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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wilkerson v. State, Dept of Health and Social Service (12/17/99) sp-5216

Wilkerson v. State, Dept of Health and Social Service (12/17/99) sp-5216

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.


                              )    Supreme Court No. S-8652
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-97-5466 CI
DIVISION OF FAMILY AND YOUTH  )    [No. 5216 - December 17, 1999]
SERVICES,                     )
             Appellee.        )

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                 Sigurd E. Murphy, Judge pro tem.

          Appearances:  Dan S. Bair, Law Offices of Dan
S. Bair, Anchorage, for Appellant.  Jan Hart DeYoung, Assistant
Attorney General, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.  

          Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.  

          EASTAUGH, Justice.

          A state regulation automatically denies a foster care
license to any applicant charged with a "serious offense"within
the last ten years, whether or not the charge resulted in a
conviction.  The Alaska Division of Family and Youth Services
denied William Wilkerson's application because he had been charged
with serious offenses.  We hold that the regulation does not
violate Wilkerson's rights of equal protection or due process
because it is an efficient means of eliminating applicants who pose
a potential risk to foster children; the state's compelling
interest in the welfare of its foster children greatly outweighs
any property interest the applicant might have. 
          In May 1996, and again in September 1996, William
Wilkerson applied to the Alaska Division of Family and Youth
Services (DFYS) for a child foster care license.  DFYS's routine
investigation revealed that Wilkerson had been charged with
committing crimes.  The charges were for various offenses:
disorderly conduct (1981), assault (1984 and 1988), property damage
(1984), a weapons offense (1984), and the possession or sale of
dangerous drugs (1988, 1989, and 1993).  Wilkerson was convicted on
two of the charges, disorderly conduct and a weapons offense,
although the disorderly conduct conviction was later set aside. 
The remaining charges were dismissed without prosecution. 
          A regulation, 7 Alaska Administrative Code (AAC)
50.210(c)(5) (1999), requires DFYS to deny a foster care license to
an applicant who, within the past ten years, was 
          under indictment, charged by information or
complaint, or convicted of a misdemeanor crime of assault, reckless
endangerment, misconduct involving a controlled substance, or
perjury, as defined in AS 11 or the laws of another jurisdiction .
. . [or] at any time, under indictment, charged by information or
complaint, or convicted of a serious offense, as defined in AS
12.62.900.[ [Fn. 1]]
Four of Wilkerson's charges, but none of his convictions, occurred
within ten years of his application.  Applying 7 AAC 50.210(c)(5),
DFYS denied Wilkerson's application.
          DFYS gave four additional reasons for denying Wilkerson's
application: (1) his prior charges and convictions; (2) his pattern
of involvement with known drug users and dealers; (3) his failure
to provide complete and accurate information regarding his criminal
history in his license application; and (4) reports that he might
have physically abused his five-year-old son. 
          Wilkerson, appearing pro se, appealed the denial to the
Department of Health and Social Services (DHSS).  He argued that he
did not give false information on his application and that denying
his application on the basis of dismissed charges violated his
right to due process.  The hearing officer concluded that he did
not have jurisdiction to hear Wilkerson's constitutional challenge. 
But because the parties did not dispute that Wilkerson did not meet
the requirements of 7 AAC 50.210(c)(5), the hearing officer granted
summary judgment to DFYS on that basis alone.  The hearing officer
did not reach DFYS's other bases for denial.  The DHSS commissioner
then adopted the hearing officer's decision in its entirety. 
          Wilkerson appealed pro se to the superior court.  He
again asserted the unconstitutionality of 7 AAC 50.210(c)(5) under
the equal protection and due process clauses.  The superior court
concluded that Wilkerson had waived his constitutional challenges
