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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Anderson v State Dept of Revenue, Permanent Fund Div (07/20/2001) sp-5434

Anderson v State Dept of Revenue, Permanent Fund Div (07/20/2001) sp-5434

     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.


             THE SUPREME COURT OF THE STATE OF ALASKA


DOUGLAS W. ANDERSON,          ) 
                              )    Supreme Court No. S-9418
               Appellant,     )    
                              )    Superior Court No.
     v.                       )    1JU-98-2494 CI
                              )
STATE OF ALASKA, DEPARTMENT   )    O P I N I O N
OF REVENUE, PERMANENT FUND    )
DIVIDEND DIVISION,            )
                              )    [No. 5434 - July 20, 2001]
               Appellee.      )    
______________________________)    


          Appeal from the Superior Court of the State of
Alaska, First Judicial District, Juneau,
                      Larry R. Weeks, Judge.


          Appearances: Anthony M. Sholty, Faulkner
          Banfield, P.C., Juneau, for Appellant. 
          Daniel N. Branch, Assistant Attorney General,
and Bruce M. Botelho, Attorney General, Juneau, for Appellee.


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


          PER CURIAM.


I.   INTRODUCTION
          Douglas Anderson and his son appeal from a decision
denying them their 1997 Permanent Fund Dividends.  Because the
record supports the department's finding that Anderson failed to
overcome the presumption of non-residency for those absent from the
state more than five years, the department's written decision was
adequate, and the department did not misinterpret its own
regulations, we affirm the superior court's decision.
II.  FACTS AND PROCEEDINGS
          Douglas Anderson is an active-duty Coast Guard officer. 
Although he grew up in Kenai and Soldotna, Anderson moved away from
Alaska in 1980 while still in high school.  After high school,
Anderson attended the United States Coast Guard Academy, where he
listed his home state of record as Missouri.  Anderson requested
assignment to Alaska following his graduation from the Coast Guard
Academy, but did not receive that assignment.  Following his first
tour of duty in Oregon, Anderson again requested assignment in
Alaska and was assigned to Ketchikan in 1988.  Anderson was
stationed in Ketchikan from 1988 to 1991.  
          While stationed in Ketchikan, Anderson and his family
established themselves as Alaska residents.  Anderson registered to
vote in Alaska, registered his vehicles in Alaska, and obtained an
Alaska driver's license. 
          Anderson left Alaska again in 1991 after the Coast Guard
assigned him to attend graduate school at the University of Oregon.
Following graduation in 1993, Anderson accepted a teaching position
at the Coast Guard Academy in Connecticut.  Although Anderson
listed an assignment in Alaska as his top priority in 1995, the
Coast Guard assigned him to a station in West Virginia.
          Anderson and his minor son applied for and received
permanent fund dividends (PFDs) from 1992 through 1996.  Anderson
has never relinquished his "paper ties" to Alaska -- he is still
registered to vote, holds an Alaska driver's license, owns no real
property in another state, and pays no state residence taxes in
West Virginia.  Between 1991 and 1997 Anderson, accompanied by his
wife and son, made three trips to Alaska and spent a total of seven
days in state.  Over the same six years, Anderson accumulated 205
days of personal leave time.  Anderson exercised his right to vote
absentee in Alaska once during his period of absence.
          Anderson and his son applied for 1997 dividends.  The
department denied Anderson's application, finding that he had not
overcome the presumption of non-residency under 15 Alaska
Administrative Code (AAC) 23.163 (1997).  The department therefore
denied Anderson's son's application because he had no eligible
sponsor. 
          Anderson requested both an informal and formal appeal. 
At both levels, the department affirmed the denial, finding that
Anderson had not overcome the presumption of non-residency.  In its
decisions, the department principally relied on evidence of
Anderson's infrequent and short-duration return trips to Alaska
during his absence, his short period of adult residency in Alaska
as compared with his period of absence, and his career choice which
resulted in an inability to control his residency.
          Anderson appealed to the superior court.  Superior Court
Judge Larry R. Weeks found substantial evidence in the record to
support the department's decision and therefore affirmed.  Anderson
appeals.
III. DISCUSSION
     A.   Standard of Review
          We give no weight to the superior court's decision when
it sits as an intermediate appellate court. [Fn. 1]  We review
challenges to the adequacy of the evidence to support a
department's findings of fact using the substantial evidence test.
[Fn. 2]  Under that test, we will affirm the department's decision
if we find "'such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.'" [Fn. 3]  We will not
reweigh evidence, but only review the record to ensure that
substantial evidence existed to support the decision. [Fn. 4]  When
an agency chooses between two conflicting determinations and there
is substantial evidence in the record to support either conclusion,
we will affirm the agency's finding. [Fn. 5]
          We apply a substitution of judgment standard to issues of
law not within an agency's expertise -- like statutory
interpretation. [Fn. 6]  However, we do "'not substitute [our]
judgment for that of the agency with respect to the efficacy of [a]
regulation nor review the wisdom of a particular regulation.'" [Fn.
7]  
          In reviewing challenges to an agency's interpretation of
its own regulation, we use the "reasonable and not arbitrary" test.
[Fn. 8]  We will affirm the agency's interpretation under this
deferential standard if the agency's interpretation is a reasonable
one. [Fn. 9]
     B.   Substantial Evidence Supports the Department's Decision.

