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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alvarez v Ketchikan Gateway Borough (08/17/2001) sp-5452

Alvarez v Ketchikan Gateway Borough (08/17/2001) sp-5452

     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
                                 

SONJA ALVAREZ,                )
                              )    Supreme Court No. S-9030
             Appellant,       )
                              )    Superior Court No.
     v.                       )    1KE-97-182 CI
                              )
KETCHIKAN GATEWAY BOROUGH,    )    O P I N I O N
                              )
             Appellee.        )    [No. 5452 - August 17, 2001]
______________________________)




          Appeal from the Superior Court of the State of
Alaska, First Judicial District, Ketchikan,
                     Thomas M. Jahnke, Judge.


          Appearances:  Sonja Alvarez, pro se,
          Ketchikan, Appellant.  Scott A. Brandt-
          Erichsen, Borough Attorney, Ketchikan, for
Appellee.


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


          FABE, Chief Justice.


I.   INTRODUCTION
          Sonja Alvarez appealed the 1997 property tax assessment
for three of her properties to the Ketchikan Gateway Borough Board
of Equalization.  The Board affirmed the assessments, and Alvarez
appealed to the superior court, which affirmed the decision of the
Board.  Alvarez has appealed various aspects of the superior
court's decision.  For the reasons stated below, we affirm.
II.  FACTS AND PROCEEDINGS
          Sonja Alvarez owns three parcels of property in
Ketchikan: two adjacent unimproved lots (lots A and B) [Fn. 1], and
her residential property including a house and another building
located at 124 Nadeau Street.  In 1997 the Ketchikan Gateway
Borough Assessor assessed these properties for tax purposes at the
following values: lot A, $30,000; lot B, $30,600; the residential
property, $196,600.
          Alvarez appealed these assessments to the Ketchikan
Gateway Borough Board of Equalization. [Fn. 2]  On April 14, 1997,
the Board held separate hearings for each of the three parcels,
and, after hearing from both Alvarez and the borough assessor, the
Board affirmed each of the 1997 assessments.
          As for lots A and B, the Board considered these
assessments as, respectively, Appeal No. 424 (lot A) and Appeal No.
425 (lot B).  Even though there were separate hearings for the two
lots, the arguments made by the parties were the same for both. 
Alvarez claimed that the market value (and therefore, the value for
tax assessment) of the two lots together was $50,000 because that
was the best offer that she received to buy them when she had them
on the market for sale.  The borough assessor, on the other hand,
argued that Alvarez's attempts to sell the lots were substandard
and that sales of comparable local property suggested a true market
value of approximately $60,600 for both lots.  There was also some
discussion of the effect of the closure of a nearby timber mill on
land values; Alvarez claimed that this should reduce the
assessment, while the borough assessor claimed that surveys showed
that the closure had no effect on the market value of unimproved
properties.
          The Board voted against Alvarez and in favor of the
borough assessor as to both unimproved lots, by a vote of five to
two.
          As for Alvarez's residential property, the Board
considered this assessment as Appeal No. 423.  Alvarez argued that
the assessed value of this property increased dramatically (from
$160,900 to $206,450) between 1992 and 1993, and that this increase
was based on various factual errors made by the borough assessor.
Alvarez claimed, among other things, that the assessed value was
based on the assumption that her property had a functional garage
and balcony, while in reality these features were unusable. 
Alvarez also claimed that a neighbor's building encroached on her
land and that the square footage of encroachment should not be
included within her taxable square footage.  The borough assessor
responded by claiming that the 1997 assessment included corrections
for past errors, and was verified by an exterior inspection;
Alvarez apparently refused to allow an interior inspection.  The
borough assessor also claimed that no adjustment for the
encroachment was warranted, because the encroachment did not affect
market value -- as shown by an analysis of similar encroachments on
other properties.
          The Board voted against Alvarez and in favor of the
borough assessor, affirming the assessment of the residential
property by a vote of five to one.
          Alvarez appealed the Board's decisions to the superior
court on May 15, 1997, and the case was assigned to Superior Court
Judge Thomas M. Jahnke.  Alvarez appealed the merits of the Board's
decisions, and she also filed a motion to supplement the record
with the borough assessor's complete files on her properties. 
After briefs were filed by both sides, the superior court denied
the motion to supplement the record and affirmed the Board's
decision.  Alvarez filed a motion for rehearing with the superior
court, and the court denied the motion, holding that it was
untimely under Appellate Rule 506.  Alvarez appeals these
decisions.
III. STANDARD OF REVIEW
          In this appeal we must review two procedural decisions of
the superior court: the denial of Alvarez's motion to supplement
the record, and the denial of Alvarez's petition for rehearing.  We
review these decisions for abuse of discretion. [Fn. 3]
          We must also review the superior court's ruling that the
Board's findings of fact were sufficient to permit meaningful
appellate review.  We give no deference to the superior court's
decision on this issue because it was acting as an intermediate
court of appeal. [Fn. 4]  Whether the Board's findings are
sufficient to permit appellate review is a legal question that we
decide by exercising our independent judgment. [Fn. 5]
IV. DISCUSSION
          We must consider four issues in this appeal: (A) the
timeliness of Alvarez's appeal; (B) the denial of Alvarez's motion
to supplement the record on appeal; (C) the sufficiency of the
Board's factual findings; and (D) the denial of Alvarez's motion
for rehearing.  These will be addressed in turn.
     A.   Timeliness of Alvarez's Appeal
          The Borough, citing Appellate Rule 204(a)(1), claims that
Alvarez's appeal to this court was not timely and that therefore we
do not have jurisdiction over this appeal.  Alaska Rule of
Appellate Procedure 204(a)(1) provides:
          The notice of appeal shall be filed within 30
days from the date shown in the clerk's certificate of distribution
on the judgment appealed from, unless a shorter time for filing a
notice of appeal applies as provided by Rules 216-220.

