FILE IN CLERKS OFFICE IUPREME COURT, STATE OF WASHINGTON
~- !0 2013
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
COST MANAGEMENT SERVICES, INC.
Respondent, NO. 87964-8
v. ENBANC CITY OF LAKEWOOD, a municipal corporation, and CHOI HALLADAY, Assistant City Manager for Finance, ·ocT 1o Filed - - - - - zo13- -
Petitioners.
Respondent,
v.
CITY OF LAKEWOOD, a municipal corporation,
Defendant.
GORDON McCLOUD, J.-For many years, Cost Management Services
Inc. (CMS) made a certain tax payment to the city of Lakewood. In late 2008, Cost Mgmt. Servs., Inc. v. City of Lakewood, et al. No. 87964-8
upon examining the relevant regulations, CMS decided that it did not in fact owe
the tax that it had been paying. In November 2008, it stopped paying the tax and it
submitted a claim to Lakewood for a refund of taxes it had previously paid from
2004 to September 2008.
Lakewood did not respond to the request for a refund of the 2004-2008 tax
payments. But six months later, in May 2009, it issued a notice and order to CMS
demanding payment of past due taxes for a different time period-October 2008 to
May 2009. CMS did not respond to the notice and order from Lakewood.
Instead, CMS sued Lakewood in superior court on its refund claim, asserting
a state common law claim of money had and received. The trial court held a bench
trial on that state law claim. The trial court found in favor of CMS, ruling that
CMS did not owe the taxes it had paid to Lakewood. In addition, in a separate
action, the trial court granted CMS 's petition for a writ of mandamus ordering
Lakewood to respond to the refund claim.
The Court of Appeals affirmed in a partially published opinion. Cost Mgmt.
Servs., Inc. v. City of Lakewood, 170 Wn. App. 260, 284 P.3d 785 (2012). It first
addressed Lakewood's argument that the trial court should have dismissed CMS' s
claim because CMS failed to exhaust its administrative remedies. The Court of
Appeals reasoned that since Lakewood had never actually responded to the refund
2 Cost Mgmt. Servs., Inc. v. City of Lakewood, et al. No. 87964-8
claim, CMS had no further administrative steps available to it on the refund claim,
and thus exhaustion was not required. The appellate court also ruled that the trial
court had properly issued the writ of mandamus. Lakewood sought review of the
Court of Appeals' decisions on the exhaustion and the mandamus issues, and we
accepted review. Cost Mgmt. Servs., Inc. v. City of Lakewood, 176 Wn.2d 1011,
297 P.3d 706 (2013). We affirm the Court of Appeals as to the exhaustion issue,
but we reverse the Court of Appeals as to the mandamus issue.
FACTS
CMS is an energy consulting firm that arranges the purchase and delivery of
natural gas for its customers from its offices on Mercer Island. Some of its
customers are in Lakewood. Between 2004 and 2008, CMS paid a tax to
Lakewood that CMS labeled, in its tax returns, an "occupation" tax. Report of
Proceedings (RP) 12/13/10 (a.m.) at 98-99. CMS paid the tax through September
2008. During that month, though, CMS discovered that Lakewood did not charge
any occupation tax. CMS had instead been paying an amount that apparently
corresponded to Lakewood's "utility" tax. RP 12/14/10 (a.m.) at 281-82. Liability
for that utility tax depended on CMS having a business license in, and doing
business in, Lakewood. CMS believed that it was not a business in, and did not do
business in, Lakewood. It therefore stopped paying the tax and wrote to Lakewood
3 Cost Mgmt. Servs., Inc. v. ·city of Lakewood, et al. No. 87964-8
in November 2008 requesting a refund for taxes mistakenly paid between January
2004 and September 2008.
Lakewood did not respond to CMS' s request. Instead, in May 2009, over
six months after CMS' s refund request, Lakewood sent CMS a "NOTICE AND
ORDER/DEMAND FOR TAX PAYMENT." Def.'s Ex. 3. That notice and order
asserted that CMS did business in Lakewood and therefore owed taxes from the
time it had stopped paying in October 2008. It demanded payment of taxes "from
October of 2008 to the present" and also ordered CMS to apply for and obtain a
business license from Lakewood. !d.
In June 2009, CMS filed suit in Pierce County Superior Court alleging that
Lakewood owed it a refund and had failed to respond to its refund claim.