          Anderson challenges the department's finding that he did
not overcome the presumption of non-residency in 1997 -- that he
lacked an intent to return and permanently remain in Alaska. [Fn.
10]  The PFD eligibility regulations established a presumption
against eligibility for people absent from Alaska more than five
years. [Fn. 11]  Those regulations required that the department
consider six factors to determine whether an individual has
rebutted the presumption of ineligibility, including:
               (1)  the length of an individual's absence
          compared to the time the individual spent in Alaska
          before departing on the absence;
               (2)  the frequency and duration of return
          trips to Alaska during the absence; the fact that the
          individual has returned to Alaska in order to meet the
          physical presence requirement of AS 43.23.005(a)(4) is
          not sufficient in itself to rebut the presumption of
          ineligibility;
               (3)  whether the individual's intent to return
          or remain is conditioned upon future events beyond the
          individual's control, such as economics or finding a job
          in Alaska;
               (4)  any ties the individual has established
          outside Alaska, such as maintenance of homes, payment of
          resident taxes, vehicle registrations, voter
          registration, driver's licenses, or receipt of benefits
          under a claim of residency in another state;
               (5)  the priority the individual gave Alaska
          on an employment assignment preference list, such as
          those used by military personnel; and
               (6)  whether the individual made a career
          choice or chose a career path that does not allow the
          individual to reside in Alaska or return to Alaska.[ [Fn.
          12]]
     The department found that Anderson had not prevailed on a majority
of the six factors, and denied his application.
          We applied the substantial evidence test in the PFD
context in State, Department of Revenue, Permanent Fund Dividend
Division v. Wilder. [Fn. 13]  In that case, Wilder -- a military
officer -- challenged the department's decision that he failed to
overcome the presumption of non-residency for five-year absences
under 15 AAC 23.163(f). [Fn. 14]  We held that the department
properly discounted "paper ties" to Alaska; correctly placed
significance on the fact that Wilder had returned only once to
Alaska during his absence; and appropriately relied on Wilder's
failure to request reassignment to Alaska. [Fn. 15]  We stated that
the department could properly consider "whether the individual made
a career choice or chose a career path that does not allow the
individual to reside in Alaska or return to Alaska," [Fn. 16] and
that "[w]ithout minimizing the unique nature and special demands of
a career in the military, we conclude that Wilder has made a
choice, and that choice is inconsistent with an intent 'at all
times' to return to Alaska." [Fn. 17]  Considering the evidence in
the record, we held that substantial evidence supported the
department's decision, even where "competing inferences [could] be
drawn from the testimony." [Fn. 18]
          Anderson's case is similar to Wilder in some of the
underlying facts, but ultimately proves to be a much closer
question.  Like Wilder, Anderson is a military officer; has been
absent from Alaska more than five years; and has maintained his
paper ties to Alaska.  Unlike Wilder, Anderson has requested
assignment to Alaska for each tour of duty; has returned to Alaska
for three brief visits during his absence; and has been assigned to
Alaska once on active military duty.  But, even with the more
favorable evidence of Anderson's intent to return, there is
substantial evidence to support the department's finding that
Anderson failed to rebut the presumption of non-residency.
          1.   Substantial evidence to support denial
          The department principally relied on three factors when
it denied Anderson's application: (1) the short period of
