author: Justice BENDER

text:
    In the Matter of the Application for WATER RIGHTS OF DOUBLE RL COMPANY IN the UNCOMPAHGRE RIVER, OURAY COUNTY. Double RL Company, Applicant-Appellant, v. Telluray Ranch Properties, Appellee, and Wayne Schieldt, Division Engineer, Water Division No. 4., Appellee Pursuant to C.A.R. 1(e).
    No. 01SA273.
    Supreme Court of Colorado, En Banc.
    Sept. 23, 2002.

      Johnson Repucci & Berg LLP, Richard A. Johnson, Stephen C. Larson, Boulder, Colorado, Attorneys for Applicant-Appellant.
    No Appearance by or on behalf of Appellee Telluray Ranch Properties.
    No Appearance by or on behalf of Appellee Wayne Schieldt, Division Engineer, Water Division No. 4.
   Justice BENDER

delivered the Opinion of the Court.

I. Introduction

In this case we hold that without first providing notice of the cancellation to the owner of the right as required by section 87-92-305(7), 10 C.R.S. (2002), the water court may not cancel a conditional water right when the holder fails to file a timely application for a finding of reasonable diligence within the time prescribed by statute.

Double RL Ranch, located in Ouray County, held a conditional water right of .083 e.f.s. for domestic use. The water court canceled Double RL's conditional water right after Double RL failed to file an application for a finding of reasonable diligence before the statutory deadline. However, the water court failed to provide notice of the cancellation as required by statute.

Upon reconsideration of the cancellation order by motion of Double RL, the water court affirmed the cancellation and deemed Double RL's right abandoned.

Double RL directly appeals the judgment of the water court. We reverse the judgment of the water court and direct it to reinstate Double RL's conditional water right and permit it to file an application for a finding of reasonable diligence.

II. Facts and Proceedings Below

In 1994, Double RL was granted a decree for a conditional water right to divert water from a seep area located on the Double RL Ranch in Ouray County. The seep is tributary to Dallas Creek and the Uncompahgre River. The conditional right of .088 ef.s. was decreed for domestic purposes with an adjudication date of December 31, 1992 and an appropriation date of February 28, 1992. The water court sent Double RL's attorney and custodian of documents, Richard P. Tis-del, a copy of the conditional decree. Mr. Tisdel passed away between 1994 and 2000.

While reviewing the status of its water rights, Double RL obtained a copy of the 1994 decree from the water court in May 2001. At that time, Double RL learned that its application for a finding of reasonable diligence was over a year past due. In accordance with section 37-92-301(4)(a)(1), 10 C.R.S. (2002), the decree mandated that Double RL file an application for a finding of reasonable diligence by February 2000 to maintain the conditional water right. Because Double RL failed to file the required diligence application by February 2000, in keeping with section 801(4)(a)(I), the water court canceled Double RL's conditional water right on May 29, 2001.

Section 37-92-305(7), 10 C.R.S. (2002) requires that before a conditional water right may be canceled, the water court must provide notice of the pending cancellation to the owner of the right. The water court's cancellation order of May 29 does not address the issue of notice. Double RL contends that it never received notice prior to the cancellation of its conditional water right by the water court.

On June 18, 2001, Double RL moved the water court to vacate the order canceling its water right and to allow Double RL to file a belated application for a finding of reasonable diligence. Subsequently, the water court denied Double RL's motion and deemed the conditional water right abandoned and canceled. The water court's order states that there is no evidence in the court's file that the water court sent notice of cancellation to Double RL or its attorney. Likewise, there is no evidence on file with Mr. Tisdel's law firm that he received notice of cancellation on behalf of Double RL.

Double RL directly appeals the water court's cancellation of its conditional water right to this court.

III, Analysis

A. Interpretation of Sections 37-92-301(4)(a)(I) and 37-92-305(7)

This case presents a question of statutory interpretation. Double RL argues that the water court improperly interpreted see-tions 301(4)(a)(I) and 805(7) when it denied Double RL's motion to vacate the order canceling its conditional water right. It argues that the water court's decision considers only the mandate of section 301(4)(a)(I) and ignores the notice of cancellation provision of section 805(7).

When interpreting a statute, the court must determine and give effect to the legislature's intent. Office of Consumer Couns. v. Pub. Utils. Comm'n, 42 P.3d 23, 27 (Colo.2002). If the plain language of the statute clearly expresses the legislative intent, then the court must give effect to the ordinary meaning of the statutory language. Similarly, the court should avoid interpreting a statute in a way that defeats the obvious intent of the legislature. Id. If the statute is ambiguous, unclear, or subject to alternative constructions, then the court may turn to the legislative history for guidance. § 2-4-208(1)(c), 1 C.R.S. (2002); City of Aurora v. Bd. of County Comm'rs, 919 P.2d 198, 200 (Colo.1996). A statute must be read and considered as a whole. Each part of the statute must be given consistent and harmonious effect. Office of Consumer Couns., 42 P.3d at 27.

Section 301(4)(a)(I) was enacted in 1969 as part of the Water Right Determination and Administration Act. Bar 70 Enters., Inc. v. Highland Ditch Ass'n., 694 P.2d 1253, 1254 (Colo.1985). This section requires that to maintain a conditional water right, the owner of the right must file an application for a finding of reasonable diligence every six years from the date the conditional water right is decreed. If the owner fails to file the application, then the conditional water right "shall be considered abandoned" and will be canceled by the court. § 87-92-801(d)(a)(I) (emphasis added).

We have treated the deadline for filing an application for a finding of reasonable dili-genee as a statute of limitations. Broyles v. Fort Lyon Canal Co., 695 P.2d 1136, 1142 (Colo.1985). Our decisions have strictly construed the language in section 801(4)(a){(I) to mean that if the deadline is missed, then the conditional right is automatically canceled. Id. In Town of De Beque v. Enewold, 199 Colo. 110, 116, 606 P.2d 48, 52 (1980), this court quoted and upheld a trial court ruling that stated, " Tthe language of ... [section 37-92-301(4)] with respect to the effect of failure to file an application for a finding of reasonable diligence within the prescribed time is clear and unequivocal: ... said conditional water right shall be considered abandoned." In Bar 70 Enterprises, 694 P.2d at 1256, this court held that when an owner files an application for a finding of reasonable diligence four days after the deadline, the "conditional water right is considered abandoned, and therefore terminated." See also In re Simineo v. Kelling, 199 Colo. 225, 228, 607 P.2d 1289, 1291 (1980).

In 1975, six years after the enactment of section 801(4)(a)(D), the General Assembly enacted section 805(7). This section mandates that before cancellation or expiration of a conditional water right, the water court "shall give notice ... by certified or registered mail to all persons to whom the conditional water right was granted, at the last-known address appearing on the records of such court." $ 37-92-05(7) (emphasis added). Section 305(7) does not mention section 301(4)(a)(T) and is silent regarding what should happen if the conditional water rights owner does not file an application for a finding of reasonable diligence during the statutory period and the water court has not given notice of cancellation or expiration of the conditional water right.

B. Legislative History of Section 37-92-305(7)

No Colorado court has considered the impact of section 805(7) on the six-year deadline contained in section 301(4)(a)(I). In each of the cases cited above in which this court has strictly construed the deadline of section 301(4)(a)(I), the owner of the conditional right had either received notice or the right was canceled before section 805(T) became effective.

The plain language of the later-enacted notice statute, section 305(7), does not indicate what consequences the legislature intended if the water court does not provide notice and the holder of the right does not file an application for a finding of reasonable diligence in a timely manner. When read together, these statutes create a logical disconnect when the owner allows the six year filing deadline to pass and the water court has not given notice of cancellation. One statute requires the water court to terminate the conditional right, while the other prohibits cancellation or expiration of the right without prior notice. Because the intent of the legislature is unclear in this setting from the words of section 305(7), we look to the legislative history of the statute.

Although the legislative history is scant, it reveals that the legislature intended, without exception, that the person awarded the conditional water right decree will receive notice at his or her last known address appearing on the court's records before the water court cancels the right or it expires. Senator Dan Noble, supporter of the bill that was later enacted as section 37-92-305(7), stated that because water is such an important resource, the owner of the conditional right should not lose this right before notice of cancellation or expiration is sent by registered mail.

[Plrobably one of the most important resources in our state is water, and to have someone lose their water rights just by the fact that they hadn't been notified is a pretty tragic thing, and so all this is doing is to set up, before cancellation or expiration of a conditional water right is made, is that there will be a notice by registered mail.

An Act Concerning Water Rights, and Providing for a Notice of Expiration to Conditional Water Rights Holders: Hearing on S.B. 285 Before the House Agriculture Committee, 1975 Leg., 50th Sess. (Colo.1975) (statement of Sen. Dan D. Noble).

Applying the principle that we must consider the statute as a whole and give weight to each part, we must consider section 301(4)(a)(I), which mandates that the holder of the conditional water right file an application for a finding of reasonable diligence within six years in conjunction with section 305(7), the notice statute. Both sections 301(4)(a)(I) and 305(7) use the word "shall" and are therefore mandatory. If section 301(4)(a)(I) is applied, as it was in this case, without the required notice of section 805(7), such an application would render the notice provision of section 305(7) inoperative to accomplish the legislative intent of preventing loss of a conditional water right. The only interpretation that provides harmonious ef-feet to the language and legislative intent of both section 301(4)(a)(I) and section 305(7) is to require that the water court provide notice to an owner of a conditional water right before the right expires or is canceled-even when the holder of the right fails to file within the statutory time period an application for a finding of reasonable diligence. The water court's failure to give notice only extends the time period in which the dili-genee application may be filed. It does not relieve the applicant of its burden to prove that reasonable diligence occurred during the six year diligence period. See also Dallas Creek Water Co. v. Huey, 933 P.2d 27, 36-37 (Colo.1997).

Therefore, we hold that the water court may not cancel a conditional water right and the conditional water right does not expire without first providing notice of cancellation or expiration under section 805(7).

C. The Water Court Failed to Provide Double RL with Statutory Notice of Cancellation and Therefore Improperly Canceled Double RL's Conditional Water Right

In the present case Double RL contends, and the water court does not contest, that the water court failed to provide Double RL with the required statutory notice that Double RL's conditional water right would expire or be canceled. Although Double RL failed to file its application for a finding of reasonable diligence within the statutory period, the legislative intent of section 805(7) convinces us that the water court improperly canceled Double RL's water right.

We note that the fact that Double RL received notice in the initial decree that it had until February 2000 to file its application for a finding of reasonable diligence does not lead us to reach a different result. Notice contained in the original decree, that the diligence application is due by a certain date, differs from the statutory notice of cancellation or expiration mandated by section 305(7).