Lakewood sought summary judgment, claiming that CMS had failed to exhaust its
administrative remedies. The trial court disagreed, eventually held a bench trial,
and found that Lakewood owed CMS approximately $600,000.
CMS had initiated its suit on June 24, 2009. It asserted that Lakewood owed
it a refund for taxes paid from January 2004 to September 2008. During the
litigation, the trial court ruled that CMS' s claim for a refund of taxes before June
24, 2006, was barred by the three year statute of limitations. Thus, even if CMS
won at trial, its recovery would be limited to the period of June 24, 2006 to
4 Cost Mgmt. Servs., Inc. v. City of Lakewood, et al. No. 87964-8
October 1, 2008. In an attempt to recover taxes it had paid before June 2006, CMS
filed another, separate action in the Pierce County Superior Court seeking a writ of
mandamus to compel Lakewood to respond to CMS's November 2008 refund
request. The trial court consolidated that case with the first case CMS had filed
and granted the writ. The bench trial concluded with a judgment in favor of CMS. 1
Lakewood appealed that judgment and the order granting CMS 's petition for a writ
of mandamus. The Court of Appeals affirmed. Cost Mgmt. Servs., 170 Wn. App.
260. Lakewood sought review in this court of two specific issues: first, whether
the Court of Appeals erred in concluding that exhaustion of administrative
remedies was not required; and second, whether the Court of Appeals erred in
affirming the order granting the petition for a writ of mandamus.
ANALYSIS
1. WHETHER CMS WAS REQUIRED TO EXHAUST ADMINISTRATNE REMEDIES
1 CMS received a judgment of $424,803.36 for taxes paid from June 24, 2006 through October 1, 2008, as allowed by the statute of limitations, plus $176,149.39 in prejudgment interest, for a total judgment of $600,952.75. Clerk's Papers (CP) at 715. That judgment did not include any recovery related to CMS' s pursuit of an administrative remedy based upon the trial court's issuance of mandamus ordering Lakewood to respond to CMS' s refund request. In fact, the record before us does n~t indicate what occurred with respect to further administrative proceedings in Lakewood after the court issued a writ of mandamus. At oral argument, however, counsel for Lakewood suggested that that part of this case is presently before Lakewood's hearing examiner. Wash. State Supreme Court oral argument, Cost Mgmt. Servs., Inc. v. City of Lakewood, No. 87964-8 (May 16, 2013), at 9 min., 33 sec., audio recording by TVW, Washington State's Public Affairs Network, available at http://www.tvw.org. 5 Cost Mgmt. Servs., Inc. v. City of Lakewood, et al. No. 87964-8
a. Standard ofReview
We have never directly stated the standard of review in this court of a lower
court's determination regarding exhaustion of administrative remedies. We have,
however, stated that "[t]he exhaustion issue is a question of law for the trial court
to decide." Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 19 n.10, 829 P.2d 765
(1992) (citing Estate of Friedman v. Pierce County, 112 Wn.2d 68, 76, 768 P.2d
462 (1989)). We review questions of law de novo. Robb v. City of Seattle, 176
Wn.2d 427, 433, 295 P.3d 212 (2013). Therefore, we review de novo whether
exhaustion of administrative remedies was required in this case.
b. Exhaustion Doctrine
This court has long applied "the general rule that when an adequate
administrative remedy is provided, it must be exhausted before the courts will
intervene." Wright v. Woodard, 83 Wn.2d 378, 381, 518 P.2d 718 (1974) (citing
State ex rel. Ass 'n of Wash. Indus. v. Johnson, 56 Wn.2d 407, 353 P.2d 881
(1960)). To determine if the rule applies, we examine whether the party seeking
relief "has an administrative remedy" and whether any "attempt has been made to
pursue that remedy." I d. at 382. If the party seeking relief has an administrative
remedy, and did not pursue it before turning to the courts, then it is error for a trial
court to entertain the action. Id.