Anderson's adult residency in Alaska as compared to his length of
absence; (2) Anderson's career choice and his resulting lack of
control with respect to residency; and (3) the infrequent and short
duration of the return visits Anderson made to Alaska during his
absence.  Given this evidence, and the regulation requiring the
department to give greater weight to the claims of individuals who
make frequent, non-compulsory return visits to Alaska, [Fn. 19] the
department found that Anderson had not overcome the presumption of
non-residency.
          After reviewing the evidence in the record, we hold that
there was sufficient evidence to support the conclusion that
Anderson failed to overcome the presumption of non-residency.  That 
evidence includes Anderson's infrequent and short-duration return
visits, his choice to use only a small percentage of his leave time
visiting Alaska, his inability to control his residency, his choice
to vote absentee in Alaska elections only once during his absence,
his decision to accept a transfer to the East Coast knowing that
this would lessen his chances of an Alaska assignment, and his
short duration of adult residency compared to his time of absence. 
          2.   Substantial evidence to support approval
          Anderson asserts that there was substantial evidence to
find that he overcame the presumption of non-residency.  Anderson
may be correct on this point.  As noted above, Anderson presented
evidence that he has always maintained his "paper ties" to Alaska;
did not establish any ties to other states; always listed an Alaska
assignment as his first choice for his job preference; consistently
expressed a subjective intent to return; and made the statutory
minimum return trips to Alaska.  The combination of this evidence
and reasonable inferences arising from it could support a finding
that Anderson overcame the presumption of non-residency.  But, as
noted above, we are obligated to affirm the decision of an agency
where it chooses between two alternatives, both of which are
supported by substantial evidence. [Fn. 20]  Accordingly, the
existence of substantial evidence to support Anderson's position
does not in itself permit us to reverse the department's decision.
     C.   The Department Produced an Adequate Written Decision.
          Anderson also challenges the adequacy of the department's
final written decision.  Specifically, Anderson alleges that the
department "fail[ed] to consider each of the [relevant] factors" in
15 AAC 23.163(g), and "fail[ed] in its decisional document to
provide an adequate explanation for its decision."  We consider
each allegation in turn.
          1.   The department did not fail to consider evidence.
          Anderson's first argument insists that the department
failed to consider relevant evidence.  By this he means that the
department both totally failed to consider evidence and discounted
evidence favoring his position when it drew inferences he believes
were unwarranted.  The substantial evidence standard of review
prohibits this court from entertaining Anderson's second avenue of
challenge. [Fn. 21]  His first is without merit.
          Anderson cites three cases to support his position:
Southeast Alaska Conservation Council, Inc. v. State, [Fn. 22]
Kuitsarak Corp. v. Swope, [Fn. 23] and Ninilchik Traditional
Council v. Noah. [Fn. 24] However, these cases establish nothing
more than the department's obligation to carefully consider the
evidence before it and provide a thorough written decision
addressing each important issue.
          In Anderson's case, at each level of department review --
initial application review, informal hearing, and formal hearing --
the department considered all the evidence presented and made
thorough findings of fact.  The department also noted the evidence
that supported Anderson's claim in each document it issued. 
Viewing the record as a whole, [Fn. 25] it is clear that the
department considered each piece of evidence Anderson insists was
ignored.  
          2.   The department is not required to provide a written
response to each piece of evidence.