IV. Conclusion

For the reasons discussed, we reverse the judgment of the water court canceling Double RL's conditional water right and direct the water court to allow it to file an application for a finding of reasonable diligence.

      . Section 37-92-301(4)(a)(I) provides:
      In every sixth calendar year after the calendar year in which a water right is conditionally decreed, or in which a finding of reasonable diligence has been decreed, the owner or user thereof, if such owner or user desires to maintain the same, shall file an application for a finding of reasonable diligence, or said conditional water right shall be considered abandoned.

      . Section 37-92-305(7) provides:
      Prior to the cancellation or expiration of a conditional water right granted pursuant to a conditional decree, the court wherein such decree was granted shall give notice, within not less than sixty days nor more than ninety days, by certified or registered mail to all persons to whom such conditional right was granted, at the last-known address appearing on the records of such court.

      . In 1969, the time limit was two years. It was later amended to four years and now stands at six years. Town of De Beque v. Enewold, 199 Colo. 110, 116, 606 P.2d 48, 51 (1980).

      . It is important to note that the notice required by section 305(7) is notice that the water court intends to cancel the conditional water right. The statute does not require that the water court notify the owner of the conditional right that its " application for a finding of reasonable diligence is due.


source: Caselaw Access Project

author: Judge ROTHENBERG.

license: Public Domain

text:
    ROCKY MOUNTAIN HEALTH MAINTENANCE ORGANIZATION, INC., a Colorado nonprofit corporation, Plaintiff-Appellee, v. COLORADO DEPARTMENT OF HEALTH CARE POLICY AND FINANCING, by and through its Executive Director, James RIZZUTO, Defendant, Appellant.
    No. 00CA1517.
    Colorado Court of Appeals, Div. IV.
    Sept. 13, 2001.
    Rehearing Denied Dec. 6, 2001.
    Certiorari Denied Aug. 26, 2002.

      Hale, Hackstaff, Tymkovich & Erken-brack, Stephen K. Erkenbrack, Timothy M. Tymkovich, Denver, CO; Hoskin, Farina, Aldrich & Kampf, P.C., David M. Scanga, Matthew G. Weber, Laurie A. Cahill, Grand Junction, CO, for Plaintiff-Appellee.
    Ken Salazar, Attorney General, Barbara A. McDonnell, Assistant Attorney General, Richard L. Webb, Assistant Attorney General, Denver, CO, for Defendant-Appellant.

       Justice KOULIS would grant as to the following issues:
      Whether the lower court erred by reexamining the calculations made by the Colorado Department of Health Care Policy and Financing (the "Department"), and using that reexamination to find Colorado in breach of those contracts.
      Whether the lower court erred when it relied on parole evidence, in the form of opinion testimony and evidence of course of dealing, to vary the terms of the contract payment rates, thereby substantially increasing the State's financial liability. i

       Sitting by assignment of the Chief Justice under the provisions of the Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2001.

   Opinion by

Judge ROTHENBERG.

In this dispute concerning the calculation of Medicaid capitation rates, defendant, Colorado Department of Health Care Policy and Financing, appeals the trial court's judgment following a bench trial finding it liable to plaintiff, Rocky Mountain Health Mainte-nanee Organization, Inc. (RMHMO). We affirm.

I. Background

The department is the state agency responsible for administering the State of Colorado's Medicaid program, a cooperative federal and state program that provides medical services to individuals otherwise unable to meet the costs of such services. The department contracts with private parties to provide the medical services to its Medicaid recipients.

RMHMO is a nonprofit managed care corporation that entered into three contracts with the department to provide medical services to certain Medicaid recipients for the fiscal years 1997-1999. Those three contracts are the subject of this dispute.

A. Statutes and Regulations

Federal law requires those that choose to participate in the Medicaid program, such as the department, to set rates on an actuarially sound basis. See § 42 U.S.C. 1396b(m) (2000).

Certain state regulations also restrict rate settings. Under $ 8.211.08, 10 Code Colo. Regs. 2505-10 (1997), capitation rates, the premiums per recipient, must be established in accordance with actuarial principles after considering the medical and administrative costs of covered services. Colorado has also established restrictions governing the upper and lower limits for health maintenance organization's capitation rates. See § 26-4-119(1)(a), (b), C.R.S8.2000.

B. Contracts

The parties used one basic form for the three contracts in issue here. The effective date of each contract was July 1 of the relevant fiscal year. The contracts require that the department pay a capitation rate that is a fixed monthly payment.

Exhibit B of each contract provides the rates. The contracts state that the rates set forth in Exhibit B are calculated based on a seven-step process which provides for:

(1) calculating fee-for-service expenditures under a prior fiscal year;
(2) adjusting for inflation by applying a trend to project rates to the rating period; (3) adjusting for any significant prospective financial events;
(4) counting the number of fee-for-service eligibles and adjusting them for projected case mix;
(5) dividing projected costs by projected eligibles;
(6) multiplying the result by 95 percent; and
(7) possibly adding administrative costs.

In addition, the contracts expressly incorporate applicable federal and state laws and provide that:

[this contract shall be governed and construed in accordance with the laws established in Article 16, Title 10, Colorado Revised Statutes, as amended, hereinafter referred to as the Colorado Health Coverage Act, and as defined in 42 United States Code 8006, hereinafter referred to as the Health Maintenance Organization Act of 1978, as amended, Article 4, Title 26, Colorado Revised Statutes, Title XIX of the Social Security Act, and all pertinent Department regulations of the Colorado Department of Health Care Policy and Financing Staff Manual Volume VIII, as amended. The laws of the United States of America shall be governing in the event of a conflict or any inconsistency with the laws of the State of Colorado.

C. Current Litigation

At the bench trial, RMHMO asserted that the department had miscalculated the capitation rates for each year of the contracts and that these miscaleulations had resulted in a breach of contract, causing damages to RMHMO.

The facts were largely undisputed and the department presented little evidence at trial. It was undisputed that: (1) the department had a duty to calculate annually the specific dollar amounts of the capitation rates based on data from previous fiscal years; (2) these calculations involved the analysis of massive amounts of data and took months to complete; (8) as a result, the capitation rates were not finalized by the July 1 effective date of the contracts; (4) these parties had contracted with each other since the 1970s; and (5) they had an understanding that the department would voluntarily correct any rate errors that were later discovered.

The testimony also showed that the parties had customarily and routinely corrected rate errors prior to 1996. However, in 1996, the department hired a new director, and at his directive, it had ended the practice of correcting any rate errors discovered later by RMHMO. ‘

The department asserted some defenses to RMHMO's action, but its primary contention at trial and on appeal is that, even assuming the department miscalculated the capitation rates, RMHMO lacks a remedy at law. According to the department, there were extensive negotiations between RMHMO and the department as part of the ratesetting process; the department could have cancelled the contract if it was not satisfied by the rates; and the seven-step process was not intended as an exact calculation.

However, a department employee testified at trial that the department unilaterally had set the rates, and an RMHMO representative also testified that RMHMO lacked any meaningful input into the rate-setting process. The director, who testified as the department's representative, conceded that state and federal laws and the seven-step process apply to the department when it sets rates under the contracts.

The department had hired an actuarial firm to conduct a review of the department's rates, and one actuary testified that he had discovered at least fifteen errors in the department's rate calculations, RMHMO presented other actuarial reports and evidence that the Colorado General Assembly had ordered an audit of the department's rate calculations.

The evidence also included an e-mail from a department employee to his co-workers admitting that he had miscaleulated a portion of the rates. The same employee testified that he was certain the department had both underpaid and overpaid the rates in the past.

As to damages, RMHMO presented evidence from an actuarial firm that had reconstructed and analyzed the rates for the three years at issue. The firm reported that RMHMO had suffered $21,820,841 in damages from the miscaleulations.

D. Trial Court's Findings and Conclusions

After hearing the evidence, the trial court made oral findings of facts and conclusions of law from the bench and directed RMHMO's counsel to submit a written order and judgment, which the court later executed.

The court found that the contracts required the department to follow the seven-step process and the applicable state and federal laws in setting the capitation rates; the parties had signed the contracts with the understanding that Exhibit B would be changed to reflect the proper rates conforming to the seven-step process if the rates were later found to have been miscalculated; and before the disputed period, the department had corrected the rates when errors were discovered in its calculations. The trial court further found that:

[Als a factual matter, ... the parties never treated the contracts as fully integrated. Second, the sevenstep formula for calculating the rates is an express term of the contract, and the department's breach can be, and has been, determined by reference to the formula contained within the four corners of the contract. Third, to the extent that the various versions of the rates calculated by the department conflicted with those derived from the correct application of the formula, the contracts were ambiguous, and the parties' course of conduct showed that if changes needed to be made to make Exhibit B accurate, those changes would be made in accordance with the parties' true agreement that the department set the rates based on the correct application of the formula.
I [also] find that the monthly payments to RMHMO during the years in dispute were based on improperly computed rates.

The trial court thus concluded the department had breached the contracts and had violated applicable state and federal law, and it awarded RMHMO damages in the amount of $15,000,000, plus interest and costs.

II. Governmental Immunity

Initially, we reject the department's contention that the trial court exceeded its jurisdiction because RMHMO's claim was, in fact, a tort claim and was barred by the Colorado Governmental Immunity Act (CGIA). '

The applicability of sovereign immunity is a question of law that can be raised at any stage of the proceeding. Jordan v. City of Aurora, 876 P.2d 38 (Colo.App.1993).

Under the CGIA, § 24-10-101, et seq., C.R.S.2000, a party may not initiate an action against a public entity for an injury that lies in tort or could lie in tort, regardless of whether a tort claim is asserted. See City & County of Denver v. Desert Truck Sales, Inc., 837 P.2d 759 (Colo.1992).

In determining whether a claim is barred under the CGIA, the dispositive question is not how the claim is characterized, but whether itis or could be a tort claim. City & County of Denver v. Desert Truck Sales, Inc., supra.

The CGIA does not apply to actions grounded in contract. Berg v. State Board of Agriculture, 919 P.2d 254 (Colo.1996); Grimm Construction Co. v. Denver Board of Water Commissioners 835 P.2d 599 (Colo.App.1992)(summary judgment in error because public entity not immune from contract claims). Thus, if the claims are for breach of obligations arising from the terms of a contract, the public entity is not immune. See Elliott v. Colorado Department of Corrections, 865 P.2d 859 (Colo.App.1993).