6 Cost Mgmt. Servs., Inc. v. City of Lakewood, et al. No. 87964-8
The exhaustion rule "is founded upon the belief that the judiciary should
g1ve proper deference to that body possessing expertise in areas outside the
conventional expertise of judges." Citizens for Mount Vernon v. City of Mount
Vernon, 133 Wn.2d 861, 866, 947 P.2d 1208 (1997) (citing S. Hollywood Hills
Citizens Ass 'n for Pres. of Neighborhood Safety & Env't v. King County, 101
Wn.2d 68, 73, 677 P.2d 114 (1984)). We have identified several policy bases for
the rule:
( 1) insure against premature interruption of the administrative process; (2) allow the agency to develop the necessary factual background on which to base a decision; (3) allow exercise of agency expertise in its area; (4) provide for a more efficient process; and (5) protect the administrative agency's autonomy by allowing it to correct its own errors and insuring that individuals were not encouraged to ignore its procedures by resorting to the courts.
ld. (citing McKart v. United States, 395 U.S. 185, 193-94, 89 S. Ct. 1657, 23 L.
Ed. 2d 194 (1969)). The primary question in exhaustion cases, however, is
whether the relief sought can be obtained through an available administrative
remedy; if so, the party seeking relief must first seek relief through the
administrative process. See id.
c. Should Exhaustion Apply Where CMS Requested a Tax Refund, and Lakewood's Only Action Thereafter Was a Demand for Payment of Different Taxes, Not a Response to the Refund Request?
7 Cost Mgmt. Servs., Inc. v. City of Lakewood, et al. No. 87964-8
Lakewood asks us to review the Court of Appeals' conclusion "that superior
courts and the local hearing examiners have 'concurrent jurisdiction' over
municipal tax disputes on the theory that an equitable cause of action vitiates the
requirement of exhaustion." Pet. for Review at 7. Lakewood is concerned that the
"import of the Court of Appeals' decision is to provide a license for litigants to
evade exhaustion requirements." Suppl. Br. of Pet'rs at 16. We disagree with
Lakewood's interpretation of the Court of Appeals' holding; the Court of Appeals
did not hold that an equitable cause of action vitiates the requirement of
exhaustion. It held that Lakewood's inaction in response to CMS' s refund request
ended CMS's obligation to continue pursuing a remedy in that forum. Cost Mgmt.
Servs., 170 Wn. App. at 272. Thus, Lakewood's concern is misplaced.
1. The Court of Appeals Correctly Held That Lakewood's Notice and Order Was Not a Response to CMS's Refund Claim
The Court of Appeals first held that there had been no final administrative
decision by Lakewood: "CMS persuasively argues that this Notice and Order did
not constitute a denial of CMS 's refund claim but was, instead, a demand for
payment of taxes .... Lakewood cannot now characterize that Notice and Order to
pay taxes as a final agency determination denying CMS 's refund claim." I d.
(citation omitted).
8 Cost Mgmt. Servs., Inc. v. City of Lakewood, et al. No. 87964-8
Based on this determination, the appellate court concluded that there was
nothing left for CMS to do in the Lakewood forum:
Lakewood contends that its hearing examiner system provides adequate administrative remedies to review its Notice and Order and, thus, CMS may not enjoy judicial review without exhausting these available administrative procedures. The [Lakewood Municipal Code] provides an administrative remedy only for review of a final order. CMS is not appealing from the May 13 Notice and Order demanding payment of current and future taxes but instead was seeking a tax refund for taxes already paid. Thus, CMS had no administrative mechanism to pursue a refund of taxes wrongly paid.
Cost Mgmt. Servs., 170 Wn. App. at 273.
Finally, the appellate court stated, "Ultimately, CMS's claim was an action
m equity for 'money had and received'; and, under both the Washington
Constitution and state statute, the supenor court properly maintained original
jurisdiction to hear the equity claim." Id. at 274.
Reading those passages together, we are convinced that the Court of Appeals
did not hold that "an equitable cause of action vitiates the requirement of
exhaustion." Pet. for Review at 7. Instead, the Court of Appeals decision that
CMS need not make any further attempts to exhaust resulted from its
determination that "CMS had no administrative mechanism to pursue a refund of
taxes wrongly paid" because Lakewood had never responded. to CMS' s refund
request. Cost Mgmt. Servs., 170 Wn. App. at 273.
