame ... or to bring them ... into contempt or disrepute .... ” This unpopular act was not long in existence, but was never held unconstitutional. Further, it has not been orthodox constitutional doctrine that the First Amendment was intended to bar criminal defamation, although some of our most eminent judges have believed it was. The primary substantive reform effected by the American states was to modify the rule that truth was no defense. Most states ... made truth a defense so long as the otherwise defamatory statement was uttered with good motives and for a justifiable end.

Gottschalk, 575 P.2d at 291-92 (citations omitted). Like that of many other states, see Garrison, 379 U.S. at 73 n. 7, 85 S.Ct. 209, the Utah Constitution modified the common law so that evidence of truth could be offered as a defense to defamation, provided the statement was made with good intent. Utah Const, art. 1, § 15.

¶ 12 The common law of criminal defamation remained otherwise in force until well into the twentieth century. Gottschalk, 575 P.2d at 292. Then, in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the United States Supreme Court held that civil sanctions could not be imposed based upon defamatory statements made concerning a public official unless the statements were false and made with “actual malice.” 376 U.S. at 280, 84 S.Ct. 710. The Court defined “actual malice” as making a statement “with knowledge that [the statement] was false or with reckless disregard of whether it was false or not.” Id. The Court reasoned that such a rule was necessary to maintain the principle that “debate on public issues should be uninhibited, robust, and wide-open, and ... may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Id. at '270, 84 S.Ct. 710.

¶ 13 In Garrison, the Court held that the same rule applies to criminal defamation. The Court struck down Louisiana’s criminal libel statute, finding that the statute infringed upon protected speech by punishing false statements concerning public officials made without “actual malice”:

[E]ven where the utterance is false, the great principles of the Constitution which secure freedom of expression in this area preclude attaching adverse consequences to any except the knowing or reckless falsehood. Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth.

Id. at 73, 85 S.Ct. 209. The Court further held that a statute is manifestly unconstitutional if it fails to provide truth as an absolute defense to criminal or civil liability:

Truth may not be the subject of either civil or criminal sanctions where discussion of public affairs is concerned. And since “erroneous statement is inevitable in free debate, and ... it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need ... to survive’ ...,” only those false statements made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions. For speech concerning public affairs is more than self-expression; it is the essence of self-government.

Id. at 74-75, 85 S.Ct. 209 (quoting New York Times, 376 U.S. at 271-72, 84 S.Ct. 710). Following the Garrison decision, a number of states have declared their criminal defamation statutes unconstitutional for failing to limit criminal liability to statements made with actual malice. See, e.g., Fitts, 779 F.Supp. at 1515-16; Ivey v. State, 821 So.2d 937 (Ala.2001); Gottschalk, 575 P.2d at 296; Weston v. State, 258 Ark. 707, 528 S.W.2d 412, 416 (1975); Eberle, 55 Cal.App.3d at 432-33, 127 Cal.Rptr. 594 (1976); State v. Helfrich, 277 Mont. 452, 922 P.2d 1159, 1161 & 1163 (1996) (collecting cases and holding statute unconstitutional); Commonwealth v. Armao, 446 Pa. 325, 286 A.2d 626, 632 (Pa. 1972).

II. UTAH’S CRIMINAL LIBEL STATUTE

¶ 14 “Freedom of speech is not only the hallmark of a free people, but is, indeed, an essential attribute of the sovereignty of citizenship.” Cox v. Hatch, 761 P.2d 556, 558 (Utah 1988). Free speech must be balanced, however, against the values protected by the law of defamation, invasion of privacy, and abuse of personal identity. Id. at 558-59.

¶ 15 I.M.L. claims that Utah’s criminal libel statute, like the statute struck down in Garrison, is overbroad. In considering whether a statute suffers from overbreadth, “ ‘a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.’ ” Houston v. Hill, 482 U.S. 451, 458, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (quoting Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)). In making this determination, “[cjriminal statutes must be scrutinized with particular care; those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application.” Id. at 459, 107 S.Ct. 2502 (citations omitted).

¶ 16 We must therefore consider whether the statute prohibits a substantial amount of constitutionally protected speech. In interpreting the statute, we look to the statute’s plain language and presume that the legislature used each term advisedly. Arredondo v. Avis Rent A Car Sys., Inc., 2001 UT 29, ¶ 12, 24 P.3d 928.

¶ 17 Utah Code section 76-9-502 provides: “A person is guilty of libel if he intentionally and with a malicious intent to injure another publishes or procures to be published any libel.” Utah Code Ann. § 76-9-502 (2001). The statute defines “libel” as follows:

For the purpose of this part: “Libel” means a malicious defamation, expressed either by printing or by signs or pictures or the like, tending to defame or darken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation, or publish the natural defects of one who is alive and thereby expose him to public hatred, contempt, or ridicule.

Section 76-9-501. Finally, the statute provides that malice may be presumed from the act of making the libel: “An injurious publication is presumed to have been malicious if no justifiable motive for making it is shown.” Section 76-9-503(1).

¶ 18 Quite obviously, the plain language of Utah’s statute does not comport with the requirements laid down by the United States Supreme Court. First, the statute does not punish only “actual malice” when the statement concerns public officials. The statute punishes all statements made “maliciously,” but the common law definition of “malice” is quite different from the “actual malice” contemplated by the United States Supreme Court. Fitts v. Kolb, 779 F.Supp. 1502,1515-16 (S.C.1991). Whereas common-law “malice” means “ill will or spite,” Cox, 761 P.2d at 560 n. 3, the Supreme Court has emphasized that “actual malice” in this context means specifically “with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). We have noted that “malice” and “actual malice” are not interchangeable. Cox, 761 P.2d at 560 n. 3. However, even if we were to read “actual malice” into the term “maliciously,” the statute would still fail because it allows malice to be presumed if “no justifiable motive” for the libel is shown. This presumption effectively suspends traditional malice as an element of the crime and makes “a justifiable motive” merely an affirmative defense.

¶ 19 Second, the statute provides no immunity for truthful statements. Under the statute, a true statement that “publish[es] the natural defects of one who is alive” may be punished as readily as a false statement that does the same. Section 76-9-501. Thus, the statute infringes upon a substantial amount of constitutionally protected speech. Specifically, the statute improperly prohibits (1) false statements regarding public figures made without knowledge or recklessness, and (2) true statements regarding public figures.

¶ 20 Despite these constitutional failings, the trial court found the statute constitutional. Based upon this court’s rulings in civil libel cases, the trial court held that the reference to “malicious defamation” in the definition of “libel” should be read to have the same meaning as “actual malice” as defined by the United States Supreme Court. The trial court noted that the definition of “libel” in our civil libel statute, section 45-2-2, is nearly identical to the definition of “libel” in the criminal libel statute, section 76-9-501. Because we have concluded that “actual malice” is required in a civil action for libel of a public figure, e.g., Van Dyke v. KUTV, 663 P.2d 52, 54 (Utah 1983), and because the civil and criminal libel statutes define “libel” in similar terms, the trial court concluded that it is appropriate to assume that the criminal libel statute incorporates an “actual malice” fault requirement.

¶ 21 The trial court erred in importing the constitutional actual malice requirement into the criminal libel statute. First, the cases on which it relied did not involve constitutional challenges to the civil libel statute. Although we applied First Amendment standards to the common law in some of those cases, in none of them did we hold that the definition of libel in section 45-2-2 must be read to include the United States Supreme Court’s definition of “actual malice.” See West v. Thomson Newspapers, 872 P.2d 999, 1004 (Utah 1994) (considering whether statements were defamatory under Utah law and explicitly not reaching any question of whether the civil libel statute is constitutional); Cox, 761 P.2d at 558-561 (addressing whether plaintiffs claims were barred by the First Amendment); Van Dyke, 663 P.2d at 54-56 (determining whether plaintiff was a “public official” under First Amendment standards). To the contrary, we have held, based upon First Amendment standards, that in a civil action for libel “actual malice” is required if the statement concerns a public official, whereas only negligence is required if the statement concerns a private citizen. Cox, 761 P.2d at 560; Seegmiller v. KSL, 626 P.2d 968, 973 (Utah 1981); see also Van Dyke, 663 P.2d at 54. Thus, regardless of the similar definitions of libel, in neither statute can we assume that the term “malice” has the same meaning as the “actual malice” required by the federal constitutional standard. This is of particular import since we are dealing with a penal statute. To graft the “actual malice” standard onto the criminal statute would constitute more than statutory interpretation; it would require us to re-write the law by adding an essential element to the definition of the crime. See Phelps v. Hamilton, 828 F.Supp. 831, 848-49 (D.Kan.1993).