          Anderson charges that the department's findings of fact
were inadequate because they did not specifically respond to each
piece of favorable evidence he produced.  Alaska law offers no
support for this proposition.
          The legislature's statutory mandate to the department
with respect to dividend appeals decisions simply states:  "Within
12 months after the administrative appeal is filed, the department
shall provide the individual with a final written decision." [Fn.
26]  The legislature could have provided for more stringent
requirements in the written decision, as it has in other contexts,
[Fn. 27] but it did not.
          The department's regulatory requirements for its own
written decisions demand no more specificity.  The department's
regulation regarding informal appeal decisions states: 
               After considering the facts, information, and
          arguments presented at the informal conference, the
          appeals officer shall promptly render a written decision. 
          The decision must identify the issues in controversy for
          purposes of further appeal.[ [Fn. 28]] 
     And the formal decision must "contain[] the hearing officer's
findings of fact and conclusions of law." [Fn. 29]  Neither
regulation requires that the hearing officer respond in writing to
each piece of evidence.
          Finally, nothing in this court's case law imposes a duty
on an agency of responding in writing to each piece of evidence
presented by an appellant.  This court has only stated that an
agency's decisional documents must reflect the reasoning of the
agency. [Fn. 30]  
          Alaska's statutes, applicable regulations, and case law
do not require the department to respond in writing to each piece
of evidence presented by Anderson.  Because the department clearly
expressed its reasons for denying Anderson's application in the
informal and formal appeals documents, we hold that the
department's written decisions were adequate.
     D.   The Department Did Not Misinterpret Its Regulations.
          Anderson charges that the department erred in
interpreting its eligibility regulation -- 15 AAC 23.163 --  by
giving more weight to certain regulatory factors than others in
ruling against him.  While it is probably the case that the
department did give more weight to certain factors than others, we
conclude that the department has that discretion.  
          The regulation previously required the department to
"consider the following factors" [Fn. 31] and now specifically
states that "the department will consider one or more of the
following factors, as applicable." [Fn. 32]  The regulation has
never required the department to evenly weigh each factor. 
Furthermore, it is difficult to conceive of a set of objective
factors that, when weighted evenly, can determine such a subjective
state of mind as an intent to return and permanently remain in
Alaska.  The regulation also formerly stated that "the department
will give greater weight to the claim of an individual who makes
frequent return trips to Alaska for noncompulsory reasons" [Fn. 33]
and now requires the department to "give greater weight to the
claim of an individual who makes frequent voluntary return trips to
Alaska." [Fn. 34]  This mandate has required the department to
carefully scrutinize an applicant's pattern of return visits to
Alaska -- a factor the department weighed heavily against Anderson
-- and give that factor greater weight when it applies.  Finally,
in Wilder we approved of the department's decision to use its
discretion in weighing the same regulatory factors, and we declined
to perform this role as an appellate tribunal. [Fn. 35]
          Given the regulation's explicit language allowing the
department to use its discretion in weighing the regulation's six
listed factors, its mandate regarding consideration of the
frequency and duration of return visits, and this court's decision
in Wilder, the department did not arbitrarily interpret its own
regulation by giving more weight to some regulatory factors of
15 AAC 23.163(g). 
IV.  CONCLUSION
          There is substantial evidence in the record to support
the finding that Anderson did not overcome the presumption of non-
residency.  The department issued an adequate written decision. 
And the department did not misinterpret its regulations. 
Therefore, the decision of the superior court is AFFIRMED.                                 