The Borough claims that the appeal was not made until more than
thirty days after the superior court's July 23, 1998 decision. 
Alvarez denies that the appeal was untimely.
          We will not address this argument because it was not
properly presented to us.  The Borough's argument was made only in
passing in its jurisdictional statement and was not briefed on
appeal. [Fn. 6]  We therefore decline to address this argument.
     B.   The Superior Court Properly Denied Alvarez's Motion to
Supplement the Record.

          Alvarez made a motion below to supplement the record on
appeal to include the entire borough assessor's file on each of the
three properties concerned in this appeal.  The superior court
denied this motion on the grounds that Alvarez failed to show that
any of the materials that she sought to add either were considered
by the Board, or were not already present in the record on appeal.
          As the Borough points out, Alaska Appellate Rules
604(b)(1) and 210 are controlling on this issue.  Appellate Rule
604(b)(1) establishes that the record for an appeal from an
administrative agency "consists of the original papers and exhibits
filed with the administrative agency," and also establishes that
Appellate Rule 210 applies, with some limited exceptions not
applicable here.  Rule 210(i) allows for modification of the record
on appeal if the record does not "truly disclose[] what occurred"
in the trial court, or if "anything material" is omitted from the
record:
          Power of Court to Correct, Modify or
Supplement.  . . . [I]f any difference arises whether the record
truly discloses what occurred in the trial court, the difference
shall be submitted to and settled by that court and the record made
to conform to that court's decision.  If anything material to
either party is omitted from the record on appeal by error or
accident by court personnel, or is misstated therein, the parties
by stipulation, the trial court, or the appellate court . . . may
direct that the omission or misstatement shall be corrected.  All
other questions as to the content and form of the record shall be
presented to the appellate court.