9 Cost Mgmt. Servs., Inc. v. City of Lakewood, et al. No. 87964-8
In its supplemental briefing, Lakewood asserts "that [Lakewood's] hearing
examiner system provides adequate administrative remedies to review its Notice
and Order and, thus, CMS may not enjoy judicial review without exhausting these
available administrative procedures." Id. Lakewood similarly asserted at oral
argument that the Lakewood Municipal Code (LMC) provides a procedure by
which a taxpayer whose refund claim is denied could start the process of appealing
through the Lakewood system and that CMS was required to use that procedure. 2
See LMC 3.52.150-.160. Assuming that Lakewood is correct that its ordinance-
created appeal process was available to CMS in this case, CMS began that process
with its refund request. Lakewood, however, took no action on that request. As
the Court of Appeals correctly determined, Lakewood's notice and order was not a
response to CMS's refund request for the period of 2004 through September 2008,
but rather a demand for payment of taxes relating to an entirely different time
period-"October 2008 to the present." Def.'s Ex. 3. Lakewood simply failed to
respond to CMS's initiation of the administrative process laid out in the LMC.
Lakewood cannot place CMS in a catch-22 by refusing to respond to CMS's
refund request, issuing its own demand for payment, and then claiming CMS
2 Wash. State Supreme Court oral argument, Cost Mgmt. Servs., Inc. v. City of Lakewood, No. 87964-8 (May 16, 2013), at 2 min., 45 sec., audio recording by TVW, Washington State's Public Affairs Network, available at http://www.tvw.org. 10 Cost Mgmt. Servs., Inc. v. City of Lakewood, et al. No. 87964-8
cannot pursue a remedy for its refund request before addressing Lakewood's
demand for payment. CMS did everything it was required to do to exhaust its
administrative remedies. Cf Bowen v. Dep 't of Soc. Sec., 14 Wn.2d 148, 154, 127
P.2d 682 (1942) (en bane) (holding that where an agency failed to respond to a
request for a hearing, "so far as these proceedings are concerned, respondent
exhausted his administrative remedies when he made demand upon the department
for a fair hearing").
We therefore affirm the Court of Appeals' decision that the exhaustion
doctrine did not bar CMS' s suit in superior court. Exhaustion is required only if an
administrative remedy can provide the relief sought. Jones v. Dep 't of Health, 170
Wn.2d 338, 356, 242 P.3d 825 (2010). But an administrative appeal of
Lakewood's demand for payment for the period "October 2008 to the present,"
Def.'s Ex. 3, would have had no bearing on CMS 's refund request for taxes paid
"between January 1, 2004 and September 30, 2008," Def.'s Ex. 1. Thus, the
administrative process available to CMS could not have provided an adequate
remedy for that refund request. The Court of Appeals correctly determined that
Lakewood's failure to respond to the tax refund request, and not the fact that CMS
brought a state law claim in equity, vitiated the exhaustion requirement.
11 Cost Mgmt. Servs., Inc. v. City of Lakewood, eta!. No. 87964-8
11. The Court of Appeals' Discussion of Original Jurisdiction Is Potentially Confusing
The Court of Appeals correctly held that CMS 's suit was not barred by the
exhaustion requirement because Lakewood did not properly respond to CMS' s
refund claim. However, one of the Court of Appeals' statements may be
misleading. After deciding that Lakewood had never actually responded to CMS' s
refund claim, and holding on that basis that CMS' s suit was not barred, the Court
of Appeals further concluded that Lakewood's hearing officer and the superior
court had "concurrent original jurisdiction," and CMS could therefore "refer its
claim to either the hearing examiner or superior court." Cost Mgmt. Servs., 170
Wn. App. at 274 (citing Chaney v. Fetterly, 100 Wn. App. 140, 145-46, 995 P.2d
1284 (2000)).
Lakewood interprets that language to mean that no exhaustion was required
because the trial court had concurrent original jurisdiction with Lakewood's
hearing officer in equitable matters. As explained above, the Court of Appeals'
decision was instead properly based on the lack of an adequate administrative
remedy. Nevertheless, amicus Washington Association of Municipal Attorneys
(WAMA), in its brief in support of Lakewood's petition for review, agrees with
Lakewood's interpretation. Br. of Amicus WAMA at 9.
12 Cost Mgmt. Servs., Inc. v. City of Lakewood, et al. No. 87964~8
That interpretation of the Court of Appeals' holding would be an incorrect
statement of the law. Therefore, we take this opportunity to clarify that even if
original jurisdiction in a case lies with the superior court, exhaustion of
administrative remedies is still required.
The parties believe that the confusion over the relationship between original
jurisdiction and exhaustion stems from an earlier case from this court, Qwest Corp.
v. City of Bellevue, 161 Wn.2d 353, 166 P.3d 667 (2007). In Qwest, this court did
suggest that if a superior court has original jurisdiction, exhaustion is not required.