due to inadequate briefing, noting that he had "failed to provide
any citation of legal authority or legislative history and his
argument is cursory and undeveloped." The court therefore affirmed
DFYS's denial of Wilkerson's application.
          Wilkerson, now represented by counsel, appeals.
     A.   Standard of Review
          We apply our independent judgment when reviewing an
intermediate appellate court's finding of waiver due to inadequate
briefing. [Fn. 2]
          Wilkerson's constitutional challenges to 7 AAC
50.210(c)(5) raise questions of law, [Fn. 3] which we review de
novo, adopting "the rule of law that is most persuasive in light of
precedent, reason, and policy."[Fn. 4] 
     B.   Wilkerson Did Not Waive His Constitutional Challenges. 
          The state argues that Wilkerson failed to preserve his
constitutional challenges in the superior court by briefing them
inadequately.  When reviewing agency decisions, the superior court
sits as an intermediate court of appeal and applies the Alaska
Rules of Appellate Procedure. [Fn. 5]  Appellate Rule 212(c)(1)[i]
requires that the argument portion of the appellant's brief
"contain the contentions of the appellant . . . and the reasons
therefor, with citations to the authorities, statutes and parts of
the record relied on." Accordingly, we have held that superficial
briefing and failing to cite any authority constitute abandonment
of a point on appeal. [Fn. 6]
          Wilkerson's superior court brief presented only
conclusory arguments that applying 7 AAC 50.210(c)(5) would deny
him his rights to equal protection and due process of the law.  It
failed to identify or apply the tests the courts use in reviewing
the constitutionality of laws under those provisions.  The state
argues that these omissions are fatal.  
          Wilkerson excuses his omissions by arguing that, because
the issue is one of first impression, "[t]he usual avenues of legal
research within the reasonable grasp of a pro se litigant . . .
were not helpful to [him]." That Wilkerson proceeded pro se did
not relieve him of the obligation to brief the issues he raised.
[Fn. 7]  Nevertheless, "we hold the pleadings of pro se litigants
'to less stringent standards than those of lawyers.'"[Fn. 8]  
          The essence of Wilkerson's argument was easily discerned
from his briefs: "because the charges against him were dismissed,
denying his license application on the basis of those dismissed
charges unfairly and unjustly deprives [him] of his rights." He
also clearly identified the equal protection and due process rights
on which he based his argument.  He reiterated his challenges in
oral argument before the superior court.  Wilkerson's failure to
identify and apply the precise legal tests for determining a
violation of those constitutional provisions is not fatal; those
tests are well established and could have been easily applied by
the superior court.  At the least, any confusion regarding
Wilkerson's challenge could have been clarified by the superior
court or the state at oral argument.
          Moreover, the state would not have been prejudiced had
the court considered Wilkerson's constitutional challenges.
Wilkerson did not ask the court to consider a multitude of
inadequately briefed issues or bury the issues amongst others.  The
parties did not dispute the underlying facts.  The state could have
easily addressed the two constitutional issues.  At oral argument
before the superior court, the state responded substantively to
Wilkerson's constitutional arguments.
          We therefore conclude that Wilkerson adequately preserved
his constitutional challenges, and that the superior court should
not have dismissed them for inadequate briefing.  Because his
appeal presents pure questions of law and the underlying facts are
undisputed, we will address his constitutional challenges on the
merits rather than remand them for consideration by the superior
          The state does not argue that Wilkerson's constitutional
issues are mooted on a theory that there are alternative grounds
for disqualifying Wilkerson.  We decline to raise mootness sua
sponte and to affirm on that ground here, because the record does
not establish that the hearing officer would have disqualified
Wilkerson on unconsidered, alternative grounds.  And because it is
likely that the issue will recur, we will proceed to the merits. 
     B.   The Regulation Does Not Violate the Equal Protection
Clause of the Alaska Constitution.