Here, the parties agree they are bound by the three contracts, and RMHMO provided overwhelming evidence at trial that the department had breached the contracts by failing to calculate the rates in accordance with the language of the contracts and governing Medicaid payment rates.

In addition, the trial court expressly found that liability arose from the contracts executed between the department and RMHMO, and while there was evidence at trial showing several department employees had misled RMHMO, that was not the basis of RMHMO's lawsuit.

Accordingly, we conclude RMHMO's action against the department was grounded in contract law and therefore is not barred by sovereign immunity.

III, Adequacy of Court's Findings

We also reject the department's contention that the trial court failed to make adequate findings of fact and conclusions of law in its oral remarks after trial and in its later written judgment.

Under C.R.C.P. 52(a), the trial court's judgment must contain findings of fact and conclusions of law sufficiently explicit to give an appellate court a clear understanding of the basis of its order. In re Marriage of Van Inwegen, 757 P.2d 1118 (Colo.App.1988).

However, there is sufficient compliance with the rule "if the ultimate facts have been determined and conclusions of law are entered thereon." Manor Vail Condominium Ass'n v. Town of Vail, 199 Colo. 62, 68, 604 P.2d 1168, 1172 (1980).

Despite a trial court's characterization of its oral remarks at the end of a trial as "findings and conclusions,"

the court has the authority to supplement and modify the opinions it expressed in its oral remarks until the date judgment formally enters. Consequently, an order or judgment must be reduced to writing and dated and signed before it is a final, ap-pealable order.

People in Interest of O.J.S., 844 P.2d 1230, 1233 (Colo.App.1992) (citations omitted), aff'd sub nom. D.A.S. v. People, 863 P.2d 291 (Colo.1993).

Although appellate courts may scrutinize a trial court's findings when they have been adopted from those proposed by a litigant, the trial court's use of such findings is not erroneous if supported by competent evidence in the record. Municipal Subdistrict v. OXY USA, Inc., 990 P.2d 701 (Colo.1999).

On appeal, the court will assume that the trial judge examined the proposed findings and agreed that they correctly stated the facts as he himself found them to be; otherwise, he would not have adopted them as his own. It is only when the findings themselves are inadequate and do not indicate the basis for the trial court's decision that the judgment will be reversed.

Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 93, 420 P.2d 232, 235 (1966) (citation omitted).

Here, the trial court acted well within its authority in executing written findings, conclusions of law, and entry of judgment after its oral statements. See People in Interest of O.J.S., supra. We also observe that the written judgment closely follows the trial court's oral statements.

Because the trial court's findings indicate the basis for its decision, see Municipal Subdistrict v. OXY USA, Inc., supra; Uptime Corp. v. Colorado Research Corp., supra, we reject the department's contention that the court failed to provide adequate findings of fact and conclusions of law.

IV. Breach of Contract

The department next contends that it satisfied its contractual obligation to make monthly payments and that the trial court thus erred in finding that it breached the contracts with RMHMO. In a related contention, the department also contends the court erred in admitting parol evidence. We reject both contentions.

Interpretation of the language of a contract and determination whether a contract is ambiguous are questions of law that we review de novo. Branscum v. American Community Mutual Insurance Co., 984 P.2d 675 (Colo.App.1999); Batterman v. Wells Fargo Ag Credit Corp., 802 P.2d 1112 (Colo.App.1990).

A contract term is ambiguous if it is reasonably susceptible to more than one meaning, but the potential for more than one interpretation does not, in itself, create ambiguity. Allstate Insurance Co. v. Juniel, 931 P.2d 511 (Colo.App.1996). To ascertain whether an agreement is ambiguous, the agreement's language should be construed in accordance with the plain and generally accepted meaning of the words employed. USI Properties East, Inc. v. Simpson, 938 P.2d 168 (Colo.1997).

In determining whether a contract is ambiguous, a court may consider extrinsic evidence bearing upon the meaning of the written terms, such as evidence of local usage and of the circumstances surrounding the making of the contract. But, the court may not consider the parties' own extrinsic expressions of intent. Cheyenne Mountain School District # 12 v. Thompson, 861 P.2d 711 (Colo.1993).

Written contracts that are complete and free from ambiguity will be found to express the intention of the parties and will be enforced according to the plain language. USI Properties East, Inc. v. Simpson, swpra. In order to effectuate the parties' intent, a contract must be construed as a whole, and effect must be given to every provision if possible. Truck Insurance Exchange v. Eagle River Water & Sanitation District, 17 P.3d 844 (Colo.App.2000).

Although the intent of the parties should be determined from the language of the contract itself, see Humphrey v. O'Connor, 940 P.2d 1015 (Colo.App.1996), where contract terms are vague or ambiguous, parol evidence may be admissible for the purpose of interpreting, explaining, or applying such terms. Tripp v. Cotter Corp., 701 P.2d 124 (Colo.App.1985).

Onee a contract is determined to be ambiguous, its interpretation becomes an issue of fact for the trial court to decide in the same manner as other disputed factual issues, Pepcol Manufacturing Co. v. Denver Union Corp., 687 P.2d 1310 (Colo.1984), and the trial court's findings of fact may only be disturbed when they are so clearly erroncous as to find no support in the record. See FDIC v. Bowen, 865 P.2d 868 (Colo.App.1993).

In this case, the plain language of the contracts required that the department follow the seven-step process and relevant state and federal laws, and as outlined above, the relevant statutes mandate that the department set its rates on an actuarially sound basis. Nevertheless, while the trial court found that most of the language of the contracts was clear, it concluded the contracts were ambiguous "to the extent that the various versions of the rates calculated by the department conflicted with those derived from the correct application of the formula."

To resolve that ambiguity, the court examined the parties' course of conduct, which according to the trial court,

showed that if changes needed to be made to make Exhibit B accurate, those changes would be made in accordance with the parties' true agreement that the department set the rates based on the correct application of the formula.

The department maintains that the trial court should have disallowed the testimony of RMHMO's actuarial experts about the parties' intent and should not have relied on such extrinsic evidence in reaching its result. We disagree and conclude that, under these cireumstances, testimony concerning the parties' past practice of correcting rate mistakes was proper. See Cheyenne Mountain School District # 12 v. Thompson, supra.

The actuarial testimony showed that the department miscalculated the rates under the applicable seven-step process and state and federal law, and that during the fiscal years in issue, the department admittedly had deviated from the parties' past practice of correcting rate mistakes.

In sum, we conclude the trial court did not err in determining that the department breached the plain language of the contracts that required it to follow the seven-step process and relevant state and federal laws. Nor did it err in allowing the parties to present testimony of actuarial experts to show whether the department had miscaleu-lated such rates under the applicable process and law, and also allowing testimony concerning the parties' past practice of correcting rate mistakes.

Because the court made factual findings supporting the determination that the department breached its contractual duties and there is record support for these findings, we may not disturb them on appeal. See FDIC v. Bowen, supra.

We also reject the department's assertion that there was an insufficient factual basis for awarding damages. As noted earlier, the trial court found that RMHMO had suffered damages in the amount of $15,000,000, which was considerably less than the amount sought by RMHMO. Because there is record support for that finding, we may not disturb it on appeal. See FDIC v. Bowen, supra.

Given our conclusion, we do not address the alternative theories relied upon by the trial court in support of the judgment. We have also considered and rejected the department's remaining contentions.

Judgment affirmed.

Judge RULAND and Judge STERNBERG, concur.


author: HODGES, J. OPALA, J.,

text:
    2002 OK 42
    UNITED STATES FIDELITY & GUARANTY CO., Surety/Appellants, and Sun River Development, Inc., Taxpayer, v. STATE of Oklahoma, ex rel. OKLAHOMA TAX COMMISSION, Appellee.
    No. 93,488.
    Supreme Court of Oklahoma.
    May 21, 2002.

      Evan B. Gatewood, Hayes & Magrini, Oklahoma City, Oklahoma, for appellant.
    Thomas E. Kemp, General Counsel, Sean R. McFarland, Assistant General Counsel, Oklahoma Tax Commission, Oklahoma City, Oklahoma, for appellee.
   HODGES, J.

I. Issue

1 The issue before this Court is whether the order forfeiting a surety bond issued on behalf of the Oklahoma Tax Commission (Tax Commission) is directly appealable to this Court. We answer in the negative and dismiss the appeal.

II, FACTS

1 2 Upon obtaining a sales tax permit, Sun River Development, Inc. (Sun River) obtained an $18,000 surety bond from United States Fidelity & Guaranty Co. (USF & ®. The bond was executed on August 28, 1986, and was in effect at the time this dispute arose.

13 On August 11, 1988, the Tax Commission sent Sun River two notifications of proposed assessments for $10,300.60 for additional taxes, interest, and penalties. There is nothing in the record showing that Sun River responded to the proposed assessments, see Okla.Stat. tit. 68, § 221(C), (E) (1991), or that USF & G was notified of the proposed assessments. See id. at § 213.

T4 Over ten years later on May 25, 1999, the Tax Commission sent Sun River and USF & G letters notifying them that if the taxes, interest, and penalties of $20,267.60 were not paid within thirty days that the bond would be forfeited. The letter to Sun River was returned as undeliverable. USF & G responded that they viewed the notice as informational only and asked the Tax Commission to contact them if it intended to pursue the matter. The Tax Commission did not respond to this request.

T5 On July 12, 1999, the Tax Commission ordered the surety bond forfeited. Notice was sent to USF & G on July 22, 1999. USF & G requested that the Tax Commission vacate the order and schedule a hearing. At the same time, USF & G filed an appeal "to protect [its] appeal rights".

T6 The Tax Commission filed a motion to dismiss. In response, USF & G filed a dismissal of the appeal. Upon the initial review of the motion to dismiss, this Court denied the motion and, in the same order, denied USF & (Gs "conditional dismissal". The matter was assigned to the Court of Civil Appeals for disposition on the merits.

T7 The Court of Civil Appeals, finding that it was bound by this Court's order denying the motion to dismiss, held that the Tax Commission's action was barred by the ten-year limitations period of section 228(A) of title 68 of the Oklahoma Statutes. This Court granted certiorari.

III. PROPRIETY OF RE-EXAMINATION OF DISMISSAL ORDER

18 In LCR, INC. v. Linwood Properties, 1996 OK 73, ¶ 4, 918 P.2d 1388, this Court defined the parameters for reconsideration of Supreme Court pre-assignment dismissal orders. The extent of re-examination of such an order is subject to its language. Id. A motion to dismiss which is denied "with prejudice to renewal" may not be relitigated in either this Court or the Court of Civil Appeals. Id. at T5. A motion to dismiss which is denied expressly "without prejudice to renewal" may be re-examined sua sponte in this Court or the Court of Civil Appeals. Id.

