author: MANNHEIMER, Judge.

text:
    Johnny L. CLARK, Appellant, v. STATE of Alaska, Appellee.
    No. A-7343.
    Court of Appeals of Alaska.
    Sept. 22, 2000.
    Diane L. Foster, Assistant Public Defender, Kenai, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    Eric A. Johnson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.

      Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   0 P I N I 0 N

MANNHEIMER, Judge.

In this appeal, we are asked to decide whether presumptive sentencing applies to defendants convicted of felony driving while intoxicated. We hold that it does.

Johnny L. Clark drove a motor vehicle while he was intoxicated, a violation of AS 28.35.0830(a). This offense is normally a misdemeanor; but because Clark had two prior convictions for this erime within the preceding five years, his offense was a class C felony under AS 28.35.080(n). Clark pleaded no contest to this charge.

Clark had thirty-one prior eriminal convictions. These convictions included two felonies: third-degree assault and attempted second-degree sexual assault. Based on Clark's two prior felonies, Superior Court Judge Charles K. Cranston ruled that Clark was subject to presumptive sentencing as a third felony offender. Because felony DWI is a class C felony, the judge ruled that Clark faced a 3-year presumptive term.

Judge Cranston found one pertinent aggravating factor under AS 12.55.155(c) ag-gravator (c)(8)-that Clark's criminal history included aggravated or repeated instances of assaultive behavior. (Besides his two assaul-tive felonies, Clark had been convicted of seven misdemeanor assaults over the past twenty years.) Based on this aggravator, Judge Cranston adjusted Clark's presumptive term by adding 6 months to serve and an additional 1% years suspended. That is, Clark was sentenced to 5 years' imprisonment with 1% years suspended (8% years to serve).

In this appeal, Clark contends that presumptive sentencing does not apply to his offense. - He points out that, in AS 28.35.030(n), the legislature has enacted a series of mandatory minimum sentences for felony DWI-minimum sentences that escalate depending on how many times the defendant has been convicted of DWI or breath-test refusal within the preceding ten years. Clark argues that these mandatory minimum sentences are intended to supplant or supersede the "minimum sentences" contained in the presumptive sentencing statutes (specifically, in AS 12.55.125).

Clark's argument is flawed because the presumptive terms listed in AS 12.55.125 are not "minimum sentences". A mandatory minimum sentence represents the legislature's judgement concerning "[the] minimum sentence ... appropriate for [an] offender whose conduct is the least serious contemplated by the definition of the offense". A presumptive term, on the other hand, represents the legislature's judgement as to the appropriate sentence for a typical felony offender (ie, an offender with the specified number of prior felony convictions, and with a typical background) who commits a typical act within the definition of the offense. Thus, the mandatory minimum sentences for felony DWI listed in AS 28.35.030(n) serve a different purpose from the presumptive terms for class C felonies listed in AS 12.55.125(e).

Under AS 12.55.125(e), the sentencing range for class C felonies is normally 0 to 5 years. For defendants with at least one prior felony conviction, the presumptive terms listed in 125(e)(1) and (e)(2) establish the starting point for sentencing within that O- to 5-year range. For instance, because Clark is a third felony offender, his presumptive term of imprisonment was 8 years, but the sentencing judge had the authority to adjust that presumptive term-increasing Clark's sentence up to 5 years or decreasing it down to 0 years-if aggravating and/or mitigating factors were proved. (Even in the absence of aggravating or mitigating factors, Judge Cranston could have referred Clark's case to the statewide three-judge panel under AS 12.55.165.)

The mandatory minimum sentences listed in AS 28.35.030(n) perform another function: they modify the 0- to 5-year sentencing range that would otherwise apply to a class C felony. In other words, even though there is normally no mandatory minimum sentence for class C felonies (even for offenders who have multiple prior felony convictions), the legislature has created special mandatory minimum sentences for this particular class C felony. These minimum sentences hinge, not on the offender's prior felony record, but on the offender's prior record of DWI and breath-test refusal convictions.

The felony version of DWI is relatively new; it was enacted in 1995. Because DWI has traditionally been a misdemeanor, many defendants prosecuted under the felony provision of the statute will be first felony offenders even though they have many prior DWI convictions within the preceding ten years. The minimum sentences listed in the statute guarantee that these first felony offenders will receive the stated amount of jail time.

For example, Clark had four or more prior convictions for DWI and/or breath-test refusal within the ten years preceding his current offense. (To be precise, Clark had five prior convictions.) Because of these prior convictions, Clark was subject to a mandatory minimum sentence of 360 days' imprisonment. This would be true even if Clark had had no prior felony convictions and had not faced a presumptive term.

In this case, Clark had two prior felony convictions, so his presumptive term of imprisonment was 3 years. But the minimum sentence specified in AS 28.35.030(n) still applied. Even if Judge Cranston had found mitigating factors and had wanted to impose no jail time, or even if Judge Cranston had referred Clark's case to the three-judge sentencing panel and the three-judge panel had concluded that Clark deserved little or no jail time, Clark would still have to receive a minimum of 360 days to serve.

For these reasons, we reject Clark's contention that presumptive sentencing does not apply to felony DWI. This offense is governed both by the presumptive sentencing laws and the mandatory minimum sentences established in AS 28.35.080(n). There is only one inconsistency between AS 28.35.080(n) and the usual rules of felony sentencing codified in AS 12.55.125-175: normally, there is no mandatory minimum sentence for class C felonies, but the legislature has created mandatory minimum sentences for felony DWI. Because a more specific sentencing statute such as AS 28.35.030(n)(1) takes precedence over the general sentencing statute, AS 12.55.125(e) , Clark is subject to the mandatory minimum sentence specified in AS 28.35.030(n)(1).

Clark raises two more issues on appeal.

First, Clark contends that Judge Cranston gave inordinate sentencing weight to Clark's history of assaultive crimes (aggravator (c)(8)). Clark's argument is premised on the assertion that Judge Cranston increased Clark's time to serve by 2% years (from 860 days to 3% years) based on this aggravator. But Clark is again relying on the erroneous notion that a mandatory minimum sentence is the same thing as a presumptive term. Clark faced a presumptive term of 3 years to serve. Judge Cranston did not use aggravator (c)(8) to increase Clark's time to serve by 2% years. Rather, the judge relied on this aggravator to increase Clark's time to serve by 6 months.

Clark does not offer any argument why this 6-month increase was clearly mistaken. We have independently reviewed the record, and we conclude that it supports Judge Cranston's decision.

Finally, Clark argues that his sentence (5 years with 1% years suspended) is excessive. But Clark's argument is essentially a reiteration of the contention that his presumed sentence should have been 860 days to serve. This is incorrect. A sentence of 360 days was the absolute minimum that Clark could receive under any circumstance. A sentence of 3 years was what Clark would presumptively have received if Judge Cran-ston had concluded that Clark's offense was a typical felony DWI and that Clark was a typical third felony offender. Judge Cran-ston concluded, however, that Clark was a serious offender whose record of alcohol abuse and violence called for an upward adjustment of the 8-year presumptive term. Having reviewed the record, we conclude that Clark's sentence is not clearly mistaken.

The judgement of the superior court is AFFIRMED.

      . See AS 12.55.125(e)(2).

      . See AS 28.35.030(0)(4).

      . Middleton v. Anchorage, 673 P.2d 283, 284 (Alaska App.1983).

      . See Mullin v. State, 886 P.2d 1323, 1328 (Alaska App.1994). See also Juneby v. State, 641 P.2d 823, 833, 838 (Alaska App.1982), modified and superseded on other grounds, 665 P.2d 30 (Alaska App.1983).

      . See AS 12.55.155(a)(1).

      . See SLA 1995, ch. 80, §§ 3-7.

      . - See AS 28.35.030(n)(1)(C).

      . See In re Hutchinson, 577 P.2d 1074, 1075 (Alaska 1978).

      . See Lepley v. State, 807 P.2d 1095, 1099 n. 1 (Alaska App.1991) (a sentencing judge's decision regarding how much to adjust a presumptive term based on aggravating or mitigating factors is reviewed under the "clearly mistaken" test).

      . See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the MATTER OF the TITLE, BALLOT TITLE AND SUBMISSION CLAUSE, AND - SUMMARY - FOR - 1999-2000 # 246(e), Bennett S. Aisenberg, Petitioner, v. Douglas Campbell and Mark Dorn, Respondents, and William Hobbs, Alan J. Gilbert, and Charles W. Pike, Title Board.
    No. 00SA193.
    Supreme Court of Colorado, En Bane.
    Sept. 11, 2000.

      Susan E. Burch Denver, Colorado Attorney for Petitioner
    Douglas Campbell, Pro Se, Mark Dorn, Pro-Se Arvada, Colorado
    Ken Salazar, Attorney General Barbara McDonnell, Chief Deputy Attorney General Alan J. Gilbert, Solicitor General Maurice G. Knaizer, Deputy Attorney General State Services Section Denver, Colorado Attorneys for Title Board
   PER CURIAM.

In this original proceeding brought pursuant to section 1-40-107(2), 1 C.R.S. (1999), the petitioner, Bennett S. Aisenberg (Aisen-berg), challenges the action of the initiative title setting board (Title Board) in setting the title, ballot title and submission clause, and summary (titles and summary) for Initiative 1999-2000 # 246(e) (Initiative # 246(e)). Ai-senberg contends that (1) Initiative # 246(e) addresses multiple subjects and (2) the titles and summaries are unfair, unclear, inaceu-rate, and misleading.

Initiative # 246(e) would amend provisions of the Colorado Constitution governing judicial discipline. Proponents filed the initiative with the Secretary of State on May 5, 2000. The Title Board held its hearing and set the titles and summary for it on May 17, 2000. On May 26, 2000, the Title Board granted Aisenberg's motion for rehearing in part and denied it in part. Aisenberg filed his petition for review of the Title Board's action with us on June 1, 2000. On July 3, 2000 we announced our decision to affirm the Title Board with opinion to follow.

I.