¶ 22 Second, even if we were to equate “actual malice” with “malice,” the criminal statute would still be overbroad. Unlike the civil statute, which explicitly states that malice will not be presumed in particular cireum-stances, see section 45-2-4, the criminal libel statute provides that malice will be presumed if no “justifiable motive” for the libel can be shown. Section 76-9-503(1). As discussed previously, this presumption removes malice as an element of the offense, allowing punishment based solely upon the statement’s defamatory nature. Thus, by placing the burden of showing a “justifiable motive” on the defendant, the statute permits the punishment of statements made without knowledge or recklessness.

¶23 The trial court also held that the statute, when read in conjunction with Utah State Constitution article 1, section 15, offers sufficient protection to truthful statements. That section, however, only provides truth as a defense if the defendant can show that the statements were made with good intent:

In all criminal prosecutions for libel the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.

Utah Const, art. 1, § 15. In Garrison, the United States Supreme Court considered the truth and “good motives” defense and found it merely palliative. Garrison v. Louisiana, 379 U.S. 64, 70-73, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); see also Weston v. State, 258 Ark. 707, 528 S.W.2d 412, 415 (1975). By requiring a showing of “good motives” and “justifiable ends,” this provision allows the punishment of truthful statements made with less than pure intent. As the Garrison court recognized, free speech cannot be limited by the motives of the speaker: “Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred.” Garrison, 379 U.S. at 73, 85 S.Ct. 209. Thus, this section of the Utah Constitution fails to bring the statute within the prescribed bounds of the First Amendment.

¶ 24 The State attempts to save the statute from its constitutional failings by interpreting it with terms derived from a similar statute, the criminal defamation statute enacted in 1973. Unlike its overbroad predecessor, the defamation statute only punishes speech if the author knows it to be false and intends it to harm the subject of the speech:

A person is guilty of criminal defamation if he knowingly communicates to any person orally or in writing any information which he knows to be false and knows will tend to expose any other living person to public hatred, contempt, or ridicule.

Section 76-9-404. The State argues that this definition of defamation should be incorporated in the criminal libel statute, which defines “libel” as “a malicious defamation” and provides no separate definition of the term “defamation.” See Utah Code Ann. § 76-9-501 (2001). The State argues that when the legislature enacted the criminal defamation statute and simultaneously reenacted the criminal libel statute without amendment, the legislature intended to discard the common-law definition of defamation and replace it with the definition articulated in section 76-9-404. Interpreted in this way, the State asserts, the libel statute exceeds constitutional requirements by punishing only knowing falsehood and allowing truth as an absolute defense.

¶ 25 The State correctly notes that we afford statutes a strong presumption of constitutionality, State v. Lopes, 1999 UT 24, ¶ 6, 980 P.2d 191, and will, whenever possible, construe a statute so as to save it from constitutional infirmities. State v. Morrison, 2001 UT 73, ¶ 12, 31 P.3d 547. We are, however, limited in doing so by reasonable canons of statutory construction. “[W]e 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.’ ” Assoc. Gen. Contrs. v. Bd. of Oil, Gas & Mining, 2001 UT 112, ¶ 30, 38 P.3d 291 (quoting Berrett v. Purser & Edwards, 876 P.2d 367, 370 (Utah 1994)); see also Arredondo, 2001 UT 29 at ¶ 12, 24 P.3d 928. In considering the ordinary meaning of the terms of a statute, we will not interpret the language so that it results in an application that is “ ‘unreasonably confused, inoperable, [or] in blatant contradiction of the express purpose of the statute.’ ” O’Keefe v. Utah State Ret. Bd, 956 P.2d 279, 281 (Utah 1998) (quoting Morton Int’l, Inc. v. Auditing Div., 814 P.2d 581, 590 (Utah 1991)). The State contends that the word “defamation” in the criminal libel statute should be defined by reference to the criminal defamation statute. The problem with that approach, however, is that the plain language of the statute would then fail to clearly inform citizens of the prohibited conduct. “To avoid chilling the exercise of vital First Amendment rights, restriction of expression must be expressed in terms which clearly inform citizens of prohibited conduct and in terms susceptible of objective measurement.” Fitts, 779 P.Supp. at 1516. Further, “[bjecause First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.” NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). The criminal libel statute contains no indication that it is to be read by reference to another statute. The statute does not explicitly cross-reference the defamation statute, and the definition of “libel” provided in the statute gives no hint that the terms are explicated elsewhere. The terms “malicious” and “defamation” both have meanings at common law, see Black’s Law Dictionary 427-28, 968 (7th ed.1999), and in no way are identified as terms of art by the statute. Indeed, there is no reason for the reader to conclude the two statutes are linked, especially given the fact that each one falls in a different chapter of the penal code, criminal defamation being under “offenses against privacy” and criminal libel under “libel and slander.”

¶ 26 Adopting the State’s interpretation would also make the statute unduly confusing. When considering statutes relating to the same subject matter, we attempt to construe them in harmony, Lyon v. Burton, 2000 UT 19, ¶ 17, 5 P.3d 616, and such that “effect is given to every provision in all of them.” Murray City v. Hall, 663 P.2d 1314, 1318 (Utah 1983). The criminal defamation statute prohibits “defamation,” which is defined as a knowing falsehood, that is, a statement the speaker knows to be false and knows will tend to expose another to contempt or ridicule. Utah Code Ann. § 76-9-404 (2001). The criminal libel statute, on the other hand, prohibits “malicious defamation” in written form. Utah Code Ann. § 76-9-501 (2001). Under the State’s interpretation, in which the definition of “defamation” would be adopted from the criminal defamation statute, criminal libel would be defined as a “malicious knowing falsehood.” Thus, under the State’s theory, one statute prohibits “knowing falsehood” in any form while the other prohibits “malicious knowing falsehood” in written form. Both statutes, however, provide the same punishment. There is no apparent reason why the legislature would create two crimes, both prohibiting the same conduct, both providing the same punishment, and yet one of the two also requiring a showing of malice.

¶ 27 If we read the two statutes based on their plain language, however, this difficulty evaporates. While one statute prohibits knowing falsehoods, the other prohibits statements made maliciously with the intent to harm the reputation of another. Interpreted in this way, the statutes do not significantly overlap and the provisions of each retain independent meaning.

¶ 28 Finally, the State argues that we must presume from the fact that the legislature reenacted the criminal libel statute in 1973 that it was aware of the requirements established by the United States Supreme Court and intended that the criminal libel statute borrow the definition of defamation from the criminal defamation statute. We have stated that “it is assumed that whenever the legislature enacts a provision it has in mind previous statutes relating to the same subject matter.... ” Murray City, 663 P.2d at 1318. This presumption, however, does not inevitably lead to the conclusion that the legislature reenacted the criminal libel statute with knowledge of constitutional requirements and an intent that the statute be read to include them without so specifying. Such a possibility is rebutted by the fact that when reenacting the criminal libel statute the legislature also reenacted the criminal slander statute-a statute that uses gender-based distinctions that could readily be deemed unconstitutional. See Ivey v. State, 821 So.2d 937, 945 (Ala.2001) (citing Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), declaring unconstitutional a state statute that imposed alimony obligation on husband but not wife). Thus, while we are generally inclined to presume the legislature acts with knowledge of constitutional requirements and an intent to comply with them, we cannot in good conscience make that leap of faith here. Id. (“The fact that in reenacting the criminal defamation statute the Legislature retained this unconstitutional gender-based provision rebuts any presumption that the Legislature intended to comply with United States Supreme Court precedents... .”).

¶ 29 Given that the statute contains no indication that its terms are defined elsewhere, that reading the two statutes as linked places them in conflict, and that there is no cause to presume the legislature intended the statutes be read together, we conclude that the libel statute does not incorporate the definition of defamation found in the criminal defamation statute. To rule otherwise would require us to read substantive terms into the statute that are not already there. See Assoc. Gen. Contrs., 2001 UT 112 at ¶ 30, 38 P.3d 291 (stating we will not read substantive terms into a statute); see also Fitts, 779 F.Supp. at 1511 (refusing to read “actual malice” into statute without such language because doing so would invade the province of the legislature); Ivey, 821 So.2d at 949 (same); Gottschalk, 575 P.2d at 296 (same); Weston, 528 S.W.2d at 416 (same); Eberle, 55 Cal.App.3d at 433, 127 Cal.Rptr. 594 (same); State v. Helfrich, 277 Mont. 452, 922 P.2d 1159, 1161 (1996) (same); Commonwealth v. Armao, 446 Pa. 325, 286 A.2d 626, 632 (1972) (same). Based upon the plain language of the statute, therefore, we hold that the criminal libel statute prohibits defamatory statements without regard for the truth of the statements or whether they were made knowingly or recklessly. Thus, the statute is overbroad.