19 If an order denying a motion to dismiss is silent as to its prejudicial effect, it may not be altered by the Court of Civil Appeals. Id. at 16. If the Court of Civil Appeals deems an order of this Court which is silent as to its renewability in need of reconsideration, it should request the case be recalled. Id. An order which is silent as to its prejudicial effect may be reconsidered by this Court either on certiorari or otherwise. Id. at 17. This Court's pre-assignment order denying the motion to dismiss is silent with respect to its prejudicial effect. Thus, the Court of Civil Appeals correctly reasoned that it was bound by the order. However, it is subject to reconsideration by this Court.

IV. REVIEW OF TAX COMMISSIONS ORDER OF FORFEITURE

{10 From a preliminary review of title 68, it would appear that an order of bond forfeiture is directly reviewable by this Court. However, an in-depth review of the applicable statutes necessitates a contrary result making this Court's order denying the motion to dismiss to be in error.

111 Under the Sales Tax Code, the Tax Commission may require an entity holding a sales tax permit to furnish a surety bond. Okla.Stat. tit. 68, $ 1868 (1991). The bond serves as collateral to "protect this state against failure of the taxpayer to pay the tax levied" for sales taxes by the Tax Commission. Id.

112 Subsection A of section 225 of title 68 of the Oklahoma Statutes provides: "Any taxpayer aggrieved by an order ... of the Oklahoma Tax Commission directly affecting the taxpayer ... may appeal therefrom directly to the Supreme Court of Oklahoma." Subsection 202(d)(1) defines "taxpayer" as "[alny person owing or liable to pay any state tax." Subsection 202(e) includes a corporation in the definition of "person", and subsection 202(g)(8) includes "insurance companies, including surety and bond companies" in the definition of "corporation". Under these provisions, a surety company may directly appeal to this Court adverse decisions of the Tax Commission when the surety company is liable for taxes which it directly incurs. A review of the tax code shows that this conclusion only applies if the surety company is subject to liability for having incurred the tax liability in the first place, not by virtue of its surety status and not because of the failure of its principal to properly remit taxes.

113 Under Oklahoma's Uniform Tax Procedure Act, Okla Stat. tit. 68, §§ 201-263 (1991), a surety may fall within two different classifications: one as a business or corporation who has directly incurred tax lability, and the other as a surety who has incurred a contractual collateral obligation for another's default. Under the first classification, a surety is included within the definition of "taxpayer." The issue then is whether, under the second classification, a surety is a "taxpayer" for purposes of section 225 when it is acting as a surety.

114 A tax is a pecuniary burden imposed upon a class of individuals, businesses, or other entities for support of government. Black's Law Dictionary 1807 (5th ed.1979). A sales tax is a statutorily imposed burden "on the sale of goods and based on their value." Id. at 1308. A tax liability is incurred by operation of law, not by contract. See id. Because a surety's liability is contractual, it cannot be a tax liability.

115 Rather, a surety is defined as "one who, at the request of another, and for the purpose of securing to him a benefit, ... hypothecates property as security therefor." Okla.Stat. tit, 15, § 371 (1991). Hy-pothecate means "[to pledge property as security or collateral for a debt." Black's Law Dictionary 668 (5th ed.1979). A statuto-vily-required surety bond is a contract subject to statutory mandates. Lum v. Lee Way Motor Freight, Inc., 1987 OK 112, ¶¶ 16-22, 757 P.2d 810, 815-816. Thus, the lability incurred by a surety is contractual for losses incurred by the principal's failure to properly remit taxes owed to the state; the liability is not a result of a statute imposing a tax. The liability incurred by the surety is not for taxes but a collateral obligation for the principal's failure to perform its statutory obligations. Thus, a surety acting in its capacity as a surety is not a taxpayer for purposes of section 225 of title 68. Even though this distinction is technical, it is the one made by the Legislature in Oklahoma's tax code.

116 The Oklahoma Legislature has recognized this difference in the manner provided for collection procedures. The collection procedures for taxes is statutorily different than for collection of the surety bond proceeds. When a tax assessment becomes final, the Tax Commission may issue a tax warrant for the collection of taxes. Okla. Stat. tit. 68, § 281 (1991). The tax warrant constitutes a judgment against the taxpayer and a lien upon the taxpayer's property. Id. In the present case, the Tax Commission did not seek recourse against the taxpayer Sun River except for sending notices.

17 In contrast as a prerequisite to collecting on a surety bond, the Tax Commission issues an order of forfeiture. Unlike a tax warrant, the order of forfeiture is not a final order or judgment. It does not completely dispose of all the issues nor does it prevent judgment against the surety. Gilliland v. Chronic Pain Associates, Inc., 1995 OK 94, ¶¶ 6-7, 904 P.2d 73; see Okla.Stat. tit. 12, § 953 (2002); Okla.Stat. tit. 68, § 225 (2002); Okla.Stat. tit. 75, § 312 (2002); Black's Law Dictionary 567, 756 (5th ed.1979). The forfeiture order does not cereate any liability on the surety's part, the Tax Commission must seek a judgment in the district court in order to effectuate the surety's liability, and the forfeiture order does not conclude the litigation between the Tax Commission and the surety. The forfeiture order is no more than a finding that taxes are owed by the bond's principal and a statement of intent that the Tax Commission intends to proceed on the bond.

{18 If the surety does not pay over the bond proceeds, then the Tax Commission "shall proceed" against the surety in district court. Okla.Stat. tit. 68, § 218 (2002). The Tax Commission's forfeiture order is similar to that addressed in State ex rel. Okla. Dept. of Mines v. Jackson, 1997 OK 149, 950 P.2d 306. The Tax Commission, like the Department of Mines, "is vested with the statutory authority to declare the performance bonds forfeited but lacks power to affect the sureties' liabilities." See 1997 OK 149 at ¶ 13, 950 P.2d 306. This Court stated: "Suit may be brought in the district court either to recover on the bonds or to secure exoneration of liability." Id. As in Jackson, the Tax Commission may sue in district court to recover on the bonds at which time USF & G may assert any available defenses. Also USF & G may seek exoneration of lability by filing suit. Okla.Stat. tit. 68, § 2183 (2002). This is the procedure that should have been followed in the case now before this Court.

v. CONCLUSION

1119 USF & G is not liable for a tax but is liable, if at all, for the loss to the state for Sun River's failure to perform it sales tax obligations. USF & G, acting as a surety, is not a taxpayer for purposes of section 202 of title 68. Thus, the forfeiture order was not directly appealable to this Court under seetion 225 of title 68. The Court of Civil Appeals' opinion is vacated. The appeal is dismissed.

HARGRAVE, C.J., HODGES, LAVENDER, SUMMERS, BOUDREAU, JJ., concur.

WINCHESTER, J., concurs in result.

KAUGER, J. (Joins OPALA, J.), concurs in part; dissents in part.

WATT, V.C.J. (Joins OPALA, J.), OPALA, J. (by separate writing,), dissents.

OPALA, J.,

with whom WATT, V.C.J., and KAUGER, J., join, dissenting.

I1 The court dismisses this appeal from the Oklahoma Tax Commission's [OTC] order declaring forfeiture of a statutory § 1368(A) bond upon concluding that appellate review of that order is unauthorized by statute.

12 I recede from the court's pronouncement. It is fraught with serious constitutional flaws. Today's denial of a surety's access to direct appeal from OTC's forfeiture order clearly offends the state as well as the federal fundamental law. It is also contrary to the legislative intent. Violated by the court's pronouncement are these constitutional mandates: (a) equal, uniform and unimpeded access to judicial review must be accorded to all final agency orders (Art. 2 § 6, Ok. Const.), (b) uniformity of procedure must be extended to judicial review of ageney forfeitures of statutory bonds (Art. 5 § 46, Okl. Const.), (c) agency procedures must comply with the strictures of equal protection (as well as of the anti-discrimination component of the state due process clause, Art. 2 § 7, Okl. Const.) and (d) de novo judicial review of agency-found jurisdictional facts (Due Process Clause of the 14th Amend., U.S. Const., and of Art. 2 § 7, Ok. Const) must be accorded to litigants adversely affected by the administrative process of adjudication. Moreover, the appeal's dismissal exposes OTC's bond forfeitures to a serious risk of fundamental-law attacks on the fairness and neutrality of the ageney process.

T3 The only judicial review of an OTC bond forfeiture declaration to be recognized as statutorily prescribed is by appeal to this court-which alone may afford corrective relief,. A bond forfeiture order stands impervious to a collateral attack. If it is not made subject to direct attack by appeal (or by some other authorized method), as the court holds today, it becomes forever unassailable unless, of course, it be facially void. The court's rejection of the surety's appeal denies it the law's only avenue of relief by direct appeal. What is even more shocking is that today's opinion injects into the enforcement process for statutory bonds a fatal fundamental-law flaw of court-created procedural asymmetry by seiting apart OTC's forfeitures as a distinct subclass that alone is made impervious to judicial re-examination via direct review in any forum.

I

TODAY'S DISMISSAL CREATES A SERIES OF FATAL CONSEQUENCES FOR THE STATUTORY BOND ENFORCEMENT REGIME

A.

Settled Law Makes All District-Court Forfeitures Appealable By Right

{4 Oklahoma's district-court procedural regime for establishing bail bond lability consists of three distinct stages. These are: (a) the court's declaration of forfeiture upon a criminal defendant's failure to appear, (b) the post-forfeiture imposition (or exoneration) of the surety's Hability upon its bond, which must be settled in a direct attack (by vacation quest or appeal or by both) and (c) post-judgment procedure for enforcing surety's liability. At the conclusion of each stage, a direct appeal is the aggrieved party's due.

B.

A Forfeiture Order Entered By Any Art. II Agency Is A Final (End-Of-The-Line) Order Appealable By Right

1 5 The procedural regime that governs an Art. II agency's bond enforcement process also is divided into three separate stages. These consist of: (1) the agency's declaration of bond forfeiture upon finding a principal obligor's default, (2) the post-forfeiture imposition (or exoneration) of the surety's liability for the bond's penalty in a district-court action (brought either by the obli-gee or by the surety) and (8) the post-judgment collection process. At the conclusion of each phase in this trichotomous division, an appeal from each stage-ending decision is the aggrieved party's due. In sum, a bond forfeiture by an Art. II agency is treated as a final (end-of-the line) order one that is reviewable by direct appeal to the district court.

C.