Initiative # 246(e) proposes to amend article VI, section 28(8) of the Colorado Constitution, addressing the Commission on Judicial Discipline, its composition and method of appointment, and its procedures. - The amendments would reduce the membership of the Commission from ten to seven members. The Governor would appoint, subject to Senate confirmation, all future members of the Commission. No person could serve on the Commission for more than eight years. As to the ten existing members of the Commission, the positions of the next three judge or attorney members whose terms expire would not be filled, thereby accomplishing reduction of the Commission to seven members. Current members who are judges or attorneys would be non-voting members until their terms expire. No future appointee could be an attorney or judicial department employee. At the request of the Commission, the governor would appoint three temporary special masters to hear testimony, take evidence, and report to the Commission in a specific proceeding, at which time their terms would expire unless extended by cause for a date certain by the Commission.

Initiative #246(e) also proposes that all papers, proceedings, testimony, and findings of or before the Commission, the supreme court, and special masters would be public records, available on the internet, summarized by the election official forty-five days prior to the judicial officer's future election, and printed in any ballot information booklet and mailed election notice required by law. In a defamation action, the proceedings, papers, testimony, findings, and any publication or posting of these under the authority of the Commission, the summarizing election official, or the publisher of the ballot information booklet, would be privileged, except as to witnesses and the party filing the complaint with the Commission. In all such suits, the initiative would provide that judicial officers are public figures, and would not be compensated in a defamation action for campaign costs, loss of income from removal or non-retention by the voters, or attorney fees. The plaintiff in a defamation action would compensate the defendant for all actual attorney fees and costs, if the defendant prevailed.

Initiative #246(e) also provides that the General Assembly would enact procedures implementing the judicial discipline process. A preponderance of the evidence standard would be applied to disciplinary actions, but any Commission finding other than a full exoneration would compel a retention vote of the judicial officer on the next yearly state election date that occurs at least ninety days later. The initiative would repeal existing provisions of article VI, section 23(8) that are inconsistent with the proposed amendments.

IL.

We hold that Initiative # 246(e) does not contain multiple subjects and the titles and summary set by the Title Board are not inaccurate, unfair, unclear, or misleading.

A. Single Subject

In a number of previous cases, we held that amending the judicial discipline provisions of the Colorado Constitution is a separate subject from amending the qualifications of judicial officers. See In re Ballot Title 1999-2000 # 33, 975 P.2d 175, 176 (Colo.1999); In re Ballot Title 1999-2000 # 29, 972 P.2d 257, 259 (Colo.1999); In re Ballot Title 1997-1998 # 95, 960 P.2d 1204, 1209 (Colo.1998); In re Ballot Title 1997-1998 # 64, 960 P.2d 1192, 1199 (Colo.1998). We stated that the Commission on Judicial Discipline is an independent constitutional body and "it follows that any alteration of Commission powers, or the composition and manner of selection of Commission membership, does not serve the purpose of altering the qualifications of judicial officers." In re Ballot Title 1997-1998 # 64, 960 P.2d at 1199-1200. We held that provisions proposing to change the "composition, manner of selection, powers and procedures of the Commission further a distinct purpose" and therefore constituted a separate, distinct, and unconnected subject from amending the constitutional provisions relating to the qualifications of judicial officers. Id. at 1200.

Aisenberg argues that the term "judicial discipline" utilized by the proponents is too broad, and the "amalgamation of topics" presents "no apparent singular purpose" that fits the single subject requirement. We determine, to the contrary, that the proposed provisions all relate to the selection, powers, and procedures of the Commission. These provisions implement the single subject of establishing and directing the performance of a commission whose responsibility it is to independently assess and determine the disposition of complaints seeking the discipline of judicial officers.

Our responsibility in single-subject review is to determine whether the subject treated in the body of the proposed initiative is clearly expressed in its titles and whether the initiative unites separate, distinct, and unconnected subjects. See In re Ballot Title 1999-2000 # 25, 974 P.2d 458, 460-61 (Colo.1999). Implementation provisions tied to an initiative's central focus do not violate the single-subject requirement. See In re Ballot Title 1999-2000 # 200A, 992 P.2d 27, 30-31 (Colo.2000).

In the context of judicial officer qualifications, we recently held that a single subject existed in a proposal that addressed the selection, terms of office, and removal of judicial officers, and procedures associated therewith. See In re Ballot Titles # # 245(b), 245(c), 245(d) & 245(e), 1 P.3d 720, 422-28 (Colo.2000); In re Ballot Titles # # 245(f) & 245(g), 1 P.3d 739, 742-48 (Colo.2000).

Parallel provisions relating to the Commission exist here. In addition to the composition of the Commission, its method of selection, and the terms of commissioners, Initiative # 246(e) contains a number of implementing provisions that are connected with the Commission's responsibility for judicial discipline. These include provisions for: (1) making the papers and records of Commission proceedings available to the public; (2) according a privilege to the papers, record, and their publication, for any defamation proceeding ensuing from the disciplinary process, except as to witnesses and the party filing the complaint with the Commission; (8) directing the General Assembly to prescribe procedures governing the Commission's work; (4) enunciating the applicable standard of review for disciplinary action; and (5) other details implementing judicial discipline. All of these provisions are tied to the central focus of judicial discipline, which is a discrete subject that is not overbroad in relation to the initiative's content.

The Title Board did not err in determining that Initiative # 246(e) presents a single subject.

B. Fair, Clear, and Accurate Titles and Summary

Titles must clearly, briefly, and unambiguously state the principle of the provision sought to be added, amended or repealed. See Im re Ballot Title 1999-2000 # 104, 987 P.2d 249, 254 (Colo.1999). Our role does not include rewriting the titles and summary to achieve the best possible statement of the proposed measure's intent. See In re Ballot Title 1999-2000 #265, 3 P.3d 1210, 1213 (Colo.2000). We will not interfere with the Title Board's choice of language for the titles and summary if that language is not clearly misleading, and we resolve all legitimate presumptions in favor of the Title Board's choice. See In re Ballot Title 1999-2000 # # 227 & 228, 3 P.8d 1, 5 (Colo.2000). We will not affirm the setting of titles when a material omission therefrom would mislead the voters or promote voter confusion. See In re Ballot Title 1999-2000 # 258(A), 4 P .3d 1094 at 1100 (Colo. 2000).

Aisenberg contends that "the titles contain careless generalities that mislead potential voters and petition signers as well as having significant omissions, the effect of which is failure to inform voters and petition signers of the true impact of the proposal." In particular, Aisenberg notes: (1) the omission of a statement in the titles that attorneys and judicial department employees, current or former, are prohibited from serving on the Commission; (2) an incomplete de-seription in the titles of the seope of Commission filings and matters required to be publicly available; (8) no mention in the titles of how special masters are appointed and utilized in Commission proceedings; (4) no comparison in the summary between the existing and proposed confidentiality, privilege, and public record provisions; (5) failure to mention in the summary that the privilege for Commission materials and proceedings in ensuing defamation actions does not apply to witnesses, as well as not applying to the complainant in the Commission proceeding; and (6) lack of explanation as to the special master provisions that may leave a false impression that special masters cannot be utilized in Commission proceedings.

While the titles could benefit from a brief identification of the qualifications and appointment process for future commissioner appointments, we do not find that this omission from the titles renders them inaccurate or misleading. The summary contains details in this regard. The remainder of Aisen-berg's comments regarding the titles and summary are either editorial in nature or focus on material for which inclusion, non-inclusion, or phrasing thereof is within the Commission's discretion. The Title Board is not required to present a side-by-side proposal of the existing law and how the proposed initiative would change it. It need not touch on every aspect of a proposal. Instead, its task is to present straightforward, succinet, and nonargumentative titles and summaries.

We do not find the titles or summary to be inaccurate, unfair, unclear, or misleading.

"our

Accordingly, we affirm the action of the Title Board in setting the titles and summary for Initiative # 246(e).

APPENDIX

Proposed Initiative ©1999-2000-# 246(e)"

The title as designated and fixed by the Board is as follows:

AN AMENDMENT TO THE COLORADO CONSTITUTION CONCERNING JUDICIAL DISCIPLINE, AND, IN CONNECTION THEREWITH, CHANGING THE NUMBER, QUALIFICATIONS, AND APPOINTMENT PROCESS FOR MEM-

BERS OF THE COMMISSION ON JUDICIAL DISCIPLINE; PROVIDING THAT, IN THE JUDICIAL DISCIPLINARY PROCESS, ALL FILED PAPERS, PROCEEDINGS, TESTIMONY, AND FINDINGS ARE CONSIDERED PUBLIC RECORDS, OPEN TO THE PUBLIC, AND AVAILABLE ON THE INTERNET; REQUIRING AN ELECTION OFFICIAL TO ACCURATELY SUMMARIZE ALL SUCH PAPERS, PROCEEDINGS, TESTIMONY, AND FINDINGS AND TO PUBLISH SUCH SUMMARY IN VOTER INFORMATION MATERIALS; PROVIDING THAT SUCH PAPERS, PROCEEDINGS, TESTIMONY, AND FINDINGS, AS WELL AS THEIR PUBLICATION UNDER THE AUTHORITY OF THE COMMISSION OR THE ELECTION OFFICIAL OR IN THE BALLOT INFORMATION BOOKLET, ARE PRIVILEGED IN ANY DEFAMATION ACTION EXCEPT AS TO A WITNESS OR THE COMPLAINING PARTY; EXCLUDING CERTAIN ITEMS FROM THE DAMAGES AVAILABLE IN DEFAMATION - ACTIONS; - AUTHORIZING THE GENERAL ASSEMBLY TO ENACT PROCEDURES FOR THE COMMISSION; SPECIFYING THAT PREPONDERANCE OF THE EVIDENCE SHALL BE THE STANDARD OF PROOF FOR DISCIPLINARY ACTIONS; REQUIRING A RETENTION ELECTION IF A JUSTICE OR JUDGE IS NOT FULLY EXONERATED; AND REPEALING CERTAIN PROVISIONS RELATING TO THE COMMISSION.