We stated, "Qwest cites Chaney v. Fetterly, 100 Wn. App. 140, 145, 995 P.2d
1284 (2000) for the proposition that where a court has original jurisdiction over a
dispute, the administrative exhaustion requirement does not apply." Qwest, 161
Wn.2d at 370~71. 3 Although the Qwest opinion mentions the proposition only in
passing, Chaney explains its reasoning in detail:
3 The Court of Appeals below did not cite Qwest, but it did cite Chaney for the proposition that the superior court and hearing officer had concurrent original jurisdiction over the tax refund claim. Cost Mgmt. Servs., 170 Wn. App. at 274 (citing Chaney, 100 Wn. App. at 145~46). Since Qwest expressly relied on Chaney, and the Court of Appeals below cited Chaney, the parties understandably argue that the Court of Appeals' holding below is based on Qwest. However, as explained above, the Court of Appeals relied on the absence of a response from Lakewood to CMS' s refund claim, rather than original jurisdiction, in determining exhaustion did not bar CMS's suit in this case. To the extent that the Court of Appeals' opinion implies that original jurisdiction vitiates the exhaustion requirement, as Lakewood and WAMA assert that it does, it is incorrect. 13 Cost Mgmt. Servs., Inc. v. City of Lakewood, et al. No. 87964-8
Whether the doctrine of exhaustion applies depends on the nature of the relationship between the administrative agency and the superior court. In situations where each has jurisdiction of some kind, the agency may have original jurisdiction, while the superior court has appellate jurisdiction; or . . . the agency and the superior court may have concurrent original jurisdiction.
Chaney, 100 Wn. App. at 145. According to Chaney, "The doctrine of exhaustion
regulates the first relationship. It prevents a party from omitting to use, or starting
to use but then abandoning before final conclusion, the only forum that has original
jurisdiction." Id. at 146. Chaney concluded that, as a result, the exhaustion rule
does not apply "when a superior court and a quasi-judicial administrative agency
have concurrent original jurisdiction." Id. at 141. Thus, Chaney aligns the
constitutional concepts of appellate and original jurisdiction with the exhaustion
doctrine.
WAMA and Lakewood are correct that this cannot be an accurate (or at least
complete) statement of the law. We have cautioned, in a different context, that "by
intertwining procedural requirements with jurisdictional principles, . . . separate
issues ... have been blurred. As a result, unfortunately, procedural elements have
sometimes been transformed into jurisdictional requirements." Dougherty v. Dep 't
of Labor & Indus., 150 Wn.2d 310,315,76 P.3d 1183 (2003). Qwest and Chaney
represent analogs-in the context of exhaustion of administrative remedies-of the
14 Cost Mgmt. Servs., Inc. v. City of Lakewood, et al. No. 87964-8
sort of blurring of procedural elements and jurisdictional requirements that
Dougherty warns of.
Superior courts in this state "have original jurisdiction in all cases and of all
proceedings in which jurisdiction shall not have been by law vested exclusively in
some other court." WASH. CONST. art. IV, § 6. Superior courts also have "such
appellate jurisdiction in cases arising in justices' and other inferior courts in their
respective counties as may be prescribed by law." !d. No one argues that in this
case there is a law vesting exclusive jurisdiction of municipal tax refund claims
somewhere other than the superior court. Cf State v. Posey, 174 Wn.2d 131, 136,
272 P.3d 840 (2012) ("[B]y limiting the common law tort claims of injured
workers and creating administrative procedures and enhanced remedies under the
Industrial Insurance Act, the legislature effectively modified the role of the
superior courts over such claims." (citation omitted)). And amicus WAMA
properly points out that Superior Courts in this state have original jurisdiction over
all kinds of matters where jurisdiction has not been exclusively vested elsewhere-
"cases in equity, real property, the legality of any tax, inter alia." Br. of Amicus
WAMAat9.
Exhaustion, on the other hand, is a doctrine of judicial administration; courts
applying exhaustion consider whether an adequate administrative remedy exists
15 Cost Mgmt. Servs., Inc. v. City of Lakewood, et al. No. 87964-8
that the claimant should try first because of the courts' "belief that the judiciary
should give proper deference to that body possessing expertise in areas outside the
conventional expertise of judges." Citizens for Mount Vernon, 133 Wn.2d at 866
(citing S. Hollywood Hills Citizens Ass 'n, 101 Wn.2d at 73).