An OTC Bond Forfeiture, like that by the District Court or by an Art. II Agency, Is a Final (End-Of-The-Line) Order Appealable by Right

{6 The administrative bond enforcement process began in this case with OTC's determination of forfeiture. Upon the agency's declaration of forfeiture, the surety was entitled to direct judicial review-of what, without a doubt, must be deemed OTC's final order -by appeal to the Supreme Court which is the only tribunal with statutory power to grant corrective relief from any final order entered by that agency. The test of an order's finality, fashioned for appeals under the provisions of 12 § 953, is equally applicable here. That test is whether the aggrieved party stands precluded by the agency order from proceeding further before the tribunal upon the process then and there in progress. The test's articulation fits this case like a glove. By the bond's forfeiture the surety stood remedially barred from proceeding one step further for vindication of any of its pleas for relief then prosecuted before the agency.

17 The forfeiture order most certainly meets the § 953 standards for an OTC order appealable as final. OTC's declaration conclusively settles the sole issue then before the tribunal-that of the principal obligor's (taxpayer's) outstanding, enforceable but still unsatisfied obligation for payment of revenue secured by the bond. Beyond the point of forfeiture OTC would be sans jurisdiction, gua agency, to press its claim against the surety. The surety's only remaining authorized challenge to the forfeiture order is by showing on direct appeal that (a) the taxpayer does not owe the money secured by the bond, (b) the lability is barred by limitations or (c) the taxpayer owes less than the bond's penalty. USF & G's present appeal to this court seeks to show that the taxpayer's obligation in suit, though perhaps still outstanding, came to be extinguished by the law's time bar and is hence no longer enforceable.

D.

Appeals From OTC's Final Orders Are Cognizable Solely in the Supreme Court

€8 An appeal from a final disposition by OTC lies only to the Supreme Court. OTC is explicitly excluded from the provisions of Article II in the Administrative Procedures Act [APA] The law is equally well settled that an agency forfeiture, like that entered by a court, is subject only to a direct challenge. No collateral attack will lie upon an agency forfeiture order. If deprived of direct appeal the surety would be precluded from pressing, in a later district court proceeding, any forfeiture-related defenses interposed before OTC. No tribunal other than the Supreme Court is authorized to grant corrective relief from OTC's bond forfeiture.

T9 In sum, direct judicial review of OTC's bond forfeiture is clearly USF & G's statutory due. It is arbitrarily withheld from this surety (and from all other OTC sureties) by this court's pronouncement in utter disregard of the law's time-honored protections.

II

TODAY'S DISMISSAL IS FRAUGHT WITH GRAVE CONSTITUTIONAL CONSEQUENCES

A.

An Unreviewable OTC Forfeiture Order-the Novel Creature of Today's Pronouncement-Offends the Mandate of Art. 2 §§ 6 and 7, OklL. Const.

1 10 Because today's pronouncement withholds from every surety the remedy of direct appeal from OTC's forfeiture, and no collateral attack upon that specie of order is legally permissible, every OTC surety now stands deprived by today's pronouncement of access to any reviewing forum. By denying the surety direct access to the relief it seeks, the court's pronouncement offends both the open-access-to-court mandate of Art. 2 § 6, OkL Const., and the due process guarantee of Art. 2 § 7, Okl. Const. The latter includes an anti-discrimination component that condemns arbitrary procedural inequalities. Fundamental fairness cannot be afforded except within a framework of orderly and evenhanded application of procedure.

T11 Whenever a legislative act may by judicial interpretation become vulnerable to a fundamental-law infirmity, but through some other construction of the enactment's text both constitutional flaws and uncertainty could be avoided, it is this court's solemn duty to give the statute that meaning which will free its text or application from constitutional doubt. This principle stands ignored by today's opinion. The provisions of 68 O.8.Supp.1998 § 225 should be so construed as to confer upon an OTC surety the very same right of appeal as that which stands accorded an obligor taxpayer whose liability is secured by the bond. There can be no doubt that a taxpayer may appeal from a forfeiture order such as that on review here.

{12 In summary, I cannot countenance: (1) aseribing to the legislature an intent to deprive OTC sureties of access to this court for direct review of that agency's bond forfeitures and (2) divining such intent from any part of the Uniform Tax Procedure Code. Mindful of my duty to protect legislation, whenever possible, from fundamental-law doubt, I would hold that every surety on a statutory OTC bond must be accorded in the Supreme Court that range of appellate seru-tiny which is coextensive with one that (a) an aggrieved taxpayer may assert in an appeal from a final OTC order and one that (b) is available to the surety by appeals from forfeiture entered by an Art. II agency.

B.

Singling Out an OTC Surety For Different Treatment Offends The Provisions Of Art. 5 § 46, Okl. Const.

113 Art. 5 § 46, Okl. Const., mandates in absolute terms statewide procedural uniformity for an entire class of similarly situated persons or things. By its express terms the legislature is absolutely prohibited from regulating court procedure by disuniform laws. Although directed to the law-making assembly, the terms of § 46 are equally binding on the courts. This court's own jurisprudence, no less than the legislature's enactments, must faithfully conform to the fundamental law's prohibition against disuni-form laws on prohibited subjects. Judicial procedure is a subject explicitly protected from invasion by disuniformity created either by the Legislature or by the courts.

{14 Today's dismissal of USF & C's appeal destroys the symmetry of OKkla-homa's procedural regime for review of agencies' bond forfeitures. Depriving OTC's sureties of access to court for corrective relief from forfeiture orders singles out a subclass of aggrieved litigants for a less favorable treatment than that accorded by law to other agencies' sureties In sum, the court's opinion creates a disadvantaged subclass-that of OTC sureties-whose separate existence offends the state's fundamental-law prohibition against disuniform laws on prohibited subjects.

C.

Today's Exclusion of OTC Bond Forfeitures From Direct Review By the Supreme Court Offends The Equal

Protection Guarantee of Federal Fundamental Law and the Anti-Discrimination Component of the State Due Process Clause

11 15 Just as OTC must conform its procedural regime to due process standards, so also its bond forfeitures must comply with the strictures of equal protection. The command for discrimination-free procedural uniformity comes to us from both state- and federal-law sources. Whenever state law does not provide the authority necessary to carry out federal constitutional commands, resort must be had to the U.S. Constitution to accomplish the constitutionally mandated objective. The effect of singling out OTC bond forfeitures for a different procedural treatment from that accorded to other agency and district court forfeitures is no less offensive to the Equal Protection Clause than subjecting prisoners to a different mode of trial (nonjury) for mental-health commitment from that which is accorded other persons. In both instances a valuable and critical procedural device is withheld from a subclass without any rational relation to some characteristic that would make the distinction free from an impermissibly discriminatory impact.

1 16 For application of critical procedural safeguards all agency bond forfeitures and those of the district court comprise but a single indivisible class. That class is entitled to direct judicial review of forfeiture orders. This is so because those orders are terminal by nature since they are not subject to collateral attack. OTC's bond sureties cannot be deprived of a right of appeal unless their exclusion bears a rational relationship to some legitimate objective to be attained. No compelling governmental objective would support today's discriminatory exclusion of OTC sureties In sum, the court's absurdly restrictive construction of 68 O.S$.Supp.1998 § 225 creates a constitutionally impermissible dichotomous division of statutory sureties, making OTC sureties a procedurally disadvantaged subclass.

D.

Today's Dismissal Widely Exposes OTC's Bond Forfeitures to the Risk of a Fundamental-Law Attack on the Fairness and Neutrality of the Agency Process

{17 OTC appears here in two different capacities-as an administrative adjudicator and as a tax collector. In its former capacity, OTC sits as the adjudicator of bond forfeitures; in the latter, as a tax collector, its primary if not sole focus is on the government's need to protect its revenue stream from every solvent surety standing as an OTC bond obligor. Because these two functions are clearly inconsistent, OTC cannot be deemed an entirely neutral arbiter when it is called upon to declare bond forfeitures. No matter what federal or state law might say about the OTC commissioners' fitness to sit in an adjudicative capacity for declarations of forfeiture, barring the surety from access to a detached and neutral arbiter for subsequent review of the forfeiture order casts a serious doubt on the constitutional fairness of the antecedent process by which OTC is permitted to first pass on a bond forfeiture and then insulate its own decision from all available judicial serutiny.

18 The Constitution's neutrality mandate is now extended not just to judges but to agency decisionmakers as well. An administrative tribunal's impartiality is a sine gua mon element of due process within the meaning of the Fifth and Fourteenth Amendments. Independent judicial review will not only help maintain public confidence in the integrity of the OTC forfeiture process but also assure its procedural fairness. This court should guard against possible prejudice to the aggrieved party's constitutional and statutory rights by affording the surety the very same access to a § 225 appeal that it gives a taxpayer who stands as the principal obligor on the OTC bond.

E.

State and Federal Fundamental-Law Mandates De Novo Appellate Review of the Disputed Bond Forfeiture's Factual Underpinnings

1 19 There is another serious constitutional flaw in the court's pronouncement. This case presents a factual dispute over the correctness of OTC's bond forfeiture. The fac-tum of that forfeiture also serves to establish the agency's jurisdiction over the surety bond's enforcement. In the absence of forfeiture OTC has no cognizance over the surety, only over the taxpayer. Viewed in this context the OTC forfeiture order doubtless serves as an adjudication of a jurisdictional fact-the taxpayer's default. Oklahoma jurisprudence manifests a firm and unswerving commitment to that federal constitutional command by which de novo appellate review is required for every agency-found jurisdictional fact While originally rooted in federal constitutional pronouncements, this principle has since been woven into our own fundamental-law fabric. By its terms judicial serutiny of jurisdictional facts must be afforded by plenary, independent and nondeferential re-examination. Federal jurisprudence, as well as our own, calls for mandatory de novo review of jurisdictional facts tendered before an administrative ageney. This norm continues as a vital component of the federal due process.

120 Forfeiture presents no ordinary dispute. Here it tenders for review facts that determine OTC's cognizance over the surety's obligation. The surety's defense of limitations is inextricably interconnected with the taxpayer's default and the consequent forfeiture. Nay, OTC's very jurisdiction over the surety depends on the legal correctness of the agency findings that at the critical time in question (1) there was a taxpayer's default and (2) OTC's (obligee's) claim against the taxpayer was not then time-barred. If the tax liability did in fact stand extinguished by limitations, jurisdiction over the surety could not be lawfully exerted. In sum, both the tax debtor's default and the propriety of forfeiture present disputed jurisdictional fact issues for de novo consideration on review. Withholding from USF & G an opportunity for judicial review of OTC's forfeiture clearly offends that component of federal due process which unequivocally mandates judicial de novo scrutiny of agency-found jurisdictional facts.