CONCLUSION

¶30 We hold that Utah’s criminal libel statute, Utah Code Ann. §§ 76-9-501 to - 503, infringes upon a substantial amount of constitutionally protected speech by punishing false statements regarding public figures made without knowledge or recklessness and true statements regarding public figures. The statute is therefore overbroad and unconstitutional. We reverse the denial of I.M. L.’s motion to dismiss.

¶ 31 Justice HOWE and Judge BILLINGS concur in Chief Justice DURHAM’S opinion.

¶ 32 Having disqualified himself, Associate Chief Justice DURRANT does not participate herein; Court of Appeals Judge JUDITH M. BILLINGS sat.

RUSSON, Justice,

concurring in the result:

¶ 33 I concur in the result of the court’s opinion. I write separately, however, to state why I think Utah’s criminal libel statute, Utah Code Ann. § 76-9-502 (2001), is unconstitutional on its face, and go no further.

¶ 34 Modern libel jurisprudence, both civil and criminal, begins with two landmark United States Supreme Court decisions made within months of each other almost four decades ago: New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). In New York Times v. Sullivan, the Court held that public officials could not recover in a civil action for defamatory statements unless such statements were both (1) false and (2) made with “actual malice.” The decision thus provided truth as an absolute defense and created a higher standard for recovery beyond common law malice. Common law malice is limited to mere “ill will or spite.” See, e.g., Cox v. Hatch, 761 P.2d 556, 560 n. 3 (Utah 1988). In contrast, the United States Supreme Court established that “actual malice” required a showing that a defamatory statement was made with “knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times, 376 U.S. at 279-80, 84 S.Ct. 710. Compare Black’s Law Dictionary 1109 (4th ed.1968) (defining “malice” in pre-New York Times v. Sullivan common law context) until Black’s Law Dictionary 968 (7th ed.1999) (defining “actual malice” and explaining how relative meanings of “malice” and “actual malice” have changed over time). Accordingly, “actual malice” and “New York Times malice” entered the lexicon of contemporary libel jurisprudence.

¶ 35 Soon thereafter, in Garrison v. Louisiana, the United States Supreme Court struck down Louisiana’s criminal libel statute on constitutional grounds identical to those articulated in New York Times. Applying the “Neto York Times rule,” the Court stated succinctly that, in regard to criticism of public officials, “[wjhether the libel law be civil or criminal, it must satisfy relevant constitutional standards.” Garrison, 379 U.S. at 67 n. 3, 85 S.Ct. 209. Accordingly, the Louisiana statute was found to be deficient because it (1) failed to provide truth, as an absolute defense and (2) allowed for punishment without a showing of “actual malice” as defined in New York Times.

¶ 36 In the wake of New York Times and Garrison, numerous state criminal libel statutes collapsed under constitutional challenges for not incorporating truth as an absolute defense and failing to require demonstration of “actual malice.” For example, in 1972 the Supreme Court of Pennsylvania found that state’s criminal libel statute unconstitutional, stating flatly that “[t]he statutory language makes no provision for truth being an absolute defense. Likewise, no recognition is given the reckless disregard and knowing falsity standard mandated by New York Times and Garrison.” Commonwealth v. Armao, 446 Pa. 325, 286 A.2d 626, 632 (1972); see also Eberle v. Mun. Ct, 55 Cal.App.3d 423, 127 Cal.Rptr. 594, 600 (1976); Ivey v. State, 821 So.2d 937, 949 (Ala.2001); Gott-schalk v. State, 575 P.2d 289, 296 (Alaska 1978); Weston v. State, 258 Ark. 707, 528 S.W.2d 412, 416 (1975); State v. Helfrich, 277 Mont. 452, 922 P.2d 1159, 1162 (1996); Fitts v. Kolb, 779 F.Supp. 1502, 1515, 1519 (D.S.C. 1991). Even prior to New York Times and Garrison, some authorities had begun to question the very necessity of criminal libel statutes in the modern age, when private civil remedies for defamation were readily available. See, e.g., Garrison, 379 U.S. at 69, 85 S.Ct. 209.

¶ 37 Constitutional statutory analysis requires focus on the plain meaning of the words of the statute and how such plain meaning comports with current constitutional standards. Under such an analysis, the Utah criminal libel statute clearly fails for the same reason similar statutes in other states have failed. The Utah statute on its face (1) does not provide truth as an absolute defense and (2) allows for punishment of defamatory statements concerning public officials without a showing of “actual malice.” Instead, the language of the statute allows for criminal punishment of all statements made with “malicious intent” about any person, without any reference to whether the statements are true or false.

¶ 38 The State attempts to rescue the statute from its constitutional shortcomings by grafting definitions taken from other parts of the criminal and civil code. Not only is this argument legally incorrect — particularly the importing of terms from the civil code into the criminal code — but it ultimately ignores the plain language of the criminal libel statute. “Malice” has not carried the same meaning as “actual malice” in libel jurisprudence since New York Times and Garrison were decided almost forty years ago. Those decisions also made truth an absolute defense. The Utah criminal libel statute neither contains the New York Times “actual malice” constitutional language nor provides for truth as an absolute defense. No amount of standing the statute on its head can make it say what it does not say.

¶ 39 Accordingly, I agree with the majority in holding Utah’s criminal libel statute, Utah Code Ann. § 76-9-502, unconstitutional on its face.

WILKINS, Justice,

concurring in the result:

¶ 40 I concur in the result reached by the lead opinion, but for different reasons than those set forth therein.

¶ 41 For purposes of this appeal, the defendant admits that the statements he created and displayed on his web site were false; that they were statements that impugned the honesty, integrity, virtue and reputation of the school’s principal, his secretary and probably other faculty members; that he published the various statements intentionally in order to expose the faculty, including the principal and his secretary, to public hatred, contempt, or ridicule and that he did it because he hated them and not for any good motive or justifiable end.

¶ 42 The First Amendment was never intended to protect intentional falsehood levied against innocent, private persons. Lies serve no good purpose, serve no valid public purpose, and have no protected status in our public discourse. One who knowingly lies for the expressed purpose of doing harm to another, as did the defendant in this instance, cannot claim the protection of the constitution for his volitional breach of the social contract.

¶ 43 The statute defendant challenges, Utah Code section 76-9-502, was reenacted in 1974, following the decisions of the Supreme Court of the United States in both New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). Those decisions explained that the constitution prohibits prosecution for criminal libel without proof of actual malice on the part of the defendant, which the Court in New York Times defined as a statement made “with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co., 376 U.S. at 279-80, 84 S.Ct. 710.

¶ 44 Once the Supreme Court of the United States has announced a constitutional principle, it controls the future course of the law in that area. This is true with the application of the actual malice standard announced in New York Times and Garrison. As we said in Seegmiller v. KSL, Inc., 626 P.2d 968 (Utah 1981), the state statutes regarding liability for libel and slander that were enacted prior to New York Times “must now, of course, be read in view of New York Times v. Sullivan.” Id. at 975. This approach, that of automatically adopting authoritative direction from the Supreme Court of the United States as part of our statutory and case law, applies even more in circumstances where the legislature has reconsidered and reenacted a statute after such a ruling.

¶45 Here, as a single event, the Utah Legislature enacted both a criminal defamation statute requiring proof that the defendant communicates information which the defendant “knows to be false and knows will tend to expose any other living person to public hatred, contempt, or ridicule,” Utah Code Ann. § 76-9-404 (1999), and the criminal libel statute that is the subject of this appeal, Utah Code Ann. § 76-9-502 (1999). They appear as consecutive sections in the criminal statutes. If the Legislature had stopped there, I would have urged my colleagues to apply the gloss of New York Times and its progeny to the statute in question, and uphold the decision of the trial judge in this case.

¶ 46 However, when the Legislature went on to enact section 76-9-503(1), adopting a presumption of malice “if no justifiable motive for making [the allegedly injurious publication] is shown,” they went too far. Such a presumption of malice is not compatible with the “actual malice” required by the constitution. One must simply ignore section 76-9-503(1) in order to read the actual malice requirement into the “malicious intent” language of section 76-9-502. This we cannot do under our rules of statutory review, even after granting deference to the Legislature and presuming constitutionality where possible.

¶ 47 The constitution does not protect speech that is admittedly false, intended to harm, aimed at private citizens, and otherwise defamatory. As Mr. Justice Brennan wrote for the Court in Garrison, “[T]he use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated falsehood falls into that class of utterances which ‘are ... of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’” 379 U.S. at 75, 85 S.Ct. 209 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942)). The quality of our society depends upon the honor of its citizens. Although we are under no obligation as citizens to agree with every act of every citizen, we are required to abide by proscriptions of society with honor if we are to continue as a civil society. To ignore this obligation of citizenship is to tear at the fabric that holds us together, and ultimately risks, not preserves, the freedom we celebrate.