The exhaustion doctrine has no bearing on the jurisdiction of the court in 4 terms of the constitutional power of the court to hear a case. Thus, to the extent
that the Court of Appeals' opinion suggests that a superior court's original
jurisdiction over a claim vitiates the exhaustion requirement, we disagree. A
superior court's original jurisdiction over a claim does not relieve it of its
responsibility to consider whether exhaustion should apply to the particular claim
before the court.
2. Whether the Trial Court Erred When It Granted CMS' s Petition for a Writ of Mandamus
Writs of mandamus are subject to two separate standards of review,
depending on the question reviewed. First, a writ of mandamus "may be issued by
4 In addition to its argument that it had no administrative remedy to pursue, CMS argues that exhaustion is not required for recovery of wrongfully paid taxes because the superior court has original jurisdiction over the "legality of any tax." WASH. CONST. art. IV, § 6. CMS asserts that under Qwest, no exhaustion is required if the court has original jurisdiction, and thus it cannot be required to exhaust its remedies. For the reasons discussed, CMS' s argument is incorrect. 16 Cost Mgmt. Servs., Inc. v. City of Lakewood, et al. No. 87964-8
any court ... to compel the performance of an act which the law especially enjoins
as· a duty .... " RCW 7.16.160. Moreover, "[t]he determination of whether a
statute specifies a duty that the person must perform is a question of law." River
Park Square, LLC v. Miggins, 143 Wn.2d 68, 76, 17 P.3d 1178 (2001). Thus,
since we review questions of law de novo, we review de novo the question whether
a statute specifies a duty such that mandamus may issue. But "[w]hether there is a
plain, speedy, and adequate remedy in the ordinary course of the law is a question
left to the discretion of the court in which the proceeding is instituted." I d. (citing
State ex rel. Hodde v. Superior Court, 40 Wn.2d 502, 517, 244 P.2d 668 (1972)).
We reverse discretionary decisions of the trial court only if "the superior court's
discretion was manifestly unreasonable, or exercised on untenable grounds, or for
untenable reasons." I d. (citing State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26,
482 P.2d 775 (1971)). Therefore, to sum up, if the question raised is whether a
statute prescribes a duty that will support issuance of a writ of mandamus, our
review is de novo. But if the question raised is whether there existed an adequate
remedy at law that precludes issuance of mandamus, we review the trial court's
decision for abuse of discretion. 5
5 Arguably, the second standard does not always apply. For example, whether an adequate remedy exists will often turn on regulatory or statutory interpretation. In such instances, the question is one of law that we review de novo. 17 Cost Mgmt. Servs., Inc. v. City of Lakewood, et al. No. 87964-8
b. The Trial Court Erred in Issuing a Writ of Mandamus Compelling Lakewood To Hear CMS 's Refund Claim
CMS sought and obtained a writ of mandamus from the trial court
compelling Lakewood to respond to its refund claim. Lakewood asserts the court
erred by issuing the writ.
First, Lakewood argues the application for the writ was untimely. The
general rule is that mandamus "should be sought within the same period as that
allowed for an appeal." State ex rel. Von Herberg v. Superior Court, 6 Wn.2d 615,
618, 108 P.2d 826 (1940) (citing State ex rel. Hawksworth v. Clifford, 130 Wash.
103, 226 P. 272 (1924)). Lakewood argues that the writ application was untimely
because it was filed after the period for appealing its notice and order had expired.
But since the notice and order had nothing to do with the refund claim it cannot
affect the timeliness of a writ application related to that refund claim. Therefore,
Lakewood's first argument fails.
Second, Lakewood argues that a writ of mandamus was improper because its
notice and order constituted a final agency action in response to CMS' s refund
claim, so Lakewood had already complied with its duty to respond to CMS 's
claim. As described above, however, the Court of Appeals correctly held that
18 Cost Mgmt. Servs., Inc. v. City of Lakewood, et al. No. 87964-8
Lakewood never responded to CMS's claim; therefore, Lakewood's second
argument fails.
Third, Lakewood argues in its petition for review that CMS cannot get a writ
of mandamus because it was maintaining a suit at the same time, seeking the same
thing (a tax refund). Lakewood argues that CMS could get a double return by
pursuing its administrative remedies while also getting relief in superior court.