The ballot title and submission clause as designated and fixed by the Board is as follows:

SHALL THERE BE AN AMENDMENT TO THE COLORADO CONSTITUTION CONCERNING JUDICIAL DISCIPLINE, AND, IN CONNECTION THEREWITH, CHANGING THE NUMBER, QUALIFICATIONS, AND APPOINTMENT PROCESS FOR MEMBERS OF THE COMMISSION ON JUDICIAL DISCIPLINE; PROVIDING THAT, IN THE JUDICIAL DISCIPLINARY PROCESS, ALL FILED PAPERS, PROCEEDINGS, TESTIMONY, AND FINDINGS ARE CONSIDERED

PUBLIC RECORDS, OPEN TO THE PUBLIC, AND AVAILABLE ON THE INTERNET; REQUIRING AN ELECTION OFFICIAL TO ACCURATELY SUMMARIZE ALL SUCH PAPERS, PROCEEDINGS, TESTIMONY, AND FINDINGS AND TO PUBLISH SUCH SUMMARY IN VOTER INFORMATION MATERIALS; PROVIDING THAT SUCH PAPERS, PROCEEDINGS, TESTIMONY, AND FINDINGS, AS WELL AS THEIR PUBLICATION UNDER THE AUTHORITY OF THE COMMISSION OR THE ELECTION OFFICIAL OR IN THE BALLOT INFORMATION BOOKLET, ARE PRIVILEGED IN ANY DEFAMATION ACTION EXCEPT AS TO A WITNESS OR THE COMPLAINING PARTY; EXCLUDING CERTAIN ITEMS FROM THE DAMAGES AVAILABLE IN DEFAMATION ACTIONS; AUTHORIZING THE GENERAL ASSEMBLY TO ENACT PROCEDURES FOR THE COMMISSION; SPECIFYING THAT A PREPONDERANCE OF THE EVIDENCE SHALL BE THE STANDARD OF PROOF FOR DISCIPLINARY ACTIONS; REQUIRING A RETENTION ELECTION IF A JUSTICE OR JUDGE IS NOT FULLY EXONERATED; AND REPEALING CERTAIN PROVISIONS RELATING TO THE COMMISSION?

The summary prepared by the Board is as follows:

This measure amends the Colorado constitution. The measure provides that future members of the commission on judicial discipline are appointed by the governor, but are prohibited from serving until approved by the senate following a hearing with public testimony conducted after at least fourteen-days' notice. It would prohibit anyone from serving on the commission more than eight years. The measure prohibits future members from being or having been attorneys or employees of the judicial department and makes judges and attorneys who are current members of the commission non-voting members.

The measure reduces the number of members of the commission on judicial discipline from ten to seven by providing that the next three positions vacated by judges or attorneys occurring after the adoption of the measure shall not be filled.

The measure establishes that special masters shall be appointed by the governor upon the request of the commission of judicial discipline. It authorizes such special masters to hear testimony and take evidence and report to the commission on judicial discipline. The measure provides that the term of a special master expires when the report is filed unless extended for cause by the commission on judicial discipline. It would prohibit current or past attorneys or eaploy-ees of the judicial department from serving as special masters.

The measure repeals the existing provision that papers filed with and proceedings and testimony before the commission on judicial discipline and special masters are confidential and privileged prior to filing recommendations with the supreme court.

The measure would establish that, whether or not charges are upheld, papers filed with, proceedings and testimony before, and find: ings by the commission, the supreme court, or special masters during a judicial discipline process are public records and open to the public. All such documents, unless the filing was outside of the jurisdiction of the commission on judicial discipline, are to be available on the internet within five days. The measure also requires the appropriate election official to accurately summarize all documents available on the internet prior to every future election involving the judicial official. Such summary is to be published forty-five days prior to the election in any ballot information booklet or mailed election notice.

The measure establishes that filed papers, proceedings, testimony, and findings are privileged in any defamation action, exeept as to a witness or the complaining party. The publication or posting of filed papers, proceedings, testimony, and findings under the authority of the commission on judicial discipline or the election official or in the ballot information booklet are also privileged in any defamation action except as to a witness or the complaining party.

In a defamation action against a complaining party, the measure prohibits recovery of campaign costs, loss 'of income, and attorney fees and would require an unsuccessful plaintiff to pay the defendant's actual attorney fees and costs. The measure would deem Judicial officers to be public figures.

The measure changes the authority for establishing procedures for the commission on judicial discipline from the supreme court to the general assembly, and requires that the standard of proof for any judicial discipline hearing be a preponderance of the evidence. If a justice or judge is not fully exonerated, the measure requires a retention vote for such justice or judge at the next yearly state election held at least ninety days after such a finding.

The measure repeals the authority of the commission to appoint special members and the supreme court to appoint special masters. The measure repeals provisions relating to amendments approved in 1982.

The Department of Local Affairs does not foresee any impact on local, government resulting from the enactment of this measure.

. The Office of State Planning and Budgeting believes that, publishing and mailing ballot information booklets would result in some cost, but that the total annual cost of this requirement cannot be accurately estimated. Additionally, the Office of State Planning and Budgeting believes that requiring retention elections for persons not fully exonerated by the commission on' judicial discipline could require an additional full-time employee for judicial performance commissions at a cost of $50,330 in the first year and $46,480 each year thereafter. _

Hearing May 17, 2000:

Single subjeét approved; staff draft amended; titles and summary set.

Hearing adjourned 8:46 p.m.

Hearing May 26, 2000:

Motion for Rehearing denied with respect to single subject grounds.

Motion for Rehearing granted in part (with respect to changes to titles and submission clause in connection with paragraphs 6 and 7) and denied in part (with respect to all other grounds stated in the motion}.

Hearing adjourned 6:08 p.m.

The Text of Initiative 1999-2000 # 246(e) is as follows:

Be it Enacted by the People of the State of Colorado:

Article VI, section 23(8). Judicial discipline.

Section 1. Section 28(8)(a) is repealed and reenacted to read:

(a) Citizen control of judicial discipline commission. There shall be a seven-member commission on judicial discipline. Each future member shall be appointed by the governor, but shall not take office without senate approval following a hearing with public testimony, held 14 days or more after public notice. No one shall serve more than eight years. Among the 10 existing members, the next three positions vacated by judges or attorneys shall not be filled. Members who are judges or attorneys shall be non-voting members. Three temporary special masters shall be appointed by the governor, only upon the request of the commission, to hear testimony and take evidence in a specific proceeding before the commission and to report thereon to the commission at which time their term shall expire unless extended for cause to a date certain by the commission. No future appointee herein referenced shall be or have been an attorney or judicial department employee. Section 2. Section 23(8)(g) is repealed and reenacted to read: | I

(g) Full public disclo'ﬁure of all judicial discipline proceedings. At all times in and after any judicial disciplinary process, and whether or not any charges are upheld by the commission on judicial discipline or supreme court, all papers filed with, proceedings and testimony before, and findings by the commission, the supreme court, and special masters shall be public records; open to the public; on the internet within five days; and accurately summarized in not more than 500 words per proceeding by the election official 45 days before each of that judicial officer's future elections, and published in any ballot information booklet and mailed election notice required by Article VI or by law. Filings outside the commission's jurisdiction shall be public, but not reported. Proceedings, filed papers, testimony, findings, and publication or posting of the same by personnel acting under authority of the commission, the summarizing election official,

or the publisher of the ballot information booklet shall be privileged in any action for defamation except as to witnesses and the party filing the complaint with the commission. In a defamation action, the plaintiff shall not be compensated for campaign costs, the loss of income from removal or non-retention by voters, or attorney fees. If the plaintiff does not prevail, the defendant shall be compensated by the plaintiff for all actual attorney fees and costs. In all such suits, all judicial officers are public figures. Section 3. - The first two sentences of section 23(8)(h) are repealed and re-enacted to read: (h) The general assembly shall enact all seetion 23(8) procedures. A preponderance of the evidence shall be required for disciplinary action, but any commission finding other than a full exoneration shall compel a retention vote of the judicial officer on the next yearly state election date at least 90 days later.

Section 4. Section 28(8)(J) and the last sentence of section 28(8)(b) are repealed. The third clause of the first sentence of section 23(8)(e) is repealed, and the word "or" shall precede the second clause, which shall delete the semicolon and end with a period. -

      . The text of the proposed initiative as well as the Title Board's titles and summary are appended to this opinion.

      . Our decision would have allowed the proponents to proceed with the steps necessary to qualify this initiative for the November 2000 ballot. Although these steps were not taken, we do not find this case to be moot in light of our order affirming the action of the Title Board with opinion to follow.

      . - Judicial Discipline


author: Chief Justice MULLARKEY

text:
    MESA COUNTY VALLEY SCHOOL DISTRICT NO. 51, Petitioner, v. Rusti KELSEY, Respondent.
    No. 988C825.
    Supreme Court of Colorado, En Bane.
    Sept. 11, 2000.

      Groves & Price, P.C., David A. Price, Grand Junction, Colorado, Attorney for Petitioner.
    Doekhling & Driscoll, P.C., Gary L. Doehl-ing, Jeffrey L. Driscoll, Grand Junction, Colorado, Attorneys for Respondent.
   Chief Justice MULLARKEY

delivered the Opinion of the Court.

Respondent Rusti Kelsey (Kelsey) brought this action against petitioner Mesa County Valley School District No. 51 (the District) to recover damages arising from personal injuries suffered in a "slip and fall" accident that occurred at one of the District's schools. The District moved to dismiss the action for lack of subject-matter jurisdiction, arguing that Kelsey failed to comply with the notice-of-claim provisions of the Colorado Governmental Immunity Act (CGIA), sections 24-10-101 to -120, 7 C.R.S. (1999). The trial court denied the District's motion, and the court of appeals affirmed in an unpublished opinion. See Kelsey v. Mesa County Sch. Dist. No. 51, No. 97CA0976 (Colo.App. Aug. 13, 1998) (not selected for official publication).

We granted certiorari to the court of appeals to review two issues. The first issue is whether the court of appeals erred by ruling that an accident report form, combined with various medical reports and bills received by the District's risk manager, constituted "written notice" of Kelsey's claim under seetion 24-10-109(1) of the CGIA. The second issue is whether the court of appeals erred by ruling that Kelsey filed written notice of her claim with the District's duly appointed governing body, as required by section 24-10-109(8) and this court's precedent.