¶ 48 If the defendant in this instance did intentionally publish the statements attributed to him, knowing either that they were false or that he had no basis upon which to believe that they were not false, his behavior must be corrected. Private citizens such as school administrators and teachers are entitled to be free of such unwarranted, destructive, personal attacks. Moreover, one need not abandon dignity and honor to fully support the freedoms of speech guaranteed by the constitution. The Legislature should consider revising the criminal libel statute to clearly set forth the actual malice standard announced by the Supreme Court of the United States in New York Times and its progeny, and remove the troubling language of presumed malice in section 76-9-503(1).

      . The complaints apparently derived from concern that the web site in some way was a precursor to school violence. The web site, however, contained no references to violence or threats of any kind. Cf. J.S. v. Bethlehem Area Sch. Dist., 757 A.2d 412, 416 (Pa.2000) (expulsion of child upheld where child created web site that proposed murdering teacher).

      . According to I.M.L., none of the other students who created similar web sites were arrested or incarcerated.

      . Generally, we avoid reaching constitutional issues if a case can be decided on other grounds. See West v. Thomson Newspapers, 872 P.2d 999, 1007 (Utah 1994). Defamation is an area of law particularly well suited to being resolved on state law grounds. Id. at 1005. In this appeal, however, we go directly to the question of federal constitutionality because I.M.L. has only challenged the statute as violating the United States Constitution.

      . In this appeal, we decide only whether the criminal libel statute is unconstitutional on its face. Contrary to Justice Wilkins’s analysis, we do not consider the statute as applied to the circumstances of this case. This ruling in no way expands constitutional protection to intentional, knowing falsehoods made to disparage officials. Further, we need not, and do not, come to any conclusions about the extent of First Amendment protection that should be afforded Internet publications such as the one here, nor do we consider whether any of the persons attacked by this particular publication qualify as public figures. Because we do not reach beyond the statute, we also need not consider whether a publication such as this, authored by a minor and placed inconspicuously on an obscure web address, is reasonably presumed harmful to the reputations of those allegedly impugned by the text. Cf. West, 872 P.2d at 1008 n. 14 (stating that civil libel requires a showing that the victim was actually exposed to "public hatred, contempt or ridicule”); Cox v. Hatch, 761 P.2d 556, 561 (Utah 1988) (same).

      . The Court also noted that where private defamation suits are available, there is little need for statutes that criminalize defamation:
      Changing mores and the virtual disappearance of criminal libel prosecutions lend support to the observation that "under modern conditions, when the rule of law is generally accepted as a substitute for private physical measures, it can hardly be urged that the maintenance of peace requires a criminal prosecution for private defamation.”

        Id. at 69, 85 S.Ct. 209 (quoting Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 924 (1963)).

      . Utah's criminal libel statute has existed since at least 1876 and has been modified very little since that time. See Comp. Laws Utah §§ 1955-1959 (1876); 2 Comp. Laws Utah §§ 4489-4498 (1888); Rev. Stat. Utah §§ 4196-4205 (1898); Comp. Laws Utah §§ 4196-4205 (1907); Comp. Laws Utah §§ 8072-8081 (1917); Rev. Stat. Utah §§ 103-38-1 to -8 (1933); Utah Code Ann. §§ 101-38-1 to -8 (1943); Utah Code Ann. §§ 76-40-1 to -8 (1953). When Utah's criminal code was reenacted in 1973, criminal libel was made a class A misdemeanor and the word ''blacken” in the definition of libel was changed to "defame or darken.” 1973 Utah Laws ch. 196, part 5, §§ 76-9-501 to -506. In 1991, the statute was modified to make criminal libel a class B misdemeanor. 1991 Utah Laws ch. 241, § 100.

      . In this appeal, the State does not support the trial court’s rationale in finding the statute constitutional. Instead, the State asserts that "the juvenile court correctly concluded that the Criminal Libel Statute was constitutional, but not for the reasons it stated.”

      . The civil statute defines “libel" using the same language as the criminal statute with one exception: Where the criminal statute uses the words “defame or darken” the civil statute uses the word "blacken.” Compare Utah Code Ann. § 76-9-501 (2001) with Utah Code Ann. § 45-2-2 (2001).

      . In the trial court's reading of the criminal libel statute, the term “malicious” in section 502 refers to the common-law definition of malice, whereas the same term in section 501 refers to "actual malice" as defined by the United States Supreme Court. This inconsistent reading of statutory terms, however, is not supported by the plain language of the statute and, we believe, would further confuse the language of an already vague statute. See, infra, note 11.

      . I.M.L. asserts that this argument by the State is procedurally improper since it is raised for the first time on appeal. As I.M.L. notes, we may affirm a judgement based upon different grounds than those relied upon below, but only so long as the ground or theory we rely upon was raised below or is "apparent on the record.” Bailey v. Boyles, 2002 UT 58, ¶ 10, 52 P.3d 1158 (quoting Dipoma v. McPhie, 2001 UT 61, ¶ 18, 29 P.3d 1225); see also Limb v. Federated Milk Producers Ass’n, 23 Utah 2d 222, 461 P.2d 290, 293 n. 2 (1969) (quoting 5 C.J.S. Appeal & Eiror § 1464 (1958)). We need not decide here, however, whether the State's theory is apparent on the record since we find the State's theory without merit and do not affirm the holding of the trial court.

      . The criminal libel statute may also be vulnerable to an attack as void for vagueness, due to the statute’s ambiguous definition of libel, see Fitts, 779 F.Supp. at 1516-17; Gottschalk, 575 P.2d at 292-95, and its failure to define what constitutes a "justifiable motive” under section 76-9-503(1). It is also disconcerting that the statute has only rarely, and possibly inconsistently, been applied. We need not pursue this inquiry, however, since we find the statute overbroad.

      .Amici curiae also attack Utah’s criminal defamation statute, stating that United States Supreme Court cases raise a substantial doubt "whether any criminal libel statute would be held constitutional.” The State counters that Utah's criminal defamation statute is constitutional because it punishes only knowing falsehoods. We need not consider, however, whether Utah’s criminal defamation statute passes constitutional muster since we conclude that the criminal libel statute does not incorporate the terms of the criminal defamation statute.

      . The State’s interpretation becomes increasingly redundant when applied to other offenses within the same chapter as libel. Section 76-9-509 prohibits conveying to a publisher "any false or libelous statement.” Utah Code Ann. § 76-9-509 (2001). If "libel” means a malicious, knowingly false statement, then this section is redundant, prohibiting both false statements and malicious, knowingly false statements.

      . The criminal slander statute provides: "A person is guilty of slander if he orally, falsely and knowingly, imputes to any female, married or unmarried, a lack of chastity.” Utah Code Ann. § 76-9-507 (2001).


source: Caselaw Access Project

author: WILKINS, Justice:

license: Public Domain

text:
    2002 UT 111
    STATE of Utah, Plaintiff and Appellee, v. Jeffrey Alan BYRUM, Defendant and Appellant.
    No. 20010410.
    Supreme Court of Utah.
    Nov. 19, 2002.
    Mark L. Shurtleff, Att’y Gen., Jeffrey T. Colemere, Asst. Att’y Gen., Salt Lake City, for plaintiff.
    Catherine E. Lilly, Salt Lake City, for defendant.
   WILKINS, Justice:

¶ 1 Appellant Jeffrey Alan Byrum (“By-rum”) challenges the trial court’s interpretation of section 77-16a-201(2) of the Utah Code (Supp.2001), the guilty and mentally ill (“GAMI”) probation statute. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 In June of 1993, Byrum was charged by information with four counts of sodomy upon a child and one count of sexual abuse of a child. Byrum pled guilty and mentally ill to one count of attempted sodomy on a child, a first degree felony, in violation of Utah Code sections 76 — 1-102 and 76-5-403.1 (1990). On July 19, 1994, Byrum was sentenced to a prison term of five years to life, which was stayed, and the defendant was placed on probation for life.

¶ 3 Over six years later, Byrum was charged with violating the terms of his probation. He admitted the violation, and his probation was revoked and reinstated. Three months later, on December 11, 2000, Byrum was again charged with probation violations. In a motion to dismiss, Byrum challenged the jurisdiction of the court, arguing that his probation had terminated by operation of law. The trial court denied his motion, concluding that the governing statute did not set a five-year limit upon a GAMI defendant’s probation when the offense carries a potential life sentence. Byrum then petitioned this Court for interlocutory review, which was denied. On March 19, 2001, Byrum admitted the second violation. The trial court ordered his probation revoked and reinstated; the trial court also reaffirmed its previous ruling, holding, in essence, that it continued to have jurisdiction over the defendant. Byrum appeals that final order.