                            FOOTNOTES


Footnote 1:

     See State, Dep't of Revenue, Permanent Fund Dividend Div. v.
Wilder, 929 P.2d 1280, 1281 (Alaska 1997).


Footnote 2:

     See id. at 1281-82.


Footnote 3:

     Tinker v. Veco, Inc., 913 P.2d 488, 492 (Alaska 1996) (quoting
Fireman's Fund Am. Ins. Cos. v. Gomes, 544 P.2d 1013, 1015 (Alaska
1976)).


Footnote 4:

     See Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233
(Alaska 1992). 


Footnote 5:

     See Brown v. State, Alaska Workers' Compensation Bd., 931 P.2d
421, 424 (Alaska 1997).


Footnote 6:

     See Church v. State, Dep't of Revenue, 973 P.2d 1125, 1127
(Alaska 1999).


Footnote 7:

     Id. (quoting State, Dep't of Revenue v. Cosio, 858 P.2d 621,
624 (Alaska 1993) (internal quotation omitted)).


Footnote 8:

     Handley, 838 P.2d at 1233.


Footnote 9:

     See id.


Footnote 10:

     Former AS 43.23.095(8) (1997) established the "intent to
return" requirement for eligible residents absent from the state. 


Footnote 11:

     See 15 Alaska Administrative Code (AAC) 23.163(f) (am.
4/18/97) ("An individual whose absence or combination of absences
under . . . this section totaling more than five years is presumed
not to have the intent to return to Alaska and remain permanently
in Alaska.").


Footnote 12:

     15 AAC 23.163(g)(1)-(6) (am. 4/18/97).


Footnote 13:

     929 P.2d 1280 (Alaska 1997).


Footnote 14:

     See id. at 1282.


Footnote 15:

     See id. at 1282-83.


Footnote 16:

     Id. at 1283.


Footnote 17:

     Id.


Footnote 18:

     Id.


Footnote 19:

     See 15 AAC 23.163(h) (1997).


Footnote 20:

     See Brown v. State, Alaska Workers' Compensation Bd., 931 P.2d
421, 424 (Alaska 1997).


Footnote 21:

     See Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233
(Alaska 1992).


Footnote 22:

     665 P.2d 544 (Alaska 1983).


Footnote 23:

     870 P.2d 387 (Alaska 1994).


Footnote 24:

     928 P.2d 1206 (Alaska 1996).


Footnote 25:

     See AS 43.23.015(g) (authorizing judicial review of PFD
appeals); AS 44.62.560(c) (listing all written evidence and
documents as part of the complete record).


Footnote 26:

     AS 43.23.015(g).


Footnote 27:

     See, e.g., AS 19.10.170 ("The determination of the
commissioner shall be supported by findings of fact which shall set
out enough facts and circumstances to clearly justify the
determination.").


Footnote 28:

     15 AAC 05.020(b) (1997).


Footnote 29:

     15 AAC 05.030(i) (1989).


Footnote 30:

     See Messerli v. State, Dep't of Natural Resources, 768 P.2d
1112, 1118 (Alaska 1989).


Footnote 31:

     15 AAC 23.163(g) (am. 4/18/97).


Footnote 32:

     15 AAC 23.163(g) (am. 1/1/99).


Footnote 33:

     15 AAC 23.163(h) (am. 4/18/97).


Footnote 34:

     15 AAC 23.163(h) (1999).


Footnote 35:

     See 929 P.2d 1280, 1282-83 (Alaska 1997).

In the Supreme Court of the State of Alaska

Douglas W. Anderson,            )
                                )        Supreme Court No. S-09418
                                   Appellant,   )
                   v.           )                 Order
                                )                     
State of Alaska, Department of Revenue,)             
Permanent Fund Dividend Division,               )
                                )                           
                                   Appellee.    ) Date of Order: 7/20/01
Trial Court Case # 1JU-98-02494CI

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

     On consideration of the motion to publish the memorandum opinion and judgment
No. 1023, issued on May 2, 2001,

     It is Ordered:

     1.   The motion to publish is Granted.

     2.   Memorandum Opinion and Judgment No. 1023, issued on May 2, 2001, is
Withdrawn, and Opinion No. 5434 is Issued in its place.

     Entered by direction of the court.

                                   Clerk of the Appellate Courts


                                                                                                    
                                   Marilyn May
cc:  Supreme Court Justices
     Trial Court Judge
     Trial Court Appeals Clerk
     Publishers

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