We hold that the court of appeals erred by concluding that the accident report form, medical reports, and bills received by the District's risk manager constituted written notice of Kelsey's claim. Because our conclusion on this issue disposes of the question whether Kelsey complied with the requirements of section 24-10-109, we do not reach the second issue raised on appeal.

We do, however, address Kelsey's argument that this case should be remanded for further proceedings to determine whether the District is estopped from claiming that the trial court lacks subject-matter jurisdiction over this case under section 24-10-109(1). On this issue, we find that estoppel is not a defense to a claimant's failure to file written notice as required by section 24-10-109(1). Accordingly, we reverse the judgment of the court of appeals and order dismissal of the case for lack of subject-matter jurisdiction.

I.

The relevant facts of this case, as found by the trial court, are as follows.

(On the evening of November 15, 1995, Kelsey attended a function at Columbus Elementary School, one of the schools operated by the District. Kelsey injured herself when she tripped over a concrete splash block located on school grounds.

Kelsey reported the injury to Columbus Elementary's school nurse, who completed a school accident report form based on Kelsey's oral statements. This report included Kelsey's name, address, and telephone number, as well as a concise description of the nature and cause of Kelsey's injury.

On November 16, 1995, the principal at Columbus Elementary reported the accident to the District's risk manager, Thomas Kale-nian (Kalenian). Shortly thereafter, Kaleni-an received a copy of the accident report form.

Kalenian spoke by telephone with Kelsey about the accident. Eventually, Kalenian referred Kelsey to John Leech (Leech), an employee of Crawford & Company, the insurance adjuster for the self-insurance pool to which the District belongs. Leech spoke by telephone with Kelsey on three separate occasions regarding her medical expenses.

On March 29, 1996, Kalenian received copies of Kelsey's medical bills and reports from her health care provider, Rocky Mountain HMO. The bills and reports described Kelsey's injuries, the treatment she received, and the cost of that treatment. The trial court found that Rocky Mountain HMO's purpose in submitting the bills and reports was to protect its own interests-namely, a lien on any judgment or reimbursement for medical expenses that Kelsey might recover from the District.

Neither Kelsey nor any entity acting on Kelsey's behalf filed any written documents asserting a claim 'with the District prior to the expiration of the 180-day period for filing claims mandated by section 24-10-109(1). Eventually, however, 182 days after the date of her injury, Kelsey retained an attorney who promptly submitted a formal written notice of her claim for medical expenses and other damages related to her injury pursuant to section 24-10-1109. When the District denied Kelsey's claim, Kelsey commenced this action.

The District moved to dismiss this case for lack of subject-matter jurisdiction, arguing that Kelsey failed to file a written notice of her claim within the 180-day period prescribed by section 24-10-109(1). During a hearing on the motion to dismiss, however, Kalenian testified that receipt of a formal notice of Kelsey's claim by the District within the 180-day filing period would not have affected the District's investigation, remedial action, fiscal arrangements, or preparation of a defense. The parties stipulated that the District's school board, which is its governing body, ordinarily is not informed when the District receives notice of a claim. Kalenian did not know whether the school board would have been notified if a timely formal notice had been filed in this case, and he testified that the District's attorney generally is not informed of claims unless he is served with a notice or litigation is involved. -

The trial court denied the District's motion to dismiss for lack of subject-matter jurisdiction. It concluded that the accident report form- generated by Columbus Elementary's school nurse, combined with the medical reports and bills submitted by Rocky Mountain HMO, satisfied the notice requirements of section 24-10-109(1). The court of appeals agreed with the trial court's, conclusion, and this appeal followed.

IL

The District argues that section 24-10-109(1) bars Kelsey's claim because she failed to file a written notice of her claim against the District within 180 days of discovering her injury. Kelsey concedes that the written notice requirements of section 24-10-109 apply to her claim against the District and that she failed to file a formal notice of her claim until 182 days after discovering her injury. Nevertheless, Kelsey argues that the accident report form completed by Columbus Elementary's school nurse and the medical reports' and bills submitted by Rocky Mountain HMO, combined, contain all the information required under 24-10-109(2) to be included in a written notice.

The CGIA governs the circumstances under which a person may maintain a tort action against the state, its political subdivisions, and its employees. See Corsentino v. Cordova, 4 P.3d 1082, 1086 (Colo.2000). Seetion 24-10-109(1) of the CGIA establishes a jurisdictional prerequisite to such actions, requiring any person seeking damages from a public entity or employee thereof to provide written notice within 180 days of discovering the injury that is the basis of the claim. See § 24-10-109(1); Jefferson County Health Servs. Ass'n v. Feeney, 974 P.2d 1001, 1002 (Colo.1998); Brock v. Nyland, 955 P.2d 1037, 1040 (Colo.1998).

As we previously have observed, the purposes of the written notice required by section 24-10-109(1), as well as the ninety-day waiting period for commencing litigation under section 24-10-109(6), are to allow a public entity to investigate and remedy dangerous conditions, to settle meritorious claims without incurring the expenses associated with litigation, to make necessary fiscal arrangements to cover potential liability, and to prepare for the defense of claims. See Feeney, 974 P.2d at 1008; Regional Transp. Dist. v. Lopez, 916 P.2d 1187, 1194 (Colo.1996).

It is important to keep in mind that this portion of the CGIA sets forth a prerequisite to filing a law suit, a civil action that lies in tort or could lie in tort, against a governmental entity. In light of this fact and the plain language of section 24-10-109, it is readily apparent that the "written notice" required by section 24-10-109(1) is notice that the claimant in fact is asserting a claim against the public entity or an employee thereof. See § 24-10-109(2)(a) (requiring the written address to include "[the name and address of the claimant") (emphasis added); § 24-10-109(2)(b) (requiring "[a] concise statement of the factual basis of the claim ") (emphasis added); § 24-10-109(2)(e) (requiring "[a] statement of the amount of monetary damages that is being requested ") (emphasis added); § 24-10-109(6) (providing that a plaintiff who has filed the written notice required by section 24-10-109(1) may not commence an action in court until it "has received notice from the public entity that the public entity kas denied the claim or until after ninety days has passed following the filing of the notice of claim required by [section 24-10-1091") (emphasis added).

A claim is the assertion of a legal right, and in the context of a tort action against a public entity for personal injuries, a claim is a demand for payment of monetary damages. See National Cas. Co. v. Great Southwest Fire Ins. Co., 833 P.2d 741, 744-45 (Colo.1992); Harding Glass Co. v. Jones, 640 P.2d 1123, 1126 (Colo.1982); see also Black's Law Dictionary 240 (7th ed.1999) (defining claim as "[the assertion of an existing right; any right to payment or to an equitable remedy" and "[a] demand for money or property to which one asserts a right"). Because we interpret the term "written notice" in section 24-10-109(1) to mean written notice of a claim, we hold that any documents on which a plaintiff relies to satisfy the requirements of section 24-10-109(1) necessarily must assert a claim by including a request or demand that the defendant public entity or employee pay the plaintiff an award of monetary damages. Cf. In re Estate of Ongaro, 998 P.2d 1097, 1100 (Colo.2000) (requiring an estate creditor's written claim against an estate to contain "a request or demand for payment from the estate").

Whether a claimant has satisfied the requirements of section 24-10-109(1) presents a mixed question of law and fact. See Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916, 924-25 (Colo.1993). Unless clearly erroneous, we will defer to the trial court's findings of fact. Swieckowski v. City of Fort Collins, 934 P.2d 1380, 1384 (Colo.1997); Trinity Broad., 848 P.2d at 924-25. When determining whether a plaintiff has complied with the requirements of section 24-10-109(1), the relevant facts include but are not necessarily limited to the persons, dates, and documents associated with the plaintiffs alleged injury and filing of written notice. See § 24-10-109(1).

By contrast, whether one or more documents constitute written notice of 2 claim under section 24-10-109(1) is a question of law subject to de movo review. See Meier v. Denver United States Nat'l Bank, 164 Colo. 25, 29, 431 P.2d 1019, 1021 (1967) (holding that "the construction of a written instrument [is] a question of law"); Gilpin Inv. Co. v. Blake, 712 P.2d 1051, 1053 (Colo.App.1985) ("Where there is a question regarding the interpretation of a deed or written document, the terms thereof raise issues of law, and the trial court's findings are not binding on review."). Looking to the documents as a whole, we must determine whether they objectively request or demand that the recipient of the notice pay the claimant monetary damages.

We find that the documents on which Kelsey relies fail to make an explicit request or demand that the District reimburse Kelsey for her medical expenses or otherwise pay monetary damages for her injury. Although it is not disputed that Kalenian and Leech knew that Kelsey was asserting a claim against the District for her medical expenses, this knowledge followed from Kelsey's oral communications. We will not see-ond-guess the General Assembly's decision to require notice of claims against public entities to be in writing by construing Kelsey's oral statements to constitute any part of the written notice required by section 24-10-109(1). Clearly, the General Assembly rationally could determine that written notice serves interests that are not protected adequately by oral notice or even actual knowledge of a claim. CL Evans v. Board of County Comm'rs, 174 Colo. 97, 105, 482 P.2d 968, 972 (1971) (abolishing the common-law doctrine of sovereign immunity while acknowledging the General Assembly's authority to enact laws restricting actions brought against the state and its subdivisions).

Furthermore, we cannot conclude that Columbus Elementary's accident report form or Rocky Mountain HMO's medical reports and bills implicitly stated a claim by Kelsey against the District. Neither Kelsey nor her agents authored or filed these documents. Thus, it would not be reasonable to infer from these documents any intent by Kelsey to make a claim against the District. The most that objectively can be inferred from the documents is that Kelsey could have made a claim for damages against the District, not that she in fact was making a claim for damages against the District.