          Wilkerson claims that 7 AAC 50.210(c)(5) arbitrarily
distinguishes between applicants charged with crimes but not
convicted and applicants not charged with crimes. [Fn. 9]
          Article I, section 1 of the Alaska Constitution provides
in part that "all persons are equal and entitled to equal rights,
opportunities, and protection under the law."[Fn. 10]  We have
interpreted this language to require a "sliding scale of review"
rather than the tiered approach of federal equal protection
analysis. [Fn. 11]  In applying the sliding scale approach, we have
noted that the Alaska Constitution "often affords greater
protection to individual rights than that provided by the federal
constitution."[Fn. 12]  
          Under the sliding scale approach: 
          [W]e first determine the importance of the
individual interest impaired by the challenged enactment.  We then
examine the importance of the state interest underlying the
enactment, that is, the purpose of the enactment.  Depending upon
the importance of the individual interest, the equal protection
clause requires that the state's interest fall somewhere on a
continuum from mere legitimacy to a compelling interest.  Finally,
we examine the nexus between the state interest and the state's
means of furthering that interest.  Again depending upon the
importance of the individual interest, the equal protection clause
requires that the nexus fall somewhere on a continuum from
substantial relationship to least restrictive means.[ [Fn. 13]] 

          1.   What is the nature of an individual's interest in a
foster care license?

          Because a foster parent receives a state stipend,
Wilkerson claims that his interest in a foster care license is in
pursuing an "economic endeavor."[Fn. 14]  We have recognized that
pursuit of an economic endeavor is an important right which the
government may impair only if its interest is important and there
is a close nexus between that interest and the legislation. [Fn.
          The state argues that "foster care is not an occupation."
In support, it notes that a foster parent is not a state employee
and may be otherwise employed.  It acknowledges that foster parents
receive a state stipend, but argues that it is "calculated to cover
only the expenses the foster parent must incur to provide
'protection, emotional support, and care of the child.'" 
          The state's arguments are persuasive.  Payment is
triggered by the child's presence in the foster home, not by an
individual's status as a foster parent. [Fn. 16]  As a result, a
foster parent cannot know with certainty how much he or she will
receive in a given year. [Fn. 17]  Although foster care payments
supplement household income, they are not intended to be a source
of income to provide foster parents with the basic necessities of
life. [Fn. 18]  The stipend is calculated by the state to do no
more than cover the foster child's own costs; the standard rate for
child foster care is $21.48 per day or $7,840 per year. [Fn. 19] 
The stipend is intended to provide economic benefits only for the
foster child, but not the foster parent.  Indeed, it would be
worrisome to think that an applicant for a foster parent license
would be motivated by personal economic gain.  
          These facts distinguish this case from cases like
Laborers Local No. 942 v. Lampkin. [Fn. 20]  At issue there was a
project labor agreement which was challenged as violating the equal
protection rights of non-union workers in the construction field.
[Fn. 21]  The non-union workers claimed that the agreement impaired
their ability to engage in an economic endeavor.  Based on that
assumption, they claimed we were required to determine whether the
government's interest in the project labor agreement was
"important"and whether the nexus between that interest and the
project labor agreement was "close."[Fn. 22]  Unlike foster care,
construction work is a source of sustaining income.  Thus, an
individual's right to work in the industry is an important one.
          At most, an individual's interest in a foster care
license is merely economic, entitled to minimal protection under
our equal protection analysis. [Fn. 23]  And this interest is
marginal because an applicant for a foster parent license has no
legitimate economic interest in holding a license.
          2.   Does the regulation have a legitimate purpose?

          Because the challenged regulation is subject to minimum
scrutiny, the state only needs to show that the regulation was
designed to achieve a legitimate government objective. [Fn. 24] 
Both parties agree that the objective of the regulation is to
protect foster children and to ensure the provision of quality care
for them.  At the same time, the state has an interest in
efficiently selecting caregivers for Alaska's foster children. [Fn.
25]  DHSS has concluded that those persons who may have engaged in
criminal behavior are unable to provide a positive role model and
may present a risk of harm to children in their care. [Fn. 26]  The
protection of minors is a compelling interest, [Fn. 27] and
efficiency is a legitimate interest. [Fn. 28] 
          3.   Does the distinction the regulation draws bear a
fair and substantial relationship to the regulation's purpose?