III

SUMMARY

121 Because no bond forfeiture (whether administrative or judicial) may be vulnerable to a collateral attack, today's pronouncement leaves USF & G (surety) without any means of securing corrective relief from OTC's forfeiture, which the court comes to regard as nonreviewable. I must accordingly recede from the court's dismissal of USF & G's appeal.

122 OTC's forfeiture order is appeal-able. It is a conclusive determination of taxpayer's default upon an outstanding, enforceable and still unsatisfied obligation of the principal obligor. With what show of reason and constitutional fairness can the same order be appealed under § 225 by the defaulting taxpayer but not also by the surety whose bond stands as security for taxpayer's liability? Depriving OTC's bond obligor of appellate remedy strips it of important fundamental-law protections through denial of: (a) access to direct judicial review of OTC's bond forfeiture (Art. 2 § 6, OK. Const.); (b) uniformity of procedure for judicial review of agency forfeitures of statutory bonds (Art. 5 § 46, Ok. Const.); (c) equal protection of the laws (14th Amend., U.S. Const., and the anti-discrimination component of the state due process clause, Art. 2 § 7, Okl. Const.); and (d) de novo appellate review of ageney-found jurisdictional facts (Due Process Clause of the 14th Amend., U.S. Const., Art. 2, § 7, Ok. Const). Today's dismissal exposes OTC's bond forfeitures to a serious risk of fundamental-law attacks on the fairness and neutrality of the agency's antecedent process. The court may neither (a) deprive OTC's sureties of access to corrective relief by direct appeal nor (b) make OTC's forfeiturese-now made nonreviewable-vulnerable to a collateral attack in the district-court proceedings to follow. What is even worse, today's opinion impermissibly transforms OTC bonds into a status markedly different from that applicable to other agency or district-court statutory undertakings of like nature. It makes them impervious to all direct attacks upon forfeiture orders.

128 I would entertain the surety's quest for corrective relief by taking cognizance of this cause as an appeal for review of OTC's bond forfeiture-an agency order clearly appealable as final.

([ 24 Aside from the vice of being fraught with state and federal constitutional infirmities, the court's pronouncement also spawns another equally serious mischief. Its aftermath will more than likely deter insurers from posting OTC bonds for needy taxpayers. The grossly excessive exposure that is being foisted on sureties by today's pronouncement should prove to be an insuperable barrier to all those business entities which attempt to purchase undertakings in order to secure their potential liability for tax revenue collected from others. By leaving the surety to OTC's tender mercy, the court's pronouncement helps the ageney kill the goose that laid the golden egg.

      . IWe recognize that article II of the Administrative Procedures Act (APA), which consist of sections 308a through 323 of title 75 of the Oklahoma Statutes, does not apply to the Tax Commission. Okla.Stattit. 75, § 250.4(B)(1) (2002). This exclusion includes section 318 addressing judicial review of final agency orders. Id. at § 318.
      The forfeiture order was not a final agency order for purposes of the APA, see id. at § 312, but a statement by the Tax Commission that taxes were owed by the principal and the Tax Commission intended to fulfill its obligations to proceed on the bond. A final agency order pursuant to the APA is made after an individual proceeding, which this was not. Id. at§ 311. It also is one that includes "findings of fact and conclusions of law, separately stated." Id. at 312(A)(2). The forfeiture order before this Court bears none of the indicia of a final agency order. Even if Article II of the APA applied to the Tax Commission, section 318 of title 72 would not apply because the forfeiture order was not a final agency order.

      . 68 O.S.2001 § 1368(A).

      . 68 O.S.Supp.1998 § 225, infra note 39.

      . For the terms of Art. 2 § 6, Okl. Const., see infra note 30, and the text in Part II(A) infra.

      . For the terms of Art. 5 § 46, OKl. Const., see infra note 45, and the text in Part HI(B) infra.

      . For the terms of the Equal Protection Clause, see infra note 48, and the text in Part II(C), infra.

      . For the terms of Art. 2 § 7, OKI. Const., see infra note 31, and the text in Part II(C), infra.

      . For the Due Process Clause of Art. 2 § 7, OK. Const. and of the 14th Amend. see infra notes 31 and 53, and the text in Part II(E), infra.

      . See text in Part II(D), infra.

      . A direct attack is that which is launched in a manner and within the time authorized by law. In re Hess' Estate, 1962 OK. 74. ¶ 8, 379 P.2d 851, 853. For the definition of "collateral attack" see infra note 28.

      . See district court procedure for enforcing liability of the surety on bail bonds, 22 0.$.2001 § 1108; 59 0.$.2001 § 1332.

      . Although not immediately apparent to an untrained eye, the district court's trichotomous-division regime no less rigidly governs statutory bonds that are posted in the agencies as it does those given in other courts. The procedure for handling judgments on supersedeas bonds follows the described pattern. A Supreme Court judgment on supersedeas bond must be preceded by (1) "a forfeiture" that occurs when the trial court's decision is affirmed and (2) this court's denial of a direct attack on that decision launched through rehearing process. Only after those stages are completed may judgment be entered for the penalty on the bond. Although a supersedeas bond is posted in the trial court, judgment for its penalty may also be entered by the Supreme Court 12 0.$.2001 § 990.4(H).

      . The terms of 59 0.$.2001 § 1332(G) and (H) provide in pertinent part:
      G. The above procedures shall be subject to the bondsman's rights of appeal. The bondsman or insurer may appeal an order and judgment of forfeiture pursuant to the procedures for appeal set forth in Section 951 et seq. of Title 12 of the Oklahoma Statutes. To stay the execution of the order and judgment of forfeiture, the bondsman or insurer shall comply with the provisions set forth in Section 990.4 of Title 12 of the Oklahoma Statutes.
      H. For municipal courts of record, the above procedures are criminal in nature and ancillary to the criminal procedures before the trial court and shall be subject to the bondsman's right of appeal. The bondsman or insurer may appeal an order and judgment of forfeiture by the municipal courts of record to the Court of Criminal Appeals.
      (emphasis supplied).

      . Art. II of the Administrative Procedures Act, 75 0.$.2001 § 309 et seq.

      . "A penalty is a sum which a party agrees to pay or forfeit in the event of a breach ... where the covenant to pay is joined in by one or more sureties to ensure that the person injured shall collect ... Charles T. McCormick, Handbook on the Law of Damages § 146 at 600 (1935)," quoted in Black's Law Dictionary 1154 (7th ed.1999). As used in this opinion, penalty means simply the surety's obligation on the bond upon breaching its condition.

      . State ex rel. Oklahoma Department of Mines v. Jackson, 1997 OK 149, ¶ 13, 950 P.2d 306, 310.

      . State ex rel. Oklahoma Department of Mines, supra note 15 at 113, at 310, teaches that under Art. II of the Administrative Procedures Act a direct appeal lies to the district court for review of an agency's bond forfeiture. "[Issues that lie within an [Art. II] agency's original cognizance [such as bond forfeitures] may be considered by the district court only when it is entertaining an administrative appeal." Id.

      . A "final agency order" is defined by the Administrative Procedures Act [APA], 75 0.S.2001 § 250.3(5), as:
      [Alu order that includes findings of fact and conclusions of law pursuant to Section 312 of this title, is dispositive of an individual proceeding unless there is a request for rehearing and reopening, or reconsideration pursuant to Section 317 of this title and which is subject to judicial review;
      (emphasis added).
      Absent contrary statutory language an order is final within the meaning of 75 0.$.2001 § 318 when the administrative process ends and legal obligations resulting from that process are imposed. Conoco v. State Dept. of Health, 1982 OK 94, ¶ 9, 651 P.2d 125, 127.

      . State ex rel. Oklahoma Department of Mines, supra note 15 at ¶ 13, at 310.
      The terms of 75 0.$.2001 § 318 of the APA provide in pertinent part:
      A. 1. Any party aggrieved by a final agency order in an individual proceeding is entitled to certain, speedy, adequate and complete judicial review thereof pursuant to the provisions of this section and Sections 319, 320, 321, 322 and 323 of this title. ***
      {(emphasis added).

      . OTC is expressly invested with authority to declare a § 1368(A) sales tax bond forfeited. 68 0.$.2001 § 1368(B). Its 12 July 1999 forfeiture order in this cause sets out OTC's findings and conclusions:
      (1) Taxpayer, Sun River Development Inc., as principal, and United States Fidelity & Guaranty Co., as surety, have filed and posted with the Oklahoma Tax Commission Surety Bond # 56-0130-12514-86-9, dated August 28, 1986, in the amount of $18,000.00 to secure the payment of sales tax, penalty and interest due the State of Oklahoma by Taxpayer.
      (2) Taxpayer was on August 15, 1988, delinquent in the payment of sales tax for the periods(s) of January 01, 1987 to March 31, 1987 and July 9, 1987 to December 31, 1987, in the amount of $6,720.00, plus penalty in the amount of $688.00 and interest in the amount of $12,859.60, for a total amount due of $20,267.60.
      (3) Notice of such delinquency and of the amount then due was mailed to the taxpayer and to the surety on May 25, 1999, as provided by law.
      (4) More than thirty (30) days have elapsed since the mailing of said notice and the amount due as stated in said notice remains unpaid.
      NOW THEREFORE, IT IS HEREBY ORDERED by the Oklahoma Tax Commission that the said security has been and is forfeited to the Oklahoma Tax Commission, on behalf of the State of Oklahoma, in the amount of $18,000.00 plus accruing interest until paid as provided by law or in the total amount of said security, whichever sum is lesser.

      . State ex rel. Oklahoma Department of Mines, supra note 15 at ¶ 13, at 310.

      . For the APA's definition of "final order" for Art. II agencies, see supra note 17.

      . The terms of 75 0.$.2001 § 318(B) of the APA provide in pertinent part:
      B.1. The judicial review prescribed by this section for final agency orders, as to agencies whose final agency orders are made subject to review, under constitutional or statutory provisions, by appellate proceedings in the Supreme Court of Oklahoma, shall be afforded by such proceedings taken in accordance with the procedure and under the conditions otherwise provided by law, but subject to the applicable provisions of Sections 319 through 324 of this title, and the rules of the Supreme Court....
      {emphasis added).
      Taxpayers are entitled to direct judicial review of final OTC orders by appeal to the Supreme Court. 68 0.$.Supp.1998 § 225(A), infra note 39.

      . The court's opinion concedes this much by citing to the § 953 jurisprudence of this court.