STANDARD OF REVIEW

¶ 4 The issue of whether the trial court properly interpreted the GAMI probation statute is a question of law which we review for correctness. See, e.g., State v. Lusk, 2001 UT 102, ¶ 11, 37 P.3d 1103.

ANALYSIS

¶ 5 Title 77, chapter 16a of the Utah Code addresses the commitment and treatment of the mentally ill, and section 77-16a-201 specifically governs the terms of probation for GAMI defendants. Utah Code Ann. § 77-16a-201 (Supp.2001). Subsection (2) states that “[t]he period of probation may be for no less than five years, or until the expiration of the defendant’s sentence, whichever occurs first.” § 77~16a-201(2).

¶ 6 Byrum argues that, pursuant to section 77-16a-201(2), his period of probation expired on July 19, 1999, and the trial court no longer had jurisdiction to issue an order to show cause or hold a hearing regarding By-rum’s probation violations. Byrum essentially argues that the phrase “no less than five years” means no more than five years and that, therefore, his probation terminated by operation of law five years after his sentencing.

¶ 7 “When we interpret statutes, our primary goal is to give effect to the legislature’s intent in light of the purpose the statute was meant to achieve.” Evans v. State, 963 P.2d 177, 184 (Utah 1998) (citations omitted). We look first to the plain language of the statute because it is “the best evidence of the true intent and purpose of the Legislature.” Id. (internal citations omitted).

¶ 8 The plain language of the statute creates a minimum probationary period of five years when a GAMI defendant’s sentence is five years or more. The phrase “no less than five years” sets a floor, not a ceiling. The statute requires that the probationary period of a GAMI defendant be equal to or greater than five years when the actual sentence is equal to or greater than five years. § 77-16a-201(2). If a GAMI defendant’s sentence is for less than five years, the statute allows the period of probation to expire at the end of the sentence. In this case, Byrum was sentenced to five years to life. Since the end of his sentence is the end of his' natural life, Byrum must be on probation for at least five years, and may be on probation for life pursuant to the GAMI probation statute.

¶ 9 Byrum argues that the presence of a separate statute capping a non-GAMI defendant’s probation at thirty-six months is evidence that the Legislature intended to limit a GAMI defendant’s probation to five years. Compare Utah Code Ann. § 77-18-1(10) (Supp.2001), with § 77-16a-201(2). If anything, the existence of a separate statute— with an unique focus and dissimilar language — is evidence that the Legislature intended to treat mentally ill probationers differently than standard probationers. As this Court noted in State v. DePlonty, “the offender found guilty and mentally ill is held accountable for his criminal conduct, yet because of his mental illness, may need specialized treatment.” 749 P.2d 621, 626 (Utah 1987). We have no doubt that the Legislature intended to provide specialized treatment for mentally ill defendants and probationers — treatment that may require longer terms of probation for GAMI defendants. Longer probationary periods allow the courts to better supervise mentally ill probationers and better protect the public, and are entirely consistent with the current statutory scheme governing the mentally ill.

CONCLUSION

¶ 10 In the trial court’s final order revoking and reinstating Byrum’s probation for the second time, it concluded that section 77-16a-201(2) did not terminate Byrum’s probation after five years and that, therefore, the court continued to have jurisdiction over the defendant. The trial court’s ruling is affirmed.

¶ 11 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice RUSSON, and Judge ORME concur in Justice WILKINS’ opinion.

¶ 12 Justice HOWE does not participate herein; Court of Appeals Judge GREGORY K. ORME sat.

      . We note that the Legislature recently amended this statute to clarify the language at issue in this case. 2002 Utah Laws 61 (effective May 6, 2002). Our interpretation of the 2001 version is consonant with the revised statute, which reads: "The period of probation for a felony offense committed by a person who has been found guilty and mentally ill at the time of the offense may be for no less than five years.” Utah Code Ann. § 77-16a201 (Supp.2002).


author: RUSSON, Justice:

text:
    2002 UT 112
    ATLAS STEEL, INC., Petitioner, v. UTAH STATE TAX COMMISSION, Respondent.
    No. 20010483.
    Supreme Court of Utah.
    Nov. 19, 2002.

      Roger 0. Tew, David E. Sloan, Salt Lake City, for petitioner.
    Mark L. Shurtleff, Att’y Gen., Gale K. Francis, Asst. Att’y Gen., Salt Lake City, for respondent.
   RUSSON, Justice:

¶ 1 Atlas Steel, Inc. (“Atlas”), seeks review of a Utah State Tax Commission (“Commission”) ruling that its purchase of certain equipment was subject to sales and use tax. We affirm.

BACKGROUND

¶ 2 Sometime between June 30, 1991, and December 31, 1996, Atlas purchased certain equipment and parts. Specifically, Atlas purchased (1) a “Newell 98104 Super Heavy Duty Dry/Dry Shredding System,” (2) a capped disc rotor for use in the new shredder, (3) a hard-faced capped rotor, also for use in the new shredder, and (4) a Mitsubishi hydraulic excavator, which replaced four cable cranes (collectively, “equipment”). The shredder is designed to accept raw materials as large as whole cars. After the raw materials have been shredded, they are transferred by conveyors to a closed air loop separation unit that sorts the materials into various types.

¶ 3 The shredder cost approximately $3,000,000. Installation of the shredder system was a lengthy process, requiring approximately 6,000 hours of labor and the use of a 25-ton hydraulic crane for at least six weeks. The installation cost approximately $1,000,000. Atlas did not pay sales tax on the purchase of the equipment.

PROCEDURAL HISTORY

¶ 4 The Auditing Division of the Commission (“Auditing Division”) conducted an audit of Atlas for the period of June 30, 1991, through December 31, 1996 (“audit period”). On March 23, 1995, the Auditing Division issued a statutory notice declaring that Atlas owed sales tax and interest in the amount of $57,470.91 for the purchase of equipment during the audit period. In response, Atlas filed a petition for redetermination with the Commission. A formal hearing was held before the Commission on November 8 and 9, 1999. On September 12, 2000, the Commission issued its findings of fact, conclusions of law, and final decision upholding the Auditing Division’s sales tax assessment. Atlas subsequently filed a petition for reconsideration and clarification with the Commission on September 29, 2000, which was denied by the Commission on May 15, 2001. Atlas timely sought a writ of review from this court on June 8, 2001.

¶ 5 In the proceedings before the Commission, Atlas maintained that its purchase of equipment qualified for the sales tax exemption (“manufacturing equipment sales tax exemption”) found in Utah Code Ann. § 59-12-104(15) (1992). Subsection 59-12-104(15) exempts sales of machinery and equipment purchased by a manufacturer for use in new or expanding operations in any manufacturing facility in Utah. “Manufacturing facility” is defined as “an establishment described in SIC Codes 2000 to 3999 of the 1987 Standard Industrial Classification Manual, of the federal Executive Office of the President, Office of Management and Budget.” Id. § 59-12-104(15).

¶ 6 Atlas argued before the Commission that Atlas met the definition of a manufacturing facility because it is an establishment that is described in SIC Code 3313 “Elec-trometallurgical Products, Except Steel,” or alternatively, SIC Code 3399 “Primary Metal Products, Not Elsewhere Classified,” and therefore its purchase of the equipment qualified for the manufacturing equipment sales tax exemption.

¶ 7 The Commission rejected Atlas’ arguments that Atlas was described specifically in either SIC Code 3313 or SIC Code 3399. In rejecting Atlas’ position that Atlas was described in SIC Code 3313, the Commission found that Atlas “[did] not use either an electrometallurgical or metallothermic process” and therefore concluded that Atlas was not “an establishment described in SIC Code 3313.” In addition, in rejecting Atlas’ arguments regarding SIC Code 3399, the Commission interpreted SIC Code 3399 to require that the types of products listed in that code and the types of products manufactured by an establishment be similar in order for that establishment to be described in that particular code. The Commission concluded that none of Atlas’ products were similar to those listed in SIC Code 3399 and therefore SIC Code 3399 did not describe Atlas.

¶ 8 After rejecting Atlas’ arguments that Atlas was described in SIC Codes 3313 and 3399, the Commission also concluded that “the SIC code that best describes [Atlas] is code 5093, Scrap and Waste Materials,” and therefore that Atlas was not eligible for the manufacturing equipment sales tax exemption. In other words, because the Commission determined that Atlas was best described in SIC Code 5093, the Commission concluded that Atlas was not “described in SIC Codes 2000 to 3999 of the 1987 Standard Industrial Classification Manual.” Id. § 59-12-104(15).