Alaska Statute 29.45.210(d), which specifically concerns hearings
before municipal boards of equalization, also applies and provides:
          An appellant or the assessor may appeal a
determination of the board of equalization to the superior court as
provided by rules of court applicable to appeals from the decisions
of administrative agencies.  Appeals are heard on the record
established at the hearing before the board of equalization.[ [Fn.
7]]

The record on appeal in this case included all parts of the borough
assessor's files that were submitted as evidence at the Board
hearing and marked as exhibits.  Alvarez claims that the Board
considered and made reference to materials in these files that were
not formally marked as exhibits, and that these materials should
have been part of the record on appeal.  The Borough, citing Cool
Homes, Inc. v. Fairbanks North Star Borough, [Fn. 8] claims that
the record established at the Board's hearing, and therefore the
record on appeal, properly consisted only of those materials marked
as exhibits.
          We have considered the issue of supplementation of the
record on appeal of an administrative agency decision in several
previous decisions. [Fn. 9]  In these decisions, we stated that the
record on appeal in such cases properly consists of evidence that
was either "submitted to" or "considered by" the administrative
board. [Fn. 10]  We have also noted that a superior court's refusal
to supplement the record is harmless if the excluded material would
not have changed the outcome of the dispute on appeal. [Fn. 11]
          None of the material that Alvarez claims was wrongly
excluded was actually "submitted to" or "considered by" the Board. 
A review of the transcript of the Board's hearings indicates that
all of the materials presented to, considered by, and discussed by
the Board in these hearings, both formally and informally, are
contained in the record on appeal.  These materials are:
     the assessor's reports on each of the properties, including
     the appeal forms filled out by Alvarez;

     the list of comparable properties used by the assessor to
calculate the market values of lots A and B;

     the assessor's assessment valuation history for lots A and B
and for the residential property;

     Alvarez's classified ads placed in an attempt to sell lots A
and B;

     correspondence between Alvarez and the assessor concerning her
residential property; [Fn. 12]

     photographs of Alvarez's residential property with associated
commentary;

     the assessor's written explanation of its corrections to the
residential property's value;

     the "as-built survey" of the residential property included in
the assessor's report;

     an affidavit from Alvarez's tenant describing certain interior
features of one of the buildings on Alvarez's property;

     a map of properties in the area of Alvarez's residential
property showing other encroachments similar to the one on
Alvarez's property.

This is a complete list of all materials considered by or submitted
to the Board, as the transcript indicates. [Fn. 13]  All of these
materials appear in the record on appeal.  Therefore, none of the
materials that Alvarez claims were wrongly excluded from the record
on appeal were submitted to or considered by the Board.  The record
on appeal was complete, and the motion to supplement the record was
properly denied.
     C.   The Board's Failure to Make Sufficient Factual Findings
Constitutes Harmless Error.

          Alvarez claims that the Board did not make factual
findings that are sufficient to enable meaningful judicial review,
as required by our decision in Faulk v. Board of Equalization. [Fn.
14]  Alvarez asserts that the Board made no findings of fact at all
to support its conclusion that the assessor's assessment should be
upheld, and that therefore meaningful review of the Board's
conclusion is impossible.  The Borough claims that Faulk is
distinguishable, and that in this case the findings made by the
Board were sufficient to enable meaningful review.
          The superior court below made sufficient factual
findings.  The court stated that "[w]ith regard to the vacant land,
there is a clearly adequate record."  As for the residential
property, the court concluded that "it is relatively clear" from
comments made on the record by Board members that the Board
"concluded that the assessor had adequately addressed Alvarez's
objections and incorporated changes, where necessary, into their
valuation."  
          In Faulk, we articulated the standard for the sufficiency
of factual findings by an administrative board of equalization,
stating that "the threshold question" on appeal is "whether the
record sufficiently reflects the basis for the [board's] decision
so as to enable meaningful judicial review": [Fn. 15]
          In answering that question, "[t]he test of
sufficiency is . . . a functional one: do the [board's] findings
facilitate this court's review, assist the parties and restrain the
[board] within proper bounds?"[ [Fn. 16]]