      . Hammonds v. Osteopathic Hosp. Found. Ass'n, 1996 OK 54, ¶ 3, 917 P.2d 6, 7; Gilliland v. Chronic Pain Associates, Inc., 1995 OK 94, ¶ 8, 904 P.2d 73. An order is final within the meaning of 12 0.$.2001 § 953 if it prevents judgment upon the process in progress, even though the aggrieved party would have been free to abandon the course then in pursuit to relaunch or press the same claim along a different remedial track. Id. Extant § 953 jurisprudence unmistakably and consistently teaches that, to be appealable under this section, an order which "prevents a judgment" must preclude the appealing party from proceeding further in the case for the pursuit of the very relief that is then and there sought. Id.

      . 68 O.S.Supp.1998 § 225, infra note 39.

      . The terms of 75 0.S.Supp.2001 § 250.4(B) list those State agencies (or those classes of agency activities) explicitly exempted from compliance with the provisions of Article II of the APA (75 ©.$.2001 §§ 308a, 309 ef seq.). The Oklahoma Tax Commission is among the agencies that stand exempted. 75 O0.S.2001 § 250.4(B)(1). Lincoln Bank and Trust Co. v. Oklahoma Tax Com'n, 1992 OK 22, ¶ 8, 827 P.2d 1314, 1319.

      . For the definition of "direct attack" see supra note 9. A bond forfeiture declaration cannot be collaterally attacked in a subsequent action against either the principal or sureties on a bond. State ex rel. Oklahoma Department of Mines, supra note 15 at ¶ 13, at 310; Scholtes v. State, 1966 OK 166, ¶ 7, 420 P.2d 496, 498; Addington v. State ex rel. Pruet Co. Atty., 1935 OK 477, ¶ 10, 44 P.2d 131, 133; State ex rel. Wilson Co. Atty., v. Reger, 1924 OK 833, ¶ 3, 229 P. 470, 471; State ex rel. Sullivan v. Littrell, 1924 OK 585, 226 P. 872, syl 1; Andrews v. State ex rel. Saye, 1920 OK 333, 193 P. 873, syl 1.

      . A collateral attack is an attempt to avoid, defeat, evade or deny the force and effect of a final order or judgment in an incidental proceeding other than by appeal, writ of error, certiorari, or motion for new trial. Nilsen v. Ports of Call Oil Co., 1985 OK 104, ¶ 11, 711 P.2d 98, 101 n. 5 (citing Woods Petro. Corp. v. Sledge, 1981 OK 89, ¶ 7, 632 P.2d 393, 396 n. 4). For the definition of "direct attack"" see supra note 9.

      . The right to corrective relief by direct appeal from forfeiture orders is accorded to sureties on bonds running to other agencies. See discussion in Part II(B) that addresses the commands of Art. 5 § 46, OKI. Const.

      . The terms of Art. 2 § 6, OkL Const., are:
      The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.
      (emphasis added).

      . The terms of Art. 2 § 7, OklL. Const., are:
      No person shall be deprived of life, liberty, or property without due process of law.

      . For the terms of Art. 2 § 6, OKI. Const., see supra note 30. Depriving a surety from access to a reviewing court for judicial scrutiny of a final agency order is violative of Art. 2 § 6, Ok. Const. For exposition of the Art. 2 § 6 access-to-court right, see Brown v. Burkett, 1988 OK 13, ¶¶ 5-6, 750 P.2d 481, 482; State ex rel. Oklahoma Department of Mines, supra note 15 at ¶ 13, at 310; Carter v. Carter, 1989 OK 153, ¶ 2, 783 P.2d 969, 970; Tulsa Tribune Co. v. Okl. Horse Racing Com'n, 1986 OK 24, ¶ 21, 735 P.2d 548, 554-55 (overruled on other grounds); Moses v. Hoebel, 1982 OK 26, ¶ 10, 646 P.2d 601, 604; Elam v. Workers' Compensation Court of State, 1983 OK 16, ¶¶ 2-5, 659 P.2d 938, 941-42 (Opala, J., dissenting).

      . For the terms of Art. 2 § 7, Okl. Const., see supra note 31. Depriving a surety of direct access to the Supreme Court for review of a terminal OTC bond forfeiture constitutes a denial of due process by arbitrary exclusion. See discussion in Part II(C) infra. Agencies not governed by the APA's Art. II adjudicative process, 75 O.S.1991 §§ 308a, 309 et seq., are nonetheless bound by those portions of that Article which embrace due process concepts. C.F. Braun & Co. v. Corporation Commission, 1980 OK 42, ¶¶ 24-25, 609 P.2d 1268, 1273-74; Teleco, Inc. v. Corporation Com'n, 1982 OK 124, ¶ 14, 653 P.2d 209, 214; Harry R. Carlile Trust v. Cotton Petroleum, 1986 OK 16, ¶ 10, 732 P.2d 438, 442-43 n. 21; Amoco Production v. Corp. Com'n of Okl., 1986 OK CIV APP 16 ¶ 20, 751 P.2d 203, 207 (approved for publication by the Supreme Court); State ex rel. Henry v. Southwestern Bell, 1991 OK 134, ¶ 31, 825 P.2d 1305, 1317; Lincoln Bank and Trust Co. v. Tax Com'n, 1992 OK 22, ¶ 8, 827 P.2d 1314, 1319.

      . The Oklahoma Constitution's due process clause, which has a definitional sweep co-extensive with its federal counterpart, contains an anti-discrimination component. Strelecki v. Oklahoma Tax Com'n, 1993 OK 122, ¶ 23, 872 P.2d 910, 921; Ross v. Peters, 1993 OK 8, ¶ 16, 846 P.2d 1107, 1114 n. 29; McKeever v. Egbert, 1934 OK 763, ¶ 15, 40 P.2d 32, 35-36.

      . Joiner v. Brown, 1996 OK 112, ¶ 6, 925 P.2d 888, 890 (citing Pryse Monument Company v. District Court of Kay County, 1979 OK 71, ¶ 5, 595 P.2d 435, 438). "*** It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law." Joiner, supra at 890 n. 4, quoting from Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 179, 71 S.Ct. 624, 652, 95 L.Ed. 817 (1951) (Douglas, J., concurring).

      . When two different meanings may be ascribed to a statute through judicial construction, the court must arrive at that meaning which will make the enactment impervious to constitutional attack. State ex rel. Macy v. Board of County Com'rs of County of Oklahoma, 1999 OK 53, ¶ 16, 986 P.2d 1130, 1139; Strelecki v. Oklahoma Tax Com'n, 1993 OK 122, ¶ 23, 872 P.2d 910, 921; Earl v. Tulsa County Dist. Court, 1979 OK 157, ¶ 8, 606 P.2d 545, 548; Wilson v. Foster, 1979 OK 45, ¶ 16, 595 P.2d 1329, 1333 (overruled on other grounds); Neumann v. Tax Commission, 1979 OK 64, ¶ 7, 596 P.2d 530, 532; Special Indemnity Fund v. Dailey, 1954 OK 167, ¶ 9, 272 P.2d 395, 396-97 syl. 1; Chicago, R.I. & P. Ry. Co. v. Beatty, 1911 OK 332, 118 P. 367, 369 syl 2.

      . For the pertinent terms of 68 0.S.Supp.1998 § 225 see infra note 39.

      . 68 O.S.2001 §§ 201-263.

      . The terms of 68 O.S.Supp.1998 § 225(A) provide:
      A. Any taxpayer aggrieved by any order, ruling, or finding of the Tax Commission directly affecting such taxpayer or aggrieved by a final order of the Tax Commission issued pursuant to subsection (g) of Section 221 of this title may appeal therefrom directly to the Supreme Court of Oklahoma.

      . See cases cited in supra note 28.

      . See Johnson v. Tony's Town Mister Quik, 1996 OK 138, ¶ 5, 915 P.2d 355, 357-58; Reynolds v. Porter, 1988 OK 88, ¶¶ 13-19, 760 P.2d 816, 822-24; Maule v. Independent School Dist. No. 9, 1985 OK 110, ¶ 12, 714 P.2d 198, 203-04.

      . Maule, supra note 41, at ¶ 12, at 203-04; Reynolds, supra note 41, at ¶¶ 13-19, at 822-24; Great Plains Federal S & L Assn. v. Dabney, 1993 OK 4, ¶ 2, 846 P.2d 1088, 1095-96 (Opala, J., concurring).

      . Reynolds, supra note 41, at ¶¶ 13-19, at 822-24.

      . Id.

      . The terms of Art. 5 § 46, Okl. Const., are:
      The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing: *** Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts, justices of the peace, sheriffs, commissioners, arbitrators, or other tribunals, or providing or changing the methods for the collection of debts, or the enforcement of judgments or prescribing the effect of judicial sales of real estate;
      (emphasis supplied).

      . Braun, supra note 33, ¶¶ 22-24, at 1273-74; Cotton Petroleum, supra note 33, at ¶ 17, at 442-43; Amoco, supra note 33, at ¶ 20, at 207; Henry, supra note 33, at ¶ 31, at 1317; Lincoln, supra note 33, at ¶ 8, at 1319.

      . Groppi v. Wisconsin, 400 U.S. 505, 508-09, 91 S.Ct. 490, 492-93, 27 L.Ed.2d 571 (1971) teaches that conformity to constitutional procedure is compellable even when there is a lack of authorizing provisions in state law.

      . The Equal Protection Clause of the 14th Amendment requires that no state "deny to any person within its jurisdiction the equal protection of the laws." Although the Oklahoma Constitution does not include an equal protection clause like that found in its federal counterpart, this court has identified a functional equivalent of that clause in the anti-discrimination component of our state constitution's due process section. Art. 2 § 7, OK. Const., supra note 31; Strelecki, supra note 34, at ¶ 23. at 921; Ross, supra note 34, at ¶ 16, at 1114 n. 29; McKeever, supra note 34, at ¶ 15, at 35-36.

      . The ban on judicial review imposed today is as offensive to constitutional standards as that which the Court found in Baxstrom v. Herold, 383 U.S. 107, 110, 86 S.Ct. 760, 762, 15 L.Ed.2d 620 (1966), where excluding convicts only from the benefit of jury trial for determination of sanity was held to violate the 14th Amendment. See also Humphrey v. Cady, 405 U.S. 504, 508, 92 S.Ct. 1048, 1052, 31 L.Ed.2d 394 (1972).

      . The Equal Protection Clause, although not an absolute guarantee of equality of operation or application of state legislation, is intended to safeguard the quality of governmental treatment against arbitrary discrimination. Legislative classification which sets apart a class without any rational basis therefore offends that clause. In Wilson v. Foster, 1979 OK 45, ¶ 13, 595 P.2d 1329, 1332, the court applied equal protection norms to command a jury trial for a litigant who was arbitrarily excluded. Its pronouncement was based on the teachings of Baxstrom and Cady, supra note 49.