Similarly, we disagree with Kelsey's contention that she substantially complied with the notice-of-claim provisions of the CGIA because the documents upon which she relies contain most of the information required by section 24-10-109(2). Although our previous cases have suggested that a claimant need comply only substantially with the requirements of section 24-10-109(2) regarding the factual information contained in the claimant's notice, see Brock, 955 P.2d at 1041; Lopez, 916 P.2d at 1194; Woodsmall v. Regional Transp. Dist., 800 P.2d 63, 69 (Colo.1990), these cases are not determinative here. We view the claimant's request or demand for payment of monetary damages to be the very essence of the written notice required by section 24-10-109(1). In other words, the request for payment of monetary damages is what shows that a document is a notice of a claim under section 24-10-109(1). Accordingly, we must apply the standard of strict compliance required by section 24-10-109(1), see Lopez, 916 P.2d at 1190-91; Hast Lakewood Sanitation Dist. v. District Court, 842 P.2d 233, 236 (Colo.1992), and not the standards of compliance applicable to other subsections of the notice-of-claim statute.

Finally, we cannot accept Kelsey's argument that she should be excused from filing written notice of her claim because Kalenian's accident investigation and oral communications with Kelsey fulfilled the purposes of section 24-10-109(1). We considered and rejected the same argument in Kristensen v. Jones, 195 Colo. 122, 126, 575 P.2d 854, 856 (1978) (summarily affirming the court of appeals' holding on this issue in Jones v. Kristensen, 38 Colo.App. 513, 563 P.2d 959, 961 (1977)). See also Jacob v. City of Colorado Springs, 175 Colo. 102, 106, 485 P.2d 889, 891 (1971).

It is clear from the record that Kelsey never provided the District with a written notice of her claim prior to the expiration of the 180-day filing period. We therefore conclude that Kelsey failed to comply with the requirements of section 24-10-109(1) Given our resolution of this issue, we need not reach whether Kelsey also failed to comply with the requirement of section 24-10-109(8) that she file notice of her claim with the District's governing body or its attorney.

IIL

Under section 24-10-109(1), a claimant's failure to file written notice of her claim within the 180-day filing period creates a jurisdictional bar to the claim. See Feeney, 974 P.2d at 1002. Notwithstanding the jurisdictional nature of section 24-10-109(1), Kelsey urges us to remand the case for further proceedings to determine whether the District is estopped from asserting Kelsey's failure to file timely written notice of her claim. The District, on the other hand, requests that we find as a matter of law that equitable defenses such as estoppel are inapplicable to the notice requirements of section 24-10-1091).

We previously have held that seetion 24-10-109(1) is a non-claim statute and that failure to file a claim within the 180-day filing period creates an absolute bar to the claim. See City of Lafayette v. Barrack, 847 P.2d 186, 138 (Colo.1993). Unlike ordinary statutes of limitations, non-claim statutes are not subject to equitable defenses such as waiver, tolling, or estoppel. See In re Estate of Ongaro, 998 P.2d at 1104; Brock, 955 P.2d at 1045 (Kourlis, J., concurring); see also, eg., Mayfield, TTL P.2d at 182. Likewise, subject-matter jurisdiction cannot be waived or conferred by consent, estoppel, or laches. See Barden v. Blau, 712 P.2d 481, 486 n. 5 (Colo.1986).

Accordingly, we hold that equitable defenses such as estoppel are inapplicable to seetion 24-10-109(1). The District could not by its own conduct excuse Kelsey's failure to comply with the written notice requirements of section 24-10-109(1) and thereby confer upon the trial court subject-matter jurisdiction to hear Kelsey's claim.

A claimant's failure to comply with the requirements of section 24-10-109(1) requires a court to dismiss the action for lack of subject-matter jurisdiction. See East Lakewood Samitation Dist., $42 P.2d at 286. Accordingly, we reverse the judgment of the court of appeals with directions to return the case to the trial court for dismissal.

      . The District asserts that Kalenian asked Kelsey to mail a letter regarding her claim and injuries. This assertion finds support in the record and is not disputed by Kelsey.

      . Section 24-10-109(1) provides:
      Any person claiming to have suffered an injury by a public entity or by an employee thereof while in the course of such employment, whether or not by a willful and wanton act or omission, shall file a written notice as provided in this section within one hundred eighty days after the date of the discovery of the injury, regardless of whether the person then knew all of the elements of a claim or of a cause of action for such injury. Compliance with the provisions of this section shall be a jurisdictional prerequisite to any action brought-under the provisions of this article, and failure of ~ compliance shall forever bar any such action.
      § 24-10-109(1).

      . Section 24-10-109(2) requires the written notice to include the following information:
      (a) The name and address of the claimant and the name and address of his attorney, if any;
      (b) A concise statement of the factual basis of the claim, including the date, time, place, and circumstances of the act, omission, or event complained of; |
      (c) The name and address of any public employee involved, if known;
      (d) A concise statement of the nature and the extent of the injury claimed to have been suffered;
      (e) A statement of the amount of monetary damages that is being requested.
      § 24-10-109(2).

      . We note that we would reach the same result even under a substantial compliance standard. See Brock, 955 P.2d at 1041 (stating that substantial compliance requires that the plaintiff at least intend or make a colorable effort to comply with the statutory requirements of section 24-10-109); cf. In re Estate of Mayfield, 108 NM. 246, 771 P.2d 179 (1989) (holding that unilateral actions by an estate in preparation for defending against a claim or ensuring its timely resolution did not constitute substantial compliance with a statute that required an estate creditor to file a petition for allowance of claim).


author: Justice BENDER Justice HOBBS,

text:
    CITY AND COUNTY OF DENVER, a home rule city and a Colorado municipal corporation; and CHERYL D. COHEN, Manager of Revenue, City and County of Denver, Petitioners/Cross-Respondents, v. UNITED AIR LINES, INC., a Delaware corporation authorized to transact business in the State of Colorado, Respondent/Cross-Petitioner.
    No. 98SC431.
    Supreme Court of Colorado, En Bane.
    Sept. 11, 2000.

      J. Wallace Wortham, City Attorney, City and County of Denver Maria Kayser, Assistant City Attorney Robert F. Strenski, Assistant City Attorney Denver, Colorado Attorneys for Petitioners/Cross-Respondents
    Brownstein Hyatt & Farber, P.C. Hubert A. Farbes, Jr. Lynne M. Hufnagel Denver, Colorado Attorneys for Respondent/Cross-Petitioner
   Justice BENDER

delivered the Opinion of the Court.

I, INTRODUCTION

In this appeal, we address the district court's jurisdiction to hear a taxpayer's challenge to certain use and sales tax assessments levied by Denver's Manager of Revenue. Because we conclude that the district court did not have jurisdiction, we do not reach the other issues raise by the parties.

Petitioners, the City and County of Denver and its Manager of Revenue (collectively, Denver) assessed respondent, United Air Lines, Inc., certain sales and use taxes under the Denver Revised Municipal Code (D.R.M.C. or Code). United brought suit in the district court, City and County of Denver, seeking a refund of the taxes. Denver filed a motion to dismiss, arguing that the district court lacked jurisdiction over the case because United failed to exhaust its administrative remedies. The district court denied Denver's motion and granted United's motion for summary judgment, ruling that there were no genuine issues of fact concerning the amount of the refund Denver owed United.

On appeal, the court of appeals affirmed in part, reasoning that Denver was not entitled to dismissal because United followed the proper review procedures. However, the court of appeals reversed the summary judgment in favor of United, holding that there were material issues of fact regarding United's entitlement to a refund. See United Air Lines, Inc. v. City & County of Denver, 975 P.2d 1139, 1143-44 (Colo.App.1998). Both parties petitioned this court for certiorari.

We hold that when an agency directs a party to follow certain administrative procedures consistent with the agency's governing statutes or ordinances, the party must exhaust those procedures or demonstrate that an exception from the exhaustion requirement excuses their failure to do so before the party may seek judicial review of the agency's decision. Because United failed to pursue the administrative procedures that Denver instructed it to follow which were provided for in the D.R.M.C., United did not exhaust its available administrative remedies. As a result, the district court lacked jurisdiction to hear the case. Thus, we reverse the court of appeals and remand the case to that court for return to the trial court with instructions to grant Denver's motion to dismiss.

II. FACTS AND PROCEEDINGS BELOW

In large part, we rely on the court of appeals' description of the facts of this case. See Umited, 975 P.2d at 1140-41. At, all times relevant to this proceeding, United conducted air carrier operations at Denver's Stapleton International Airport. Based on its operations at the airport, United was subject to sales, use, and occupational privilege taxes under the Denver Code.

In 1995, Denver's Manager of Revenue conducted an audit of United's records for the period January 1, 1991 through June 30, 1994. Although United had filed timely returns during this period, the Manager determined that United failed to pay use taxes on a substantial amount of property that was subject to Denver's use tax. The Manager also discovered relatively minor discrepancies in United's sales and occupational privilege tax returns. '

On December 8, 1995, the Manager mailed United three separate documents, each titled "NOTICE OF FINAL DETERMINATION, ASSESSMENT AND DEMAND FOR PAYMENT" and signed by the Manager ("assessment letters"). The assessment letters addressed United's payments of Denver's use tax, sales tax, and occupational privilege tax, respectively, stating: that United underpaid each of the taxes in question. The letters informed United that the Manager assessed the airline additional taxes based on its underpayments, and the letters stated that United was liable for payment of the assessments, plus penalties and interest. The assessments totaled $3,868,459.64 for all three taxes. The assessment letters stated that the amounts due Were payable twenty days from the date the Manager mailed the letters and that unless United petitioned the Manager for review of the assessments within this twenty-day period, the assessments would become final:

PLEASE TAKE NOTICE: The amounts below are assessed against you. This assessment shall be final and due and payable 20 days from the date of mailing of this notice by certified mail, or if served personally, then 20 days from such service, UNLESS WITHIN SAID 20 DAY PERIOD YOU PETITION the Manager of Revenue for review and modification of the assessment.... Upon your failure to pay such taxes when due, the City and County of Denver will proceed to collect the taxes assessed in accordance with the provisions of Art. [II/III] of Chapter 58 of the Revised Municipal Code.

(Emphasis in original.)

Although the assessment letters cited no specific Code section, their descriptions of administrative protest procedures are identical to seetions 53-49(c) and 53-117(c) of the Code. These sections provide that taxpayers may petition the Manager for review, modification, or cancellation of assessments within twenty days of the mailing of the assessment letters.