CMS responds that the reason it applied for a writ of mandamus was because the
three year statute of limitations on its claim in state court prevented recovery of
taxes paid before June 24, 2006 (because it filed suit on June 24, 2009). CMS
asserts it has no avenue to reach the money it paid before June 2006 except
Lakewood's administrative process. And under CMS's theory of the case, it was
denied access to that administrative process because Lakewood never responded to
its refund request. Thus, CMS asserts, mandamus was proper to force Lakewood
to respond to its refund request as the only means by which CMS could recover
taxes paid before June 2006.
Neither party has produced authority on this particular issue, but we disagree
with CMS' s argument, although for different reasons than those suggested by
Lakewood. The problem is not that CMS might get a double recovery. Rather, the
problem is that CMS might get any recovery for the stale, time-barred, portion of
19 Cost Mgmt. Servs., Inc. v. City of Lakewood, et al. No. 87964-8
its claim. CMS chose to answer Lakewood's failure to respond to its refund claim
by filing suit in superior court. CMS could also have chosen (although it was not
required to do so) to seek mandamus from the superior court to force Lakewood to
respond. Instead, CMS first filed suit, and then sought mandamus only after the
trial court informed it that its recovery in superior court was constrained by the
three year statute of limitations. In essence, CMS seeks to use the administrative
process to revive a claim otherwise barred by the three year statute of limitations.
The statute of limitations is "a legislative declaration of public policy which
the courts can do no less than respect." JM Arthur & Co. v. Burke, 83 Wash. 690,
693, 145 P. 974 (1915) (citing Thomas v. Price, 33 Wash. 459, 74 P. 563 (1903)).
Courts "will not, as a general rule, read into statutes of limitation an exception
which has not been embodied therein .... " Rushlight v. McLain, 28 Wn.2d 189,
199-200, 182 P.2d 62 (1947) (quoting 34 AM. JUR. Limitation of Actions § 186, at
150 (1941)).
We do not believe that the administrative process can be used to provide a
way around the statute of limitations in this case. A federal district court case
provides an illustrative example. Ladzinski v. MEBA Pension Trust, 951 F. Supp.
570 (D. Md.), aff'd, No. 97-1237, 1997 WL 452237 (4th Cir. Aug. 11, 1997)
(unpublished). Ladzinski applied for his federally regulated pension benefits in
20 Cost Mgmt. Servs., Inc. v. City of Lakewood, et al. No. 87964-8
1972. !d. at 573. The responsible administrative board calculated his pension and
advised Ladzinski of his right to appeal if he disagreed with the calculation. Id.
Ladzinski filed an appeal of that decision in 1993. I d. Despite that appeal coming
over 20 years after the initial decision, the board heard it and denied it. Id.
Ladzinski then appealed that denial to the United States District Court in 1996. Id.
Ladzinski argued that the board's recent determination of his administrative appeal
made his appeal to the district court timely. Id. at 574 n.l. The district court
disagreed. It explained that the administrative process cannot overcome the statute
of limitations, and "the purpose of the statute of limitations would be defeated if
Ladzinski were able to preserve his ... action indefinitely." Id.
Here, CMS seeks mandamus for the express purpose of reaching back
beyond the legal statute of limitations. We do not think the statute of limitations
can be overcome by such a use of the administrative process. Under the
circumstances of this case, we hold that CMS cannot choose first to pursue
recovery through the courts, and then attempt to bypass the statute of limitations
that necessarily applies as a result of that choice by seeking relief through the
administrative process. We therefore reverse the Court of Appeals on this issue
and hold that the trial court erred in granting CMS' s petition for a writ of
mandamus.
21 Cost Mgmt. Servs., Inc. v. City of Lakewood, et al. No. 87964-8
CONCLUSION
The Court of Appeals correctly held that CMS was not required to exhaust
administrative remedies in this case because none were available: without a
response by Lakewood to CMS's refund claim, there was no other administrative
step for CMS to take. We clarify, however, that the exhaustion requirement is not
vitiated by the fact that the superior court has original jurisdiction over a claim.
Instead, in this case, it was vitiated by Lakewood's inaction. Finally, we hold that
the trial court erred in granting CMS 's petition for a writ of mandamus under the
circumstances of this case. Therefore, the Court of Appeals is affirmed in part and
reversed in part, and the case is remanded to the trial court for further proceedings
consistent with this opinion.
22 Cost Mgmt. Servs., Inc. v. City of Lakewood, et al. No. 87964-8
WE CONCUR:
~ fir~;;