      . A classification which rationally furthers a legitimate state interest will withstand an equal protection challenge. Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 2332, 120 L.Ed.2d 1 (1992); Cleburne v. Cleburne Living Center. Inc., 473 U.S. 432, 439-41, 105 S.Ct. 3249, 3254-55, 87 L.Ed.2d 313 (1985).

      . In Gibson v. Berryhill, 411 U.S. 564, 578-79, 93 S.Ct. 1689, 1697-98, 36 L.Ed.2d 488 (1973), the Court held an optician licensing board whose members were drawn wholly from self-employed practitioners could not itself adjudicate unprofessional conduct charges brought against commercially (or non-self.employed) practitioners. The Court rested its holding of constitutional bias on the fact that the board members all possessed a "substantial pecuniary interest" in the outcome of proceedings in which they served as adjudicators. In Withrow v. Larkin, 421 U.S. 35, 55, 95 S.Ct. 1456, 1468, 43 L.Ed.2d 712 (1975), the Court found no constitutional infirmity in the combination of investigative and adjudicatory functions in a medical examining board; disqualification is required only when the biasing influence is strong enough to overcome the presumption of "honesty and integrity" of the adjudicators. , In Marshall v. Jerrico, Inc. 446 U.S. 238, 242, 100 S.Ct. 1610, 1613, 64 L.Ed.2d 182 (1980), the Court held that a statute under which determinations and assessment of penalties for violations of child labor laws are made by regional administrators of Department of Labor, and money from penalties is returned to the Department, did not violate due process because administrators act in prosecutorial capacity and are subject to review by administrative law judges.

      . The Due Process Clause of the 14th Amend., U.S. Const., commands that no State shall "deprive any person of life, liberty, or property, without due process of law. ..."
      Federal constitutional standards to be considered and complied with here did not arrive at the same time. They evolved in succession over many decades of U.S. Supreme Court's jurisprudence. Neutrality and detachment as a component of the 14th Amendment's Due Process Clause has been federally enforceable against state judicial officials since Tumey v. Ohio, 273 U.S. 510, 531-34, 47 S.Ct. 437, 444-45, 71 L.Ed. 749 (1927); the component's later extension to state administrative adjudicators came with Gibson, supra note 52, 411 U.S. at 578-79, 93 S.Ct. at 1697-98; lastly, the federal due process mandate for state judicial de novo review of agency-found jurisdictional facts arrived much earlier. Crowell v. Benson, 285 U.S. 22, 55-56, 52 S.Ct. 285, 293-94, 76 L.Ed. 598 (1932).

      . For the pertinent terms of 68 O.S.Supp.1998 § 225(A), supra note 39.

      . Jurisdictional facts are facts determining the authority of the lower tribunal to act in a case. The three requisite elements of jurisdiction are the trial tribunal's power (a) over the parties, (b) over the subject matter or (c) to pronounce the contested decision that was rendered. Estate of Mouse, 1993 OK 157, ¶ 9, 864 P.2d 1284, 1286; Hough v. Hough, 1989 OK 65, ¶ 4, 772 P.2d 920, 921; Chamberlin v. Chamberlin, 1986 OK. 30, ¶ 8, 720 P.2d 721, 725 n. 15; Mayhue v. Mayhue, 1985 OK 68, ¶ 10, 706 P.2d 890, 895; Scoufos v. Fuller, 1954 OK 363, ¶ 20, 280 P.2d 720, 723.

      . In a de novo appellate review the court exercises its judgment independently and without deference to the findings of fact or to the legal rulings made below. Johnson v. Rodgers, 756 F.2d 79, 81 (10th Cir.1985); see also State ex rel. Oklahoma Bar Ass'n v. Perceful, 1990 OK 72, ¶ 2, 796 P.2d 627, 630 n. 3 (Opala, V.C.J., dissenting).

      . Garrison v. Bechtel Corp., 1995 OK 2, ¶ 8, 889 P.2d 273, 278 (a fact-based compensation court dispute over which state was the place where the employment contract was entered into presents a jurisdictional issue for de novo review); Mahan v. NTC of America, 1992 OK 8, ¶ 5, 832 P.2d 805, 806 (overruled on other grounds) (a fact-based compensation court dispute over claimant's employment with the respondent tenders a jurisdictional issue for de novo review); Brown v. Burkett, 1988 OK 49, ¶ 4, 755 P.2d 650, 651 n. 6 (a master-servant relationship is a jurisdictional prerequisite for a compensation award). In McKeever Drilling Co., supra note 34 at ¶ 17, at 35-36, the court announced that in reviewing an award of the then compensation commission, it will not accept as conclusive that entity's findings of fact upon a jurisdictional question; rather, it will weigh the evidence and make its own "independent determination of fact' upon the record submitted. McKeever, relying on Crowell, supra note 53, 285 U.S. at 56, 52 S.Ct. at 294, distinguished between ordinary facts, which were those "necessary in the routine of administering the relief," and jurisdictional facts, which are "fundamental or jurisdictional in the sense that their existence is a condition precedent to the operation of the statutory scheme." McKeever Drilling Co., supra note 34 at 35.

      . Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287, 288-91, 40 S.Ct. 527, 528-29, 64 L.Ed. 908 (1920); Ng Fung Ho. v. White, 259 U.S. 276, 284-85, 42 S.Ct. 492, 495, 66 L.Ed. 938 (1922); Crowell, supra note 53, 285 U.S. at 56, 52 S.Ct. at 294.

      . McKeever, supra note 34 at 35 (the due process clause in Art. 2, § 7, Okl. Const., has a definitional range that is coextensive with its federal counterpart, 5th and 14th Amendments, U.S. Const.). The terms of Art. 2 § 7, Okl. Const., provide: "No person shall be deprived of life, liberty, or property, without due process of law." See also Black v. Ball Janitorial Service, Inc., 1986 OK 75, ¶ 8, 730 P.2d 510, 513 n. 9; Harry R. Carlile Trust, supra note 33, at ¶ 12, at 443 n. 25.

      . In Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991), the Court holds that intermediate appellate courts in the federal system must review de novo state-law determinations of the U.S. district courts. There, de novo appellate review is variously described as "plenary", "independent" or "nondeferential". The Court observes that "[when de novo review is compelled, no form of appellate deference is acceptable." Salve, supra, 499 U.S. at 238, 111 S.Ct. at 1224. "Because the error sought to be corrected is one from resolution of a jurisdictional fact issue, no deferential standard of review may be accorded ... to the trial tribunal's finding of employment status. Non-urisdictional fact issues, if supported by any competent evidence, are accepted as binding the trial tribunal findings." Brown, supra note 57 at 651 n. 6 (citing Parks v. Norman Municipal Hospital, 1984 OK 53, ¶ 12, 684 P.2d 548, 552).

      . In Ohio Valley Water Co., supra note 58, 253 U.S. at 289-291, 40 S.Ct. at 528-529, the Court holds that, as a matter of due process binding upon the states, the appellate court must give judicial review de ovo for appellate resolution of all jurisdictional fact issues coming from administrative agencies. In Ng Fung Ho, supra note 58, 259 U.S. at 284-85, 42 S.Ct. at 495, the Court held in a Chinese immigrant case that "jurisdictional facts" must be judicially reviewable de novo as a matter of federal due process. See also Crowell, supra note 53, 285 U.S. at 56, 52 S.Ct. at 294, a case arising under the Longshoremen's and Harbor Workers' Compensation Act which authorized the administrative body to award compensation (a) when the master-servant relationship existed and (b) when the injury was received upon navigable U.S. waters. There, the Court said: "A different question is presented where the determinations of fact are fundamental or 'jurisdictional' in the sense that their existence is a condition precedent to the operation of the statutory scheme."

      . Ohio Valley Water Co., supra note 58, 253 U.S. at 289-291, 40 S.Ct. at 528-529; Ng Fung Ho, supra note 58, 259 U.S. at 284-85, 42 S.Ct. at 495; Crowell, supra note 53, 285 U.S. at 56, 52 S.Ct. at 294.

      . For the definition of ordinary facts, see McKeever Drilling Co., supra note 57.

      . A surety must have access timely and effectively to press its defenses against forfeiture. OTC's persistence in (a) blocking USF & G from pressing its time-bar defense and (b) frustrating its access to judicial review of the forfeiture order by the Supreme Court might reinforce the surety's defense of exoneration to be pressed in the district court proceeding that will follow today's dismissal of its appeal 15 0.S$.2001 § 377(2); Restatement (Third) Suretyship and Guaranty §§ 19, 34(3), 37(1)(3)(e), 37(3)(e), 39, 43, 50. Exoneration is a statutory (§ 377) defense to liability on the forfeited bond. When a creditor acts in a way that impedes, impairs or destroys a surety's remedies and defenses, it creates an avenue of escape from liability by exoneration. OTC's acts, singly and in combination, operate to deprive the surety of its just and legally conferred access to press its lawful defenses, which in itself may be sufficient to constitute a complete exoneration in the district court proceedings to follow. Exoneration can be prevented if the court today would fashion a procedure to afford the surety an opportunity timely to raise the limitations defense at the forfeiture stage rather than as a statutory defense in the district court's judgment stage.
      According to the Restatement, supra, at § 34, a surety's exoneration can be triggered by acts of the creditor which "increase the surety's risk of loss" or "fundamentally alters the risks imposed on the secondary obligor." Restatement, supra, at § 34. Certain acts by the creditor have been long recognized as constituting a complete exoneration defense, such as allowing "the statute of limitations with respect to that obligation to expire." Restatement, supra at § 34(3) comment (e). State v. Bi-States Construction Co., Inc., 269 N.W.2d 455, 457 (Iowa 1978); Iola State Bank v. Biggs, 233 Kan. 450, 662 P.2d 563, 570 (1983); Bass v. Harkreader, 162 Tenn. 518, 39 S.W.2d 275, 276 (1931); Lutz v. Frick Co., 242 Ind. 599, 181 N.E.2d 14, 16 (1962); Alabama Surface Mining Reclamation v. Commercial Stand. Ins. Co., 469 So.2d 619, 620 (Ala.App.1985). "If the obligee impairs the secondary obligor's recourse against the principal obligor by ... (e) failing to institute an action before expiration of the statute of limitations governing the underlying obligation (§ 43) ... the secondary obligor is discharged from its duties pursuant to the second obligation to the extent set forth in those sections in order to prevent the impairment of recourse from causing the secondary obligor a loss." Restatement, supra, at § 37(3)(e).