United received the assessment letters on December 12, 1995, but took no action within the stated twenty-day period from when the Manager had mailed the letters, which ended December 28. Sometime early the next month, Denver informed United that interest was aceruing on the delinquent taxes and that it would commence collection procedures, including the seizure of United's property. On January 19, 1996, United paid the assessments in full, claiming that it made the payment "under protest."

On February 7, 1996-61 days after Denver mailed the assessment letters and 57 days after United received them-United submitted a "CLAIM FOR REFUND" for $1,084,516.00, slightly less than one-third of the amounts assessed. In an attachment to the claim, United listed a variety of reasons why it claimed portions of the assessed amounts were exempt from tax. The Manager denied the refund request two days later. The Manager explained that the assessments were final because United failed to petition for review of the assessments within the Code's twenty-day deadline, as the assessment letters instructed.

After the Manager denied United's request for a refund, United protested the denial and requested a hearing. The Manager responded that "there is no provision in the Denver Revised Municipal Code to allow for a hearing as requested" because United had not filed its protest in a timely fashion. The Manager denied United's request for a hearing.

United then filed this action in the district court. In two claims under CRCP. 106(a2)(4), United claimed that the Manager abused his discretion by denying United's request for a refund, by denying United a hearing after it protested the Manager's denial of the refund request, and by failing to consider the substantive bases for United's refund claim.

In addition to these claims, United also sought a declaratory judgment, asserting that "[alpplicable Denver Municipal Code ordinances unequivocally entitle United to request and claim a refund for sales or use taxes paid so long as the claim or request is submitted within sixty (60) days of the initial notice or demand for payment of taxes." United asked the court to "[dleclare that United's Protest of Denial of Claim for Refund was timely submitted" and to "[dJeclare that United is entitled to receive a tax refund in the amount of $1,084,516.00." The-airline also asked the court, in the alternative, to order the Manager to conduct a hearing on United's refund claims.

In response to United's claims, Denver filed a motion to dismiss, arguing that the court lacked jurisdiction to hear the case because United failed to exhaust its administrative remedies. Denver contended that United's "claim for refund" occurred after the twenty-day deadline provided in the assessment letters and in sections 58-49 and 53-117. Denver asserted that because United failed to follow the procedures set forth in the assessment letters and in the Code, the district court lacked jurisdiction to hear United's claims:

United argued that because it followed the appropriate procedures at the administrative level, the district court could exercise jurisdiction over its claims. According to United's interpretation of the Code, United could claim a refund of taxes paid in error pursuant to sections 58-45 and 58-118. United argued that because it was seeking a refund under these provisions, it was not bound by the twenty-day deadline established in Denver's assessment letters.

Upon eross-motions for summary judgment by both parties, the district court ruled in favor of United. The district court found that United paid the tax assessment, although "involuntarily." The court determined that after paying the tax assessment; United "complied with the administrative processes prescribed by the Code for refund of use taxes by filing its refund request in a timely manner consistent with the Code's provisions." Thus, United was entitled to a refund of "all taxes wrongfully or illegally paid" to Denver.

Having determined that United followed the proper procedures for requesting a refund of sales and use tax, the court turned to the issue of the amount of the refund to which United was entitled. Because United presented sufficient evidence to support the amount of its refund entitlement, Denver had the burden of establishing facts showing a genuine issue of fact concerning the amount of refund owed. Based on the evidence Denver presented, the court concluded that Denver "failed to demonstrate ... any evidence of material dispute regarding the amount of the refund entitlement." Thus, the court issued summary judgment in United's favor for $1,084,516.00-the full amount of United's refund request-and Denver appealed.

The court of appeals first addressed Denver's argument that the district court lacked jurisdiction because United failed to exhaust its administrative remedies and concluded that the district court properly exercised jurisdiction in this case. See United, 975 P.2d at 1141-43. The court of appeals concluded that because the assessment letters specified that the Manager's demand for additional taxes was based upon the Code's audit provisions, the demand was an "examination" of United's "timely filed return" pursuant to sections 58-45(c) and 58-118(c), not an assessment of additional taxes under sections 53-49 and 58-117. See id. at 1142-48. Because Denver's demand for payment was not an assessment, the court held that the twenty-day protest provisions of sections 58-49 and 58-117 were inapplicable. Instead, the court of appeals held that the sixty-day deadline for requesting a refund governed and concluded that United "effectively complied with the code's refund procedures and exhausted its administrative remedies when doing so." Id. at 1148.) Thus, the court held that the district court properly exercised jurisdiction over the matter.

Although the court of appeals concluded that the district court possessed jurisdiction over United's claims, the court of appeals reversed the district court's summary judgment for United on the amount of the refund owed to the airline. See id. .The court held that "our review of the record indicates the presence of material issues of fact as to the Manager's assessment after audit,, the amount of additional sales and use taxes assessed, United's entitlement to a refund based on exemptions provided for in the code, and the amount of that refund, if any." Id. at 1144. Thus, the court remanded the case to the trial court "with directions to order the Manager to conduct a hearing to determine the merits of United's refund claim." Id.

We granted Denver's petition for writ of certiorari to consider whether the court of appeals erred by holding that the district court had subject-matter jurisdiction to hear United's claims. We also agreed to consider whether the court of appeals applied the proper administrative review procedures under the Denver Code. We granted certiorari on United's cross-petition to determine whether the court of appeals erred in holding that issues of material fact precluded granting United's motion for summary judgment.

III, DISCUSSION

The first question Denver presents for our review requires us to determine whether the district court properly exercised jurisdiction over United's claims even though United failed to follow the procedures set forth in the assessment letters and in the Code. We begin by reviewing the general jurisdictional requirement that a party exhaust available administrative remedies before seeking relief in a district court. We conclude that the district court lacked jurisdiction over United's claims because the airline failed to follow the administrative procedures set forth both in the assessment letters and in the Code without an exception excusing United's failure. Our precedent does not permit United to cireamvent the exhaustion requirement by seeking declaratory judgment without first having followed the required procedures at the administrative level. Thus, we hold that the district court lacked jurisdiction to consider United's claims.

Since the district court lacked jurisdiction over United's claims, we do not reach the central question decided by the court of appeals: which administrative review procedure governed and whether the Code required United to seek review within twenty or sixty days.

A. Exhaustion of Administrative Remedies

We begin by discussing the jurisdictional requirement that a plaintiff exhaust available administrative remedies before bringing suit to challenge administrative action, including sales or use tax assessments. If complete, adequate, and speedy administrative remedies are available, a party must pursue these remedies before filing suit in district court. See State v. Golden's Concrete Co., 962 P.2d 919, 923 (Colo.1998); Horrell v. Department of Admin., 861 P.2d 1194, 1197 (Colo.1993); Hoffman v. Colorado State Bd. of Assessment Appeals, 683 P.2d 783, 785 (Colo.1984). If a party fails to exhaust these remedies, the district court may lack subject-matter jurisdiction over the action. See Golden's, 962 P.2d at 928. The requirement that a complaining party exhaust its administrative remedies is particularly applicable in tax cases. See Hoffman, 683 P.2d at 785. Thus, only taxpayers who have sought timely review of assessments by the Manager may obtain judicial review. See American Drug Store, Inc. v. City & County of Denver, 831 P.2d 465, 469 (Colo.1992).

The exhaustion doctrine promotes several important and related policy interests. The exhaustion requirement allows agencies with expertise in a particular subject matter to develop the necessary factual record upon which the agency and subsequent reviewing courts may base their decisions. See McKart v. United States, 395 U.S. 185, 194, 89 S.Ct. 1657, 23 LEd.2d 194 (1969); Golden's, 962 P.2d at 923. The doctrine promotes efficiency in the administrative context by preventing the interruption and fragmentation of the administrative process. See McKart, 395 U.S. at 194-95, 89 S.Ct. 1657; Horrell, 861 P.2d at 1197. Allowing the agency the opportunity to correct its own errors in the first instance preserves the autonomy of the agency. See McKart, 395 U.S. at 195, 89 S.Ct. 1657; Golden's, 962 P.2d at 928. In addition to promoting the efficiency and integrity of the administrative forum, the requirement of exhaustion conserves judicial resources by insuring that courts intervene only if the administrative process fails to provide adequate remedies. See Horrell, 861 P.2d at 1197.

The exhaustion requirement is subject to limited exceptions. See Golden's, 962 P.2d at 928. Exhaustion is not necessary, for example, when it is "clear beyond a reasonable doubt that further administrative review by the ageney would be futile because the agency will not provide the relief requested." Id. (citation omitted); see also Kuhn v. Department of Revenue, 817 P24 101, 104 (Colo.1991). Exhaustion is also unnecessary, for instance, when the matters in controversy are matters of law that the agency lacks the authority or capacity to determine, such as constitutional issues. See Golden's, 962 P.2d at 923; Horrell, 861 P.2d at 1197-98; Fred Schmid Appliance & Television Co. v. City & County of Denver, 811 P.2d 31, 38 (Colo.1991).

The exceptions to the exhaustion doctrine apply to situations in which the poli-cles underlying the doctrine would not be served by requiring the protesting party to pursue available administrative remedies. A party challenging the constitutionality of an agency's governing statute or ordinance, for example, does not have to exhaust administrative remedies because the agency lacks the necessary expertise to address the constitutionality of statutes and other issues of law that fall squarely in the province of the courts. See Fred Schmid, 811 P.2d at 33; 3 Koch, supra n. 11, § 18.22. If the agency refuses to reconsider its decisions or procedures, or has stated a categorical rule to apply in a group a cases, rendering exhaustion futile, requiring the protesting party to pursue administrative remedies would not further such interests as allowing the agency to correct its own errors and to develop a record for judicial review. See, eg., Kuhn, 817 P.2d at 104. In these and other instances in which an exception applies, courts will exeuse a party's failure to exhaust available administrative remedies because those situations do not implicate the interests underlying the exhaustion requirement. See 3 Koch, supra, § 13.22; Gelpe, supra, at 31.