          Because an individual's interest in a foster care license
is only entitled to minimal protection, to satisfy equal protection
the state need only show that the regulation's classification bears
a fair and substantial relationship to the regulation's objective.
[Fn. 29]  Resolving this issue depends on whether a criminal charge
absent conviction has any relevant meaning.  Will a person charged
but not convicted necessarily be less likely to be a suitable
foster parent?  
          Although the "fair and substantial"standard demands that
the fact of a criminal charge have some significance, it does not
require a perfect fit between a legislative classification and the
government objective it is intended to further. [Fn. 30]  A
criminal charge does not have to be meaningful in all cases, or
even suggest a probability that a particular applicant will engage
in harmful behavior.  
          Wilkerson argues that a criminal filing does not
establish the truth of the criminal charge; it is merely an ex
parte determination that "probable cause"exists on the evidence
presented.  As a result, Wilkerson contends that the regulation
"sweep[s] too broadly,"eliminating from the applicant pool
innocent criminal defendants who might otherwise meet the foster
parent licensing requirements.  
          The state essentially argues that charging a person with
a crime requires some evidence supporting the charge.  A criminal
complaint or information must be supported by "probable cause." A
grand jury may indict "upon sufficient evidence."[Fn. 31]  That is
evidence that if unexplained or uncontradicted, is adequate to
persuade reasonable jurors or a judge to convict a person of the
offense charged. [Fn. 32]  The indictment indicates that there is
evidence sufficient to establish a probability of guilt. [Fn. 33] 
Given the importance of protecting foster children, the state
contends that it is entitled to rely on "probable cause"when
determining who should become foster parents.  The state implies
that the broad sweep of the regulation is necessary to ensure that
foster children are not exposed to persons who have committed
crimes but were not convicted.  
          We agree with the state's argument.  A rule of automatic
denial based on the existence of a criminal charge filed in
compliance with applicable law is an efficient means of eliminating
applicants as to whom there is some reason to believe they engaged
in criminal behavior in the past and might therefore pose a risk of
harm to foster children.  Given the importance of the state's
interest in protecting foster children, and the minimal economic
interest that Wilkerson has in becoming a foster parent, equal
protection does not require a more narrowly tailored regulation. 
     C.   The Regulation Does Not Violate the Due Process Clause of
the Alaska Constitution.

          Wilkerson claims that the regulation violates substantive
due process because it precludes an impartial review of the facts
alleged in an ex parte indictment, information or complaint. 
Wilkerson's substantive due process claim overlaps his equal
protection claim.  But substantive due process requires less of a
nexus between the challenged regulation and its objective than does
equal protection.  "Substantive due process is denied when a
legislative enactment has no reasonable relationship to a
legitimate governmental purpose."[Fn. 34]  Thus, for the reasons
stated above in the discussion of Wilkerson's equal protection
claim, we conclude that the regulation does not violate substantive
due process.
          Wilkerson also suggests that the state denied him
procedural due process by not providing an opportunity to be heard
regarding his criminal record.  When determining the requirements
of due process, we look to the test enunciated by the United States
Supreme Court in Mathews v. Eldridge: [Fn. 35]
          [O]ur prior decisions indicate that
identification of the specific dictates of due process generally
requires consideration of three distinct factors: First, the
private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and, finally, the
Government's interest, including the function involved and the
fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.[ [Fn. 36]]

          The Mathews factors indicate no procedural due process
violation here.  As seen above, the private interest affected is
minimal. [Fn. 37]  The risk of an erroneous deprivation is high;
automatic denial means that the application of even an innocent
criminal defendant will be rejected.  A hearing would give the
applicant an opportunity to explain the charges against him or her
and why they were dismissed.  But requiring a hearing would impose
a significant administrative and fiscal burden on state government. 
DFYS would have to inquire into the circumstances of each criminal
charge, determine its importance, and potentially defend its
decision at a hearing.  We cannot justify this burden on the
government given the minimal importance of the individual interest
          We reject Wilkerson's equal protection and due process
challenges to 7 AAC 50.210(C)(5) and AS 47.35.130(a)(2)(A) and
therefore AFFIRM the superior court's judgment.