¶ 9 In determining that Atlas was best described in SIC Code 5093, and in reaching its conclusion that Atlas was not a manufacturing facility under the statute, that is, was not described in SIC Codes 2000 to 3999 by virtue of its description under SIC Code 5093, the Commission interpreted section 59-12-104(15) as incorporating by reference the “body” of the 1987 Standard Industrial Classification Manual (“SIC Manual”) and its classification scheme, including the SIC Manual’s introductory, explanatory, and commentary sections. The Commission took the position that it was compelled to interpret the statute’s requirement that an establishment be “described in SIC Codes 2000 to 3999,” consistent with the function, use, and interpretation of the SIC Manual and its classification scheme as a whole.

¶ 10 Thus, the Commission explained its interpretation of the statute as follows:

By incorporating the Standard Industrial Classification (“SIC”) system into the manufacturing exemption, the legislature established a “bright-line” test, based on an extensive preexisting classification system, rather than relying on broad definitions. That system recognized that certain “establishments” could conceivably conduct more than one type of activity or could be described by more than one code. It nevertheless rejected the option of using multiple codes, providing instead that “[e]ach operating establishment is assigned an industry code on the basis of its primary activity, which is determined by its principal product or group of products produced or distributed, or services rendered.” SIC Manual, p. 15; see also p. 11. The SIC Code also recognizes that “some manufacturing-type activities” may be performed by other kinds of establishments. (SIC Manual, p. 68). Thus, we believe our obligation is to determine which SIC code most accurately describes the establishment in question. If the code that best describes the establishment is contained in SIC Codes 2000 to S999 of the 1987 Manual, the establishment qualifies. If the code that best describes the establishment is outside that range, the establishment does not qualify.

(Emphasis added.)

¶ 11 Employing this interpretation, the Commission finally concluded that “the SIC code that best describes [Atlas] is [SIC C]ode 5093, Scrap and Waste Materials.”

¶ 12 In view of the foregoing reasons, the Commission ultimately determined that Atlas “did not meet the statutory requirements of a manufacturing facility during the audit period, and the purchases made by [Atlas] during the audit period were subject to sales and use tax.” (Footnote omitted.)

¶ 13 Atlas argues that the Commission erred as a matter of law by misconstruing the sales tax exemption statute. Atlas contends that the Commission went beyond the plain language of the statute by impermissi-bly adopting an unauthorized and more stringent “best described in” standard that incorporated the SIC Manual and classification system as a whole into the statute, instead of applying the “described in” legal standard explicitly set forth in the statute. Atlas maintains that under the statutorily mandated “described in” standard it qualifies as a “manufacturing facility” — and thus for the manufacturing equipment sales tax exemption — under either SIC Code 3313 or SIC Code 3399 and that there is substantial evidence in the record to support the conclusion that it is described in either of those two SIC codes. In addition, Atlas contends that the Commission erred as a matter of law by interpreting SIC Code 3399 to require similarity of products between those listed in SIC Code 3399 and those produced by an establishment in order for an establishment properly to be described by that SIC code. Finally, Atlas argues that the Commission’s findings of fact that Atlas does not use an electrometallurgical process as required by SIC Code 3313 and that Atlas is best described in SIC Code 5093 are erroneous because they are not supported by substantial evidence.

STANDARD OF REVIEW

¶ 14 Our standard of review for this ease is specified by statute. See Utah Code Ann. § 59-1-610 (2000). When reviewing formal adjudicative proceedings of the Commission, we “grant the commission deference concerning its written findings of fact, applying a substantial evidence standard,” id. § 59 — 1— 610(l)(a), but we “grant the commission no deference concerning its conclusions of law, applying a correction of error standard, unless there is an explicit grant of discretion contained in a statute at issue before [us],” id. § 59 — 1—610(l)(b). See also Salt Lake City S. R.R. Co. v. State Tax Comm’n, 1999 UT 90, ¶ 7, 987 P.2d 594; S. Cent. Utah Tel. Ass’n, Inc. v. Auditing Div. of State Tax Comm’n, 951 P.2d 218, 222 (Utah 1997).

¶ 15 Inasmuch as the Commission interpreted section 59-12-104(15) of the Utah Code and the specific language of SIC Codes 2000 to 3999 in concluding that Atlas’ purchase of equipment did not qualify for the manufacturing equipment sales tax exemption, its determination is a matter of statutory interpretation and a conclusion of law that we grant no deference and review for correctness. See Salt Lake Brewing Co. v. Auditing Div. of State Tax Comm’n, 945 P.2d 691, 693 (Utah 1997); Cache County v. Prop. Tax Div. of State Tax Comm’n, 922 P.2d 758, 767 (Utah 1996); Utah Code Ann. § 59-1-610(l)(b).

¶ 16 For purposes of reviewing the Commission’s findings of fact under the substantial evidence standard, Utah Code Ann. § 59-l-610(l)(a), substantial evidence “ ⅛ that quantum and quality of relevant evidence that is adequate to convince a reasonable mind to support a conclusion.’ ” Salt Lake City S. R.R. Co., 1999 UT 90 at ¶ 7, 987 P.2d 594 (quoting First Nat’l Bank of Boston v. County Bd. of Equalization of Salt Lake County, 799 P.2d 1163, 1165 (Utah 1990)).

ANALYSIS

I. INTERPRETATION OF SALES TAX EXEMPTION STATUTE

¶ 17 Atlas first argues that the Commission erred as a matter of law in interpreting section 59-12-104(15) of the Utah Code by concluding that Atlas was not a “manufacturing facility” as defined by the statute because Atlas was not “best described in” SIC Codes 2000 to 3999 but instead was best described in SIC Code 5093. Atlas contends that the Commission impermissibly heightened the standard set forth in the statute to one requiring an establishment to be “best described in” SIC Codes 2000 to 3999 from one merely requiring an establishment to be “described in” the enumerated SIC code range in order to be a manufacturing facility qualifying for the manufacturing equipment sales tax exemption.

¶ 18 The Commission counters that the legislature, in referencing SIC Codes 2000 to 3999 in the definition of a “manufacturing facility,” incorporated by reference into the Utah Code the entire SIC Manual, including its introductory, explanatory, and commentary sections, rather than merely the discrete language of the SIC codes specifically listed in the statute. Based upon its assumption that the legislature incorporated the entire SIC Manual and classification system, the Commission maintains that its “obligation is to determine which SIC code most accurately describes the establishment in question.” In other words, “[i]f the code that best describes the establishment is contained in SIC Codes 2000 to 3999 of the 1987 Manual, the establishment qualifies [but] if the code that best describes the establishment is outside of that range, the establishment does not qualify.” (Emphasis added.)

¶ 19 “ ‘When interpreting statutes, we determine the statute’s meaning by first looking to the statute’s plain language, and give effect to the plain language unless the language is ambiguous.’ ” Wilson Supply, Inc. v. Fradan Mfg. Corp., 2002 UT 94, ¶ 14, 54 P.3d 1177 (quoting Blackner v. State Dep’t of Transp., 2002 UT 44, ¶ 12, 48 P.3d 949); see also State Dep’t of Natural Res. Div. of Wildlife Res. v. Huntington-Cleveland Irrigation Co., 2002 UT 75, ¶ 13, 52 P.3d 1257. Furthermore, “[i]n construing a statute, [we] must assume that ‘each term in the statute was used advisedly; thus the statutory words are read literally, unless such a reading is unreasonably confused or inoperable.’ ” County Bd. of Equalization of Wasatch County v. State Tax Comm’n, 944 P.2d 370, 373 (Utah 1997) (quoting Savage Indus., Inc. v. State Tax Comm’n, 811 P.2d 664, 670 (Utah 1991)) (further quotation omitted).

¶20 Section 59-12-104 of the Utah Code exempts certain sales and uses from taxes imposed by chapter 12 of title 59. Specifically, subsection 59-12-104(15) exempts from sales tax

sales ... of machinery and equipment purchased ... by a manufacturer for use in new or expanding operations ... in any manufacturing facility in Utah.

Utah Code Ann. § 59-12-104(15).

¶ 21 The statute goes on to define “manufacturing facility” as “an establishment described in SIC Codes 2000 to 3999 of the 1987 Standard Industrial Classification Manual, of the federal Executive Office of the President, Office of Management and Budget.” Id. Thus, the definition of manufacturing facility incorporates by reference the language of SIC Codes 2000 to 3999 as it is used in the SIC Manual and classification system.