The requirement that a party exhaust administrative remedies applies with equal force when the party seeks declaratory relief. When the General Assembly adopted the Uniform Declaratory Judgments Law (§§ 13-51-101 to 115, 5 C.R.S. (1999)), it created a new remedy but neither expanded nor contracted the jurisdiction of the courts. See Romer v. Fountain Sanitation Dist., 898 P.2d 37, 40 (Colo.1995). For this reason, jurisdictional requirements such as exhaustion apply to actions for declaratory relief like any other action in a district court. See, e.g., Palmer v. Perkins, 119 Colo. 533, 536-38, 205 P.2d 785, 786-87 (1949).

B. Application

Having discussed the basic principles of the exhaustion doctrine, we turn to the facts in this case and address Denver's assertion that the trial court lacked jurisdiction because United failed to exhaust its administrative remedies. The issue is whether United was required to exhaust the administrative remedies that Denver instructed it to follow despite believing that separate procedures applied to its case. For the reasons we discuss below, we hold that when an agency directs a party to follow certain administrative procedures consistent with the agency's governing statute or ordinance, the party may seek judicial review of the agency's actions only if the party exhausts those procedures or if the party establishes that an exception to the exhaustion requirement excuses its failure to do so.

Like the plaintiffs in Palmer, United received notice of the procedures the Code required for protesting the use and sales taxes that the Manager assessed. Denver's assessment letters expressly informed United that it had twenty days in which to petition the Manager for a review and modification of the assessment. This deadline follows precisely the requirements of 53-49(c) and 538-117(c) of the Code. Thus, United had ample instruction about the procedures for challenging the Manager's assessments. United did not comply with this requirement, just as the plaintiffs in Palmer failed to petition for a review of their assessment within the time specified by the taxing authority. See id. at 537, 205 P.2d at 787. Because United failed to comply with the required administrative procedures set forth in the Code and reiterated in the assessment letters, it failed to exhaust available administrative remedies.

Requiring United to follow the procedures provided for in Denver's assessment letters and in the Code furthers the basic policies that support the exhaustion doctrine. If United had filed a timely petition and had argued to Denver that it should have had sixty days in which to file for a refund, then Denver could have considered the specific facts of United's case, utilized its expertise construing the D.R.M.C., and reconsidered its interpretation of the Code, potentially correcting any errors in its position. Furthermore, if United had filed for a review of the assessments within twenty days, then the Manager would have addressed United's substantive concerns about the amount of the assessments, developing the record for further administrative and judicial review. Additionally, if United had petitioned within twenty days of receiving the assessment letters, then Denver would have reached the merits of United's claims and the controversy might have been settled at the administrative level, preserving the agency's autonomy and conserving judicial resources. Thus, requiring United to comply with the procedures set forth in the assessment letters and in the Code-even though United disputed the applicability of those procedures to its situation-would have furthered the policies that favor the exhaustion doctrine.

In addition to furthering the fundamental principles underlying the exhaustion doctrine, United failed to demonstrate that any exceptions to the doctrine excused its failure to pursue the administrative procedures outlined by Denver and provided for by the Code. For instance, had United challenged the constitutionality of the petition procedures Denver required it to follow, then United would not have been expected to exhaust those procedures. In Fred Schmid, we held that the district court had jurisdiction to determine the constitutionality of certain provisions of the D.R.M.C. even though the plaintiff failed to exhaust available administrative remedies. See 811 P.2d at 33. Because the plaintiff sought review of the constitutionality of the Code and not review of the agency's decision, the party seeking declaratory relief did not have to exhaust available administrative remedies. See id By contrast, United did not pursue any constitutional or purely legal challenges that would have been beyond the seope of the proceedings available at the administrative level. Thus, this exception to the exhaustion doctrine is unavailable to the airline.

Just as United did not challenge the constitutionality of either the Code provisions that Denver expected it to comply with or the constitutionality of the agency's conduct, United did not assert that any other exceptions to the exhaustion requirement exeused its failure to pursue the procedures set forth in the assessment letters and in the Code. United failed to argue, for example, that the procedures available to it could not have provided adequate relief. That is, United's actual interest was convincing the Manager that United should have paid only two million dollars in additional taxes, which United could have argued had it petitioned for review of the assessments within twenty days. Hence, no exceptions excused United's failure to pursue the administrative remedies set forth by the assessment letters and the Code.

Although we will not require a party to exhaust available administrative remedies when the party can establish that an exception to the doctrine excuses its failure to exhaust, we will not recognize a new exception from the exhaustion doctrine when a party challenges the agency's directions to follow certain procedures established by the agency's governing statutes or ordinances. When an agency directs a party to follow certain review procedures consistent with the agency's governing statutes or ordinances, a party may not cireumvent those procedures simply by arguing that a separate set of procedures applies under the relevant statute or code. Were we to allow plaintiffs to avoid administrative procedures in such cireum-stances, especially if we allowed courts to reach the merits of a case based on a purely procedural dispute, we would "produce the very [judicial] interference with the administrative process that the exhaustion doctrine is designed to prevent." Fred Schmid, 811 P.2d at 35 (Quinn, J., dissenting).

A party in a position similar to that of United is not left without recourse if it believes an agency is requiring it to comply with inapplicable procedures. One option available to the party is to comply with the procedures set forth by the agency and attempt to convince the agency that its interpretation is erroneous. Under this scenario, the party may present its procedural arguments to the district court after establishing that it followed administrative remedies as directed by the agency. Additionally, by exhausting the procedures set forth by the agency and its governing statutes or ordinances, the party may still bring substantive challenges to the agency's actions even if the party loses its objection to the agency's procedures. Under the facts of this case, had United complied with Denver's twenty-day deadline and been unable to convince either Denver or the courts that the sixty-day refund provisions applied, United could still have presented its substantive challenges to the assessments for administrative and judicial review.

In addition to the option of complying with the agency's procedures and challenging their applicability through the process of administrative and judicial review, a party may establish that an exception to the exhaustion doctrine excuses its refusal to comply with the procedures established by the agency. For example, the party could challenge the constitutionality of the legislation upon which the agency relied for its actions or challenge the adequacy of the procedures provided by the agency. See, e.g., Horrell, 861 P.2d at 1197 (excusing a party's failure to exhaust because the party was challenging the constitutionality of an agency's governing legislation); City & County of Denver v. Eggert, 647 P.2d 216, 224-25 (Colo.1982) (holding that procedures followed by agency denied plaintiffs due process). Hence, a party who believes that an agency has erroneously directed it to follow inapplicable procedures found in the agency's governing statutes or ordinances has at least two options for seeking administrative and judicial review of the agency's instructions.

We note that United may not circumvent the exhaustion doctrine by seeking declaratory relief. As discussed, the General Assembly did not expand the jurisdiction of the courts when it adopted the Uniform Declaratory Judgments Law. Thus, prerequisites to jurisdiction such as exhaustion apply when a party seeks declaratory relief from agency action. See Paimer. In American Drug Store, we acknowledged that when "a party wishes to challenge the constitutionality of a statute or ordinance that the agency enforces, that party may bring an action for declaratory judgment in district court." 831 P.2d at 469 (emphasis in original). In this case, United did. not seek a declaratory judgment that the Code provisions being enforced by Denver were unconstitutional or that the Manager had otherwise acted unconstitutionally. Instead, United sought declarations that separate procedures applied in its case, and that Denver owed the airline a refund of more than one million dollars, which are both issues that could have been addr essed through approprlate administrative procedures. The fact that United sought declaratory relief does not excuse it from the requirement of exhaustion.

Having held that the district court lacked jurisdiction, we do not reach the remaining questions on certiorari which include whether the court of appeals correctly interpreted the Code by holding that the refund procedure (allowing sixty days to apply for a refund) rather than the assessment procedure (allowing twenty days to petition for review) applied to this case. For the same reason, whether the court of appeals erred in holding that there was a genuine issue of material fact precluding summary judgment is, as United acknowledges, moot.

IV. CONCLUSION

For the reasons stated, we reverse the decision of the court of appeals and remand this case to that court for return to the district court with instructions that the district court dismiss United's claims. -

Justice HOBBS,

specially concurring:

I concur in the opinion and judgment of the court upholding the dismissal of United's claims, but I write separately to explain why I agree with Denver's contention and disagree with United's contention that it exhausted its administrative remedies. Denver contends that D.R.M.C. sections 58-49(c) and 53-117(c) required United to petition for administrative review of its tax assessment within twenty days of service thereof, United contends that the sixty-day provisions of D.RM.C. sections 53-48(b) and 58-111(b) concerning tax refunds applied. If United's contention is correct, it exhausted its administrative remedies. - The District Court agreed with United.

I agree with the majority that failure to exhaust administrative remedies can bar judicial review when the party seeking to set the agency's decision aside has failed "to follow certain review procedures consistent with the agency's governing statutes or ordinances." Maj. op. at 1215. However, I am concerned about the opinion's focus on the Manager of Revenue's notice to United that it had twenty days upon service of the assessment to pay or petition for administrative review. See maj. op. at 1209. If United is correct that the Code allowed it sixty days to invoke administrative review, then the Manager's notice did not correctly reflect the ordinance. -

In the event of an inconsistency between the Code's provisions and the Manager's notice, the Code provisions would control. Courts look to statutes and implementing regulations to determine whether adequate remedies exist; - administrative remedies that are inadequate need not be exhausted. See Coit Indep. Joint Venture v. Federal Sav. & Loan, 489 U.S. 561, 587-88, 109 S.Ct. 1361, 103 LEd.2d 602 (1989). Our agency judicial review cases, including those pertaining to tax assessment appeals, ordinarily set forth the applicable statutory or regulatory provisions that governed the underlying administrative process and resolve conflicting positions of the parties regarding their construction or applicability. Seq, eg., Winslow Constr. Co. v. Denver, 960 P.2d 685, 688-89 (Colo.1998); Gilpin County Bd. of Equalization v. Russell, 941 P201 257, 261-64 (Colo.1997).