Footnote 1:

     AS 12.62.900 states in relevant part:

          (23) "serious offense"means a conviction for
a violation or for an attempt, solicitation, or conspiracy to
commit a violation of any of the following laws, or of the laws of
another jurisdiction with substantially similar elements:
               (A)  a felony offense;
               (B)  a crime involving domestic violence;
               (C)  AS 11.41.410 - 11.41.470;
               (D)  AS 11.51.130;
               (E)  AS 11.61.110(a)(7) or 11.61.125;
               (F)  AS 11.66.100 - 11.66.130; or
               (G)  former AS 11.15.120, former
11.15.134, or assault with the intent to commit rape under former
AS 11.15.160; 
               (H)  former AS 11.40.080, 11.40.110,
11.40.130, or 11.40.200 - 11.40.420, if committed before January 1,

Footnote 2:

     See Cameron v. Hughes, 825 P.2d 882, 884 n.2 (Alaska 1992)
(applying de novo standard of review to trial court's
interpretation of appellate rule). 

Footnote 3:

     See Keane v. Local Boundary Comm'n, 893 P.2d 1239, 1241
(Alaska 1995) (noting constitutional issues present questions of

Footnote 4:

     Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

Footnote 5:

     See Alaska R. App. P. 601(b), (c).  See also Alaska R. App. P.
605(a)(3) (applying substantive requirements of Rule 212(c) to
appeals from administrative agencies to superior court).

Footnote 6:

     See, e.g., Kodiak Elec. Ass'n, Inc. v. DeLaval Turbine, Inc.,
694 P.2d 150, 153 n.4 (Alaska 1984); State v. O'Neill
Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980); Wernberg v.
Matanuska Elec. Ass'n, 494 P.2d 790, 794 (Alaska 1972); Lewis v.
State, 469 P.2d 689, 691 n.2 (Alaska 1970). 

Footnote 7:

     See, e.g., A.H. v. W.P., 896 P.2d 240, 243-44 (Alaska 1995)
(waiving for inadequate briefing majority of fifty-six arguments
raised by pro se appellant).

Footnote 8:

     Wright v. Shorten, 964 P.2d 441, 444 (Alaska 1998) (quoting
Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987)).  

Footnote 9:

     Wilkerson's brief attacks the constitutionality of the
regulation and its authorizing statute, AS 47.35.130(a)(2)(A) and 
(B).  Because the regulation creates the classification Wilkerson
complains of and applies it to new applicants for a foster care
license, we focus our analysis on the regulation.  We need not
address the constitutionality of the statute unless we determine
that the regulation is unconstitutional.

Footnote 10:

     On appeal, Wilkerson's equal protection and due process
challenges rely exclusively on the Alaska Constitution.  He does
not invoke the federal constitution.

Footnote 11:

     See State v. Ostrosky, 667 P.2d 1184, 1192-93 (Alaska 1983);
see also Alaska Pac. Assurance Co. v. Brown, 687 P.2d 264, 269-70
(Alaska 1984). 

Footnote 12:

     Laborers Local No. 942 v. Lampkin, 956 P.2d 422, 429 (Alaska
1998); see also Williams v. State, Dep't of Revenue, 895 P.2d 99,
103 (Alaska 1995).

Footnote 13:

     State, Dep't of Transp. & Labor v. Enserch Alaska Constr.,
Inc., 787 P.2d 624, 631-32 (Alaska 1989) (citations omitted).

Footnote 14:

     Wilkerson does not argue that the denial of a foster care
license implicates associational or family rights, or a liberty
interest.  We do not decide here whether a current foster care
licensee or a current licensee with a long-term relationship with
a foster child could assert those rights or interest.  Wilkerson
was an applicant for a new license.

Footnote 15:

     See Laborers Local, 956 P.2d at 430 (citing Enserch, 787 P.2d
at 633).

Footnote 16:

     See 7 AAC 53.080.

Footnote 17:

     Cf. State v. Anthony, 810 P.2d 155, 158 (Alaska 1991) (holding
one has only minimal economic interest in permanent fund dividend
given lack of certainty regarding amount of dividend).

Footnote 18:

     Cf. id. (holding an individual's economic interest in dividend
is subject to minimal protection because permanent fund dividend is
"not, generally, a source of income that individuals depend on to
supply the basic necessities of life").