¶22 Each of the SIC codes specifically referenced in the manufacturing equipment sales tax exemption, SIC Codes 2000 to 3999 — and even in the rest of the SIC codes in the SIC Manual as a whole — employs the phrase “primarily engaged in” to describe establishments. In other words, the plain language of the standard industrial classification system and its attendant codes describes establishments in reference to the activity in which the establishment is primarily engaged. For example, SIC Codes 2000 to 3999 describe establishments “primarily engaged in manufacturing” particular products through certain processes. Other SIC codes describe establishments “primarily engaged in” other activities. Compare, e.g., SIC Manual, Industry Group No. 331, Industry No. 3313 (“primarily engaged in manufacturing”), with SIC Manual, Industry Group No. 509, Industry No. 5093 (“primarily engaged in assembling, breaking up, sorting or wholesale distribution”).

¶ 23 The plain language of the SIC codes, by using the phrase “primarily engaged in,” indicates that only one SIC code can be used to describe an establishment. Even though an establishment may be engaged in several different activities, it can be primarily engaged in only one such activity, with any other activities being secondary or ancillary. This is true not only for SIC Codes 2000 to 3999 but for all of the codes in the SIC Manual and the standard industrial classification scheme as a whole. This interpretation of the SIC codes is compelled by the plain “primarily engaged in” language used in the codes themselves.

¶ 24 Therefore, when the plain language of the statute is read in connection with the plain language of the incorporated SIC codes, the key in determining whether an establishment is described in a particular SIC code is whether that establishment is “primarily engaged in” the activity set forth in that SIC code. In order to be described by SIC Codes 2000 to 3999, the establishment must be “primarily engaged in manufacturing” the types of products referenced in the manner or under the conditions specified.

¶25 According to this statutory scheme, in the ease of SIC Code 3313 for example, an establishment, such as Atlas, is described in SIC Code 3313 if it is “primarily engaged in manufacturing ferro and nonferrous metal additive alloys by electrometallurgical or metallothermic processes, including high percentage ferroalloys and high percentage nonferrous additive alloys.” SIC Manual, Industry Group No. 331, Industry No. 3313, at 174. Similarly, with respect to SIC Code 3399, an establishment, such as Atlas, is described in SIC Code 3399 if it is “primarily engaged in manufacturing primary metal products, not elsewhere classified, such as nonferrous nails, brads, and spikes, and metal powder, flakes, and paste.” SIC Manual, Industry Group No. 339, Industry No. 3399, at 181.

¶26 In determining if an establishment is described in SIC Codes 2000 to 3999, the Commission must make factual determinations as to the activities in which the establishment is engaged, the extent to which an establishment is engaged in those activities, what processes are used in those activities, and what products result from those activities. From those factual determinations, the Commission must then make a legal conclusion as to whether the products created and processes utilized conform to those specified in SIC Codes 2000 to 3999 and whether the establishment is “primarily engaged in manufacturing” those specific products through those specific means.

¶ 27 In the instant case, the Commission interpreted the statute to require it to determine which SIC code out of the entire set of SIC codes best described Atlas. It did not need to do so. The Commission is not required to determine which of the SIC codes “best describes” Atlas. The Commission is merely required to determine if one of the SIC codes in the range from 2000 to 3999 describes Atlas in the manner explained above.

¶ 28 In this case, the Commission, despite using the “best described in” language, did not err in its application of the statute. The Commission conducted a formal hearing at which it accepted evidence and established a factual record regarding Atlas’ activities, processes, and products. On the basis of the evidence received at the formal hearing, the Commission made findings of fact and conclusions of law.

¶ 29 Specifically, from the evidence received at the hearing, the Commission found:

5. [Atlas] cuts and chops automobiles and other scrap metals and materials into smaller more usable pieces for recycling. Those smaller pieces are sorted into different types of materials with unusable parts being discarded. The pieces of ferrous metals are used by steel mills and other steel manufacturers.
8. [Atlas] uses a complex and technologically sophisticated process of shredding, crushing, pulverizing, and sorting to result in ferrous metal which meets its purchasers’ requirements. In addition to resulting in ferrous metals, [Atlas] also supplies nonferrous metals to producers for conversion to usable metals.
10. After the materials have been shredded, they are transferred by conveyors to a closed air loop separation unit which separates the materials into various types. The shredded materials are then transferred by a vibrating magnet feeder to an electromagnetic separation system consisting of two magnetic drums. The first magnetic drum lifts out ferrous materials from the shredded product and discharges them onto a steel pan vibrating conveyor which transfers the materials to a second 'magnetic drum. Together, the two magnetic drums lift out the ferrous materials and carry them to a ferrous picking conveyor.
11. The ferrous picking conveyor allows the operator to select special grades of ferrous materials. Finally, the ferrous product is transferred by a ferrous stacking conveyor to a stock pile or to transport. This ferrous metal product is then sold to steel companies to be used in the production of steel. During this process, the non-ferrous materials are transferred to a nonferrous closed air loop separator. After waste materials have been removed, the nonferrous materials are also transferred by conveyor to stock piles. This nonferrous metal product is also sold.

¶ 30 In view of these detailed findings regarding Atlas’ process and product, the Commission concluded that “the SIC code that best describes [Atlas] is code 5093, Scrap and Waste Materials.” In making this legal conclusion, the Commission implicitly concluded that Atlas was “primarily engaged in assembling, breaking up, sorting, and wholesale distribution of scrap and waste materials.” SIC Manual, Industry Group No. 509, Industry No. 5093, at 301. Given our previous interpretation of the plain language of the statute and the SIC codes, the logical implication of the Commission’s conclusion that Atlas was primarily engaged in assembling, breaking up, sorting, and wholesale distribution of scrap and waste materials and therefore was described in SIC Code 5093 is that Atlas was not described in SIC Codes 2000 to 3999. As a result, the Commission’s conclusion that Atlas was not a manufacturing facility for purposes of the manufacturing equipment sales tax exemption was correct. Despite the Commission’s unnecessary reference to the SIC code that “best describes” an establishment, the fact finding process and basic legal analysis performed by the Commission were consistent with the plain language of the statute and the incorporated SIC codes and were therefore correct.

¶ 31 Atlas also contends that the Commission erred in its interpretation of SIC Code 3399 by requiring that there be similarity between the products listed in SIC Code 3399 and the products produced by an establishment in order for the establishment to be described in that SIC code. We disagree.

¶ 32 SIC Code 3399 “Primary Metal Products, Not Elsewhere Classified” describes: “Establishments primarily engaged in manufacturing primary metal products, not elsewhere classified, such as nonferrous nails, brads, and spikes, and metal powder, flakes, and paste.” SIC Manual, Industry Group No. 339, Industry No. 3399, at 181 (emphasis added). The Commission concluded that “there is nothing on the list [included in SIC Code 3399] which is similar to the products of [Atlas].” The Commission maintains that SIC Code 3399 requires similarity to the listed products to qualify for classification under this SIC code.

¶ 33 As discussed above, the language of the identified SIC codes has been incorporated by reference into the statute. We therefore interpret the language of the SIC codes as we would any other statutory language, applying the traditional rules of statutory construction. We interpret statutes according to their plain language. See supra ¶ 19.

¶ 34 The language of SIC Code 3399 is clear and unambiguous. Black’s Law Die-

tionary 1432 (6th ed.1990) defines “such” as “[o]f that kind, having particular quality or character specified. Identical with, being the same as what has been mentioned. Alike, similar, of the kind.” See also In re Schlanger, 206 Mise. 62, 132 N.Y.S.2d 66, 67 (N.Y.Sur.Ct.1954) (“The phrase, ‘such as’ is one of general similitude and generally defined as indicating matters ‘of the same or like kind.... ’ ”); Erwin v. Steele, 228 S.W.2d 882, 885 (Tex.App.1950) (“[T]he phrase ‘such as’ is as a similitude, classifying articles of the kinds named, which are like or similar to those used_”). The language and list of products in SIC Code 3399 is not exhaustive; however, by employing the phrase “such as” prior to a specific list of products, SIC Code 3399 does require similarity to those listed products. Therefore, in order for a manufacturer to be described in SIC Code 3399, an establishment must manufacture products similar to those identified. The Commission did not misinterpret the language of SIC Code 3399 by concluding that Atlas’ products must be similar to those listed in order for Atlas to be described in SIC Code 3399.

¶ 35 The question of whether the products produced by Atlas are similar to those listed in SIC Code 3399 is a question of law. However, the predicate questions of what' products are actually produced by Atlas and what are those products’ characteristics and qualities are questions of fact.