At one point, the majority characterizes the exhaustion doctrine as a "jurisdictional requirement." Maj. op. at 1212. While I agree that certain procedural requirements are jurisdictional, such as those which specify the time for filing a judicial review action, see, e.g., Danielson v. Zoning Bd. of Adjustment of the City of Commerce City, 807 P.2d 541, 543 (Colo.1990), the exhaustion requirement is not necessarily jurisdictional in nature. See Cutler v. Hayes, 818 F.2d 879, 890 (D.C.Cir.1987); see also Patel v. Thomas, 793 P.2d 632, 636 (Colo.App.1990). Rather, as the majority discusses, see maj. op. at 1212-1213, it serves a number of purposes and has a number of exceptions. Thus, it should be applied with a view towards those purposes, which include: (1) discouraging the flouting of the administrative process; (2) allowing the agency the first opportunity to apply its expertise, exercise its discretion, and correct its errors; (8) aiding judicial review by promoting the development of facts during the administrative proceeding; and (4) promoting judicial economy by reducing duplication and perhaps obviating judicial involvement. See Cutler, 818 F.2d at 890-91; Colorado v. Golden's Concrete Co., 962 P.2d 919, 923 (Colo.1998).

Accordingly, I1 turn to Denver's and United's competing contentions regarding the Code and the efficacy of the Manager's notice of twenty days for United to petition for administrative review.

United argues that this case should be analyzed under D.R.M.C. sections 538-45 and 53-113, entitled "Examination of returns; refunds, credits and deficiencies." These see-tions provide in relevant part:

As soon as practicable after the return required by this article is filed, the manager shall examine it for correctness. If it then appears that the correct amount of tax to be remitted is greater or less than that shown in the return, the tax shall be recomputed.

D.RM.C. §§ 58-45(a), 58-118(a) If the Manager's audit shows taxpayer payments less than what it determines to be due, subsection (c) then provides that the difference, plus interest, "shall be paid over by the vendor within twenty (20) days after written notice and demand for payment from the manager." D.RM.C. §§ 53-45(c), 53-113(c). The court of appeals held that (1) the Code does not specify that the additional taxes become an assessment; (2) the Code does not specify a procedure for protesting the additional taxes pursuant to D.R.M.C. sections 58-49 and 53-117; and (8) the provisions contained in D.R.M.C. sections 58-45(d) and 58-113(d) apply even though the taxes were paid beyond the twenty day period. The court of appeals concluded that an application for refund can be made in accordance with the procedures found in D.R.M.C. see-tions 58-43 and 58-111. The Code's refund provisions state:

Applications for refund must be made within sixty (60) days after the purchase of the goods or the performance of the services on which the exemption is claimed.

D.RM.C. §§ 53-48(b), 58-111(b). United defends the court of appeals decision, arguing that it exhausted its administrative remedies because it filed a tax return, paid the taxes due, and applied for a refund within sixty days of when it received notice of the alleged deficiency.

I agree with Denver's contention, however, that D.R.M.C. sections 53-49 and 58-117 are applicable to this case, and disagree with the court of appeals holding that the examination of the returns sections, see D.R.M.C. §§ 53-45 and 58-118, and the refund sections, see D.R.M.C. §§ 58-48 and 58-111, are applicable. In construing a legislative action, we must give effect to the words chosen, and we must reconcile seemingly conflicting provisions whenever possible. See Upper Black Squirrel Creek Ground Water Management Dist. v. Goss, 993 P.2d 1177, 1186 (Colo.2000).

D.R.M.C. sections 58-49(a) and 58-117(a) clearly state that when "any retailer neglects or refuses to make a return in payment of the taxes as required by this article, the manager shall make an estimate ... of the amount of the taxes due for the period or periods for which the taxpayer is delinquent." United argues that this provision does not apply to it because it did file a tax return. The plain language of these sections, however, requires United to make a "return in payment of the taxes."

The Manager conducted an investigation of United's records to determine how much tax United owed pursuant to D.R.M.C. sections 53-49 and 58-117. The Manager determined that United had failed to make the required payment. - Thus, in accordance with D.R.M.C. sections 58-49(b) and 58-117(b), the Manager notified United in writing of the assessment and demanded payment of the unpaid taxes, plus penalty and interest. The delinquency notice to United specifically provided a manner to protest the Manager's assessment in accordance with D.R.M.C. see-tions 538-49 and 53-117. United failed to do so.

The policies underlying the exhaustion doctrine should apply to this case because the ordinance provided an administrative remedy to United. United was notified that it must pay the assessment within twenty days or petition for administrative review. United failed to avail itself of this procedure. The subject of taxation as provided by the Code is a home rule matter within the special expertise of the Manager of Revenue. See Winslow, 960 P.2d at 694-95.

Accordingly, no exception to the exhaustion doctrine being applicable in this case, I concur in the opinion and judgment of the court.

      . Code sections 53-48 and 53-116 authorize the Manager to conduct audits of taxpayer records.

      . The sales tax assessment included $41,000.00 in tax, $4,100.00 in penalty, and $17,945.00 in interest for a total of $63,045.00. The use tax assessment included $2,321,206.85 in tax, $235,142.69 in penalty, and $706,412.06 in interest for a total of $3,262,761.60. The occupational privilege tax assessment included $28,819.62 in tax, $2,881.96 in penalty, and $10,951.46 in interest for a total of $42,653.04. United did not contest the occupational privilege tax assessment and that assessment is not at issue in this case.

      . - Sections 53-49(c) and 53-117(c) provide for an "assessment" of delinquent taxes, "due and payable from the taxpayer to the city twenty (20) days" from "the date of the mailing of the notice and demand."

      . Under sections 53-49 and 53-117, a taxpayer who wants to petition for review of a tax assessment has two options. The taxpayer may pay the taxes and petition for review, which tolls the accrual of any interest and penalties during the petition process. See §§ 53-49(d), 53-117(d). Alternatively, the taxpayer may petition for review without paying the assessed taxes, in which case interest continues to accrue. See §§ 53-49(c), 53-117(c). In order to petition an assessment, the taxpayer must notify the Manager that he is petitioning for review of an assessment and provide the Manager "a summary written statement of the facts and reasons for and the amount of the requested changes in the assessment." §§ 53-49, 53-117. If the taxpayer files a petition, the Manager must conduct a hearing and enter a final decision composed of findings and an order. See §§ 53-50, 53-118. The taxpayer may seek review of the final decision in the district court under C.R.C.P. 106(a)(4). See §§ 53-56, 53-124.

      . - Sections 53-45 and 53-113 state that taxpayers may submit claims for refunds of use or sales taxes if, pursuant to the Manager's "examination" of a return, the Manager determines that the taxpayer overpaid its taxes. Claims for refunds under these provisions are governed by procedures in sections 53-43 and 53-111 which provide the refund applications "must be made within sixty (60) days after the purchase of the goods or the performance of the services on which the exemption is claimed."

      . C.R.C.P. 106(a)(4) allows a party to seek relief in a district court "[where any governmental body or officer ... has exceeded its jurisdiction or abused its discretion, based on the evidence in the record before the defendant body or officer." See, eg., City & County of Denver v. Fey Concert Co., 960 P.2d 657, 660 (Colo.1998). When a party brings a C.R.C.P. 106(a)(4) action relief is limited to "a determination of whether the body or officer has exceeded its jurisdiction or abused its discretion." C.R.C.P. 106(a)(4)(D).

      . One of United's claims under CRCP. 106(a)(4) states, "The City and the Manager abused their discretion, and have effectively denied United its right to due process under law...." Although this claim mentioned due process, United never specified the nature of the due process violation alleged (whether procedural, substantive or notice-related) and never raised a due process argument in its briefs or in oral arguments at any stage of this proceeding. Thus, any due process claim is not before this court. In addition, another of United's claims under C.RC.P. 106(a)(4) referenced an alleged violation of the Commerce Clause of the United States Constitution. This claim was never argued and, likewise, is not before this court.

      . Denver presented the following issue: Whether the court of appeals erred by finding that the District Court had jurisdiction over the subject matter when United failed to exhaust its administrative remedies.

      . In this regard, Denver presented the following issues:
      1) whether the court of appeals erred by finding that United was not required to exhaust its administrative remedies within twenty days as provided in §§ 53-49 and 53-117, D.R.M.C., and 2) whether the court of appeals erred by finding that even though United failed to protest the assessment within twenty days, United could file a request for refund under §§ 53-43 and 53-111.

      . The issue presented was: whether the court of appeals erred in finding "the presence of material issues of fact as to ... United's entitlement to a refund based on exemptions provided for in the [Denver Revised Municipal] code, and the amount of that refund, if any," when the only admissible evidence before the trial court was United's evidence supporting entitlement to a refund of $1,084,516.

      . Other recognized exceptions to the exhaustion requirement include: statutory exceptions to exhaustion; instances in which the agency acted outside the scope of its authority; waiver of the exhaustion requirement by the agency; challenges based on bias or prejudgment; inadequate administrative remedies; or instances in which exhaustion would cause a party irreparable injury. See 3 Charles H. Koch, Administrative Law and Practice, § 13.22 (2d ed.1997); Marcia R. Gelpe, Exhaustion of Administrative Remedies: Lessons from Environmental Cases, 53 Geo. Wash. L. Rev. 1, 32 (1984).

      . In Palmer, the State assessed the plaintiffs' use taxes based on their purchase of a business, and the State provided the plaintiffs notice that the assessment would be "final and due and payable [within ten days]" unless the plaintiffs petitioned for review and modification of the assessment. 119 Colo. at 534-35, 205 P.2d at 785-86. The plaintiffs neither paid the tax assessment nor petitioned for review or an extension of time within the ten-day deadline. See id. at 535, 205 P.2d at 786 Several weeks later, the plaintiffs sought a declaratory judgment against the State in the district court. We affirmed the district court's dismissal of the case because the plaintiffs failed to exhaust the administrative remedies of which they were given notice. See id. at 537-38, 205 P.2d at 787.

      . See procedures outlined supra note 4.

      . See also Coit Independence Joint Venture v. Federal Sav. & Loan Corp., 489 U.S. 561, 587, 109 S.Ct. 1361, 103 L.Ed.2d 602 (1989) (holding that where procedures followed by agency placed unreasonable time limits on plaintiffs, plaintiffs could proceed directly to district court without exhausting administrative remedies); Department of Health v. Donahue, 690 P.2d 243, 249 (Colo.1984) (holding that when agency creates procedures for review, due process of law requires the agency to adhere to those procedures even if they exceed what is constitutionally required).