Footnote 19:

     See 7 AAC 53.030(b).  The stipend is also adjusted by
percentage for age and multiplied by a geographic cost-of-living
amount. [Fn. 38]  See id.

Footnote 20:

     956 P.2d 422.

Footnote 21:

     See id. at 429. 

Footnote 22:

     See id. at 430.

Footnote 23:

     See Church v. State, 973 P.2d 1125, 1128 (Alaska 1999)
(holding that permanent fund dividends are economic interests
entitled to minimum protection); Williams, 895 P.2d at 104 (holding
that workers' compensation benefits are economic interests entitled
to minimum protection).

Footnote 24:

     See Church, 973 P.2d at 1128.

Footnote 25:

     See AS 47.35.005(a) ("The purpose of this chapter is to
establish and maintain standard levels for services offered to
children in . . . foster homes . . . .  The . . . licensing
procedures in this chapter are intended to reduce predictable risk
of harm to children . . . .").

Footnote 26:

     See, e.g., 7 AAC 50.200(b) ("foster parent must be of good
character and reputation"); 7 AAC 50.210(a) (requiring foster
parent to "be a responsible individual of reputable character who
exercises sound judgment."); 7 AAC 50.210(k) ("A reference must
. . . attest to the [prospective foster parent's] ability to . . . 
act as a positive role model for children[.]").

Footnote 27:

     See, e.g., In re J.A., 962 P.2d 173, 177 (Alaska 1998); In re
D.D.S., 869 P.2d 160, 163 (Alaska 1994).

Footnote 28:

     See Williams, 895 P.2d at 104 (holding that efficient delivery
of indemnity and medical benefits to injured workers is "legitimate
goal"under equal protection analysis); Underwood v. State, 881
P.2d 322, 325 (Alaska 1994) (holding that improving efficiency of
permanent fund dividend program is legitimate goal under equal
protection analysis); cf. Commercial Fisheries Entry Comm'n v.
Apokedak, 606 P.2d 1255, 1266 (Alaska 1980) ("Although the purpose
of promoting administrative convenience is legitimate, it cannot
outweigh the important right to engage in an economic

Footnote 29:

     See Williams, 895 P.2d at 104; Chiropractors for Justice v.
State, 895 P.2d 962, 972 (Alaska 1995).

Footnote 30:

     See Anthony, 810 P.2d at 161 ("Every law that attempts to
allocate a benefit or burden contains some imperfection.");
Ostrosky, 667 P.2d at 1193 ("[A] greater degree of over/or
underinclusiveness in the means-to-ends fit will be tolerated"at
the lower end of the equal protection scale.); Apokedak, 606 P.2d
at 1267 ("[E]qual protection, even under Alaska's stricter
standard, does not demand perfection in classification.").

Footnote 31:

     AS 12.40.050.

Footnote 32:

     See State v. Parks, 437 P.2d 642, 644 (Alaska 1968); Alaska R.
Crim. P. 6(q) (stating that grand jury may indict "when all the
evidence taken together, if unexplained or uncontradicted, would
warrant a conviction of the defendant."). 

Footnote 33:

     See State v. Ladd, 951 P.2d 1220, 1222-23 (Alaska App. 1998). 

Footnote 34:

     Concerned Citizens of S. Kenai Peninsula v. Kenai Peninsula
Borough, 527 P.2d 447, 452 (Alaska 1974) (emphasis added).  See
also Williams, 895 P.2d at 102; Municipality of Anchorage v. Leigh,
823 P.2d 1241, 1244 (Alaska 1992).

Footnote 35:

     424 U.S. 319 (1976).  See also City of Homer v. State, Dep't
of Natural Resources, 566 P.2d 1314, 1319 (Alaska 1977) (looking to
Mathews v. Eldridge to determine whether administrative procedure
met requirements of due process).

Footnote 36:

     424 U.S. at 334-35.

Footnote 37:

     See supra Part III.B.1.  

Footnote 38:

     See 7 AAC 53.030(b).