¶ 36 In its findings of fact, the Commission found that Atlas “cuts and chops automobiles and other scrap metals and materials into smaller more usable pieces for recycling,” that “[t]hose smaller pieces are sorted into different types of materials with the unusable parts being discarded,” and that “[t]he pieces of ferrous metals are used by steel mills and other steel manufacturers.” Given these findings of fact regarding Atlas’ products, the Commission did not err in concluding that “there is nothing on the list [in SIC Code 3399] which is similar to [Atlas’] products.” The lack of similarity in products precludes the conclusion that Atlas is described in SIC Code 3399. Therefore, the Commission did not err in its interpretation of SIC Code 3399 or in its legal conclusion that Atlas is not described in that particular SIC code.

II. FINDINGS OF FACT

¶ 37 Atlas challenges the sufficiency of the evidence to support the Commission’s finding that Atlas does not use an electrometallurgical process in its production activities and the sufficiency of the evidence to support the Commission’s conclusion that Atlas is best described in SIC Code 5093.

¶ 38 In its opening memorandum of law, Atlas focuses its sufficiency of the evidence challenge solely on the Commission’s finding that Atlas does not use an electrometallurgical process. Atlas argues, “The Commission’s finding that. Atlas does not use an electrometallurgical process is not based on any evidence in the record, let alone substantial evidence.”

¶ 39 Given our previous interpretation of the sales tax exemption statute and our holding that the Commission did not err in its application of the statute when it concluded that Atlas is described in SIC Code 5093 and that by virtue of Atlas being described in that code it cannot be described in SIC Codes 2000 to 3999, Atlas’ challenge to the Commission’s finding that it does not use an electrometallurgical process is not relevant. Because we affirm the Commission’s legal conclusion that Atlas is described in SIC Code 5093 and because Atlas does not challenge the sufficiency of the evidence to support the Commission’s findings of fact regarding Atlas’ activities, processes, and products, see supra ¶ 29, that form the basis of its legal conclusion, the question of whether Atlas uses an electrometallurgical process is immaterial. The Commission’s finding of fact in this regard does not impact its legal conclusion that Atlas is described in SIC Code 5093 because it is primarily engaged in assembling, breaking up, sorting, and wholesale distribution of scrap and waste materials. The Commission did not, nor did it need to, rely on this finding of fact in reaching its legal conclusion that Atlas is described in SIC Code 5093.

¶ 40 In its reply memorandum of law, Atlas does attempt to marshal the evidence and challenge the Commission’s findings of fact underlying its legal conclusion that Atlas is primarily engaged in assembling, breaking up, sorting and wholesale distribution of scrap and waste material and therefore described in SIC Code 5093. However, this eleventh-hour attempt to marshal the evidence and challenge the sufficiency of the evidence in the reply brief is too late.

¶ 41 In challenging the Commission’s findings, Atlas “bears the ‘burden of demonstrating that [the] factual findings are erroneous.’ ” S. Cent. Utah Tel. Ass’n, Inc. v. Auditing Div. of State Tax Comm’n, 951 P.2d 218, 225-26 (Utah 1997) (quoting Alta Pacific Assocs. v. State Tax Comm’n, 931 P.2d 103, 110 (Utah 1997)). In order to prevail under such a burden, Atlas “must marshal all of the evidence supporting the findings and show despite the supporting-facts and in light of the conflicting evidence, the findings are not supported by substantial evidence.” Beaver County v. State Tax Comm’n, 916 P.2d 344, 355-56 (Utah 1996); see also Alta Pac. Assocs., 931 P.2d at 110; S. Cent. Utah Tel. Ass’n, Inc., 951 P.2d at 226. An appellant seeking to challenge the sufficiency of the evidence to support a finding of fact must undertake and meet its heavy marshaling burden in its opening memorandum of law on appeal. An appellant cannot hold its sufficiency of the evidence challenge in reserve and wait to marshal the evidence in its reply brief. Allowing such a procedure would deprive the appellee of any opportunity to respond and defend the sufficiency of the evidence and the findings of fact.

¶ 42 In this case, the Commission noted that Atlas’ focus on challenging the sufficiency of the evidence to support the Commission’s finding of fact that Atlas does not use an electrometallurgical process was misplaced. The Commission argued that Atlas had not met its marshaling burden with regard to the material findings of fact, that is, those findings of fact related to Atlas’ activities, processes, and products that served as the Commission’s basis for concluding that Atlas is described in SIC Code 5093. It was only at that point that Atlas attempted to address and challenge those findings of fact in its reply brief. Atlas’ challenge to the sufficiency of the evidence to support those findings of fact in the reply brief was too late. The fact that the Commission, out of an abundance of caution, marshaled evidence in favor of its findings of fact and argued that evidence’s legal sufficiency to support its finding of fact and ultimate legal conclusion did not give Atlas license to revive or shift the focus of its marshaling argument.

¶ 43 Therefore, we do not need to evaluate Atlas’ sufficiency of the evidence challenge to the Commission’s finding of fact related to SIC Code 3313 in that the finding is not relevant because we affirm the Commission’s final order based upon the Commission’s findings of fact supporting its legal conclusion that Atlas is described in SIC Code 5093. We accept those findings of fact as true because Atlas has failed to meet its marshaling burden in challenging those findings in its opening memorandum of law.

CONCLUSION

¶ 44 For the foregoing reasons, we affirm the Commission’s final order.

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

      . For the majority of the audit period, the 1992 version of the manufacturing equipment sales tax exemption was in effect. In 1995, the legislature amended this sales tax exemption provision. The amended version became effective July 1, 1995. The relevant portions of the 1995 version are virtually the same as those in the 1992 version. Compare Utah Code Ann. § 59-12-104(15) (1992), with Utah Code Ann. § 59-12-104(15)(a)(i)(A)-(B) (1995). References in this opinion will be to the 1992 version of the statute, which was in effect for a majority of the audit period.

      . SIC Code 3313 in relevant part reads: "Establishments primarily engaged in manufacturing ferro and nonferrous metal additive alloys by electrometallurgical or metallothermic processes, including high percentage ferroalloys and high percentage nonferrous additive alloys.” Executive Office of the President, Office of Management and Budget, Standard Industrial Classification Manual, Industry Group No. 331, Industry No. 3313, at 174 (1987) [hereinafter SIC Manual].

      .SIC Code 3399 reads: "Establishments primarily engaged in manufacturing primary metal products, not elsewhere classified, such as nonferrous nails, brads, and spikes, and metal powder, flakes, and paste.” SIC Manual, Industry Group No. 339, Industry No. 3399, at 181.

      . SIC Code 5093 reads: "Establishments primarily engaged in assembling, breaking up, sorting, and wholesale distribution of scrap and waste materials. This industry includes auto wreckers engaged in dismantling automobiles for scrap.” SIC Manual, Industry Group No. 509, Industry No. 5093, at 301.

      . The Commission argues that its interpretation of the sales tax exemption is entitled to deference because the statute grants it the discretion and authority to define "establishment." See Utah Code Ann. § 59-12-104(15) ("For purposes of this subsection, the commission shall by rule define ‘new or expanding operations’ and ‘establishment.’ "). The Commission contends that because the definition of "manufacturing facility" in the statute “equates ‘manufacturing facility’ and 'establishment' ” the Commission also has an explicit grant of discretion to interpret the meaning of the term "manufacturing facility.”
      The statute does not contain an explicit grant of discretion to the Commission to define manufacturing facility. The statute itself defines manufacturing facility. If the legislature had intended to grant the Commission discretion to define and interpret the term "manufacturing facility,” it would have granted the Commission that discretion explicitly in the statute as it did for the term “establishment” and the phrase "new or expanding operations.” In any event, the Commission’s argument essentially posits that the statute’s use of the term "establishment” in the definition of manufacturing facility implicitly grants the Commission discretion. That, of course, is not an explicit grant of discretion, and we therefore do not grant its interpretation of manufacturing facility deference. See Utah Code Ann. § 59-1-610.

      . Webster’s Third New International Dictionary 1800 (1961) defines "primarily” as "first of all: fundamentally, principally” and “in the first place.”

      . As indicated in the Commission's explanation of its interpretation of the SIC codes in the statute, see supra ¶ 10, the SIC Manual's exposition on the function and use of the standard industrial classification system as a whole in the introductory and explanatory sections of the SIC Manual are consistent with this plain language interpretation of the language of the SIC codes.

      . Even though an analysis of which SIC code best describes an establishment is not legally required by the statutory language, to the extent that the Commission follows the analysis above and determines the activity in which an establishment is "primarily engaged” consistent with the process and product specifications of a particular SIC code, that code can be fairly said to "best” describe the establishment.