We stated that findings will not always be required: "in certain
cases, the issues are such that, based on the record, detailed
findings are not necessary for this court to understand the
agency's reasoning process." [Fn. 17]
          In this appeal, Ketchikan Gateway Borough Code sec.
45.11.105(9) is also relevant; it states that the Board of
Equalization should make its decisions in the form of "motions,
with specific findings of fact therefore."
          In several earlier decisions, we considered the
sufficiency of administrative factual findings, and we concluded
that the findings there were not sufficient to enable meaningful
review.  In five of those cases, the findings were not sufficient
because it was impossible for us to determine how the board
resolved some crucial dispute or other issue. [Fn. 18]  In two
other decisions, we held that the findings of an administrative
board were sufficient because it was possible to determine how all
crucial disputes and issues were resolved. [Fn. 19]
          The factual circumstances involved in Faulk are similar
to those in this appeal.  In Faulk, the property owner (Faulk)
owned a condominium complex in Seward that he bought for $495,000.
[Fn. 20] Approximately one month after Faulk purchased the complex,
the assessor assessed its value at $1,055,400. [Fn. 21]  Since
there were no other condominium complexes in the area, the assessor
based the value on comparable sales of townhouses. [Fn. 22]  Before
the board of equalization, Faulk claimed that (1) costly repairs
that were needed at the complex were undervalued by the assessor,
and (2) the comparable properties used by the assessor were not
really comparable. [Fn. 23]  The assessor supported its valuation
by claiming that Faulk received a "bulk discount" when he bought
the entire complex at once, rather than each unit individually.
[Fn. 24]  In a written report, the assessor claimed that the
alleged bulk discount was between twenty-five and thirty-five
percent; however, at the hearing the assessor stated that the
discount was between thirty and fifty percent. [Fn. 25]  After the
parties made their presentations, the board voted, without any
discussion or analysis, to uphold the assessor's valuation. [Fn.
26]  On appeal, we held that the equalization board's findings were
insufficient because the board did not address Faulk's argument
that the repair costs were undervalued, did not indicate whether it
agreed with the assessor's "bulk discount" theory, and did not
resolve the inconsistency between the assessor's written and oral
testimony. [Fn. 27]
          As in Faulk, this appeal is from a decision of a board of
equalization, where the original dispute between the parties
concerned the proper valuation of the taxpayer's property.  Before
the Board, Alvarez claimed that her undeveloped lots should be
assessed using the amount of the best offer to buy that Alvarez had
received; she claimed that the closure of a local timber mill had
a negative impact on property values, making prior comparable sales
irrelevant.  As for her residential property, Alvarez claimed that
the Borough made various factual errors, and that the assessment
should have accounted for an encroachment on her lot.  The Borough
responded to all of these arguments, claiming that Alvarez did not
make a reasonable attempt to sell the undeveloped lots, that the
mill closure had no effect on undeveloped property values, that
factual errors concerning the residential property were corrected,
and that the encroachment had no effect because this was true for
comparable properties.
          Also, as in Faulk, the Board below did not make any
explicit factual findings.  At the close of the discussion period
for each of Alvarez's appeals, the Board voted to affirm the
assessments for each of the three properties, and no factual
findings were issued.
          Unlike in Faulk, however, the failure here to make any
explicit factual findings is harmless.  This appeal is
distinguishable from Faulk because the record indicates that the
Board addressed all of the arguments made by the parties, and left
no disputes unresolved; it is clear that the Board agreed with all
of the borough assessor's arguments and disagreed with those made
by Alvarez.
          Specifically, the Board addressed all of the arguments
raised by the parties in question and answer and discussion
periods, conducted after the parties' presentations to the Board. 
In these periods, the Board addressed the reasonableness of the
offer to buy the unimproved lots, the relevance of the comparable
sales relied upon by the assessor in light of the mill closure, the
alleged factual errors concerning the residential property, and the
encroachment on the residential property.
          Also, unlike in Faulk, where we could "only guess" how
the equalization board resolved evidentiary conflicts, [Fn. 28] it
is clear in this case how the conflicting theories were resolved. 
On the material points of conflict noted above, the Board clearly
agreed with the assessor's arguments and disagreed with Alvarez's
arguments. [Fn. 29]  No disputes were left unresolved.
          We do not condone the Board's failure to make factual
findings.   Ketchikan Gateway Borough Code sec. 45.11.105(9)
clearly
required the Board to issue factual findings, and it should have
done so in this case.  However, we conclude that this failure was
harmless because the record adequately discloses the basis for the
Board's decision, and shows how the Board resolved the disputes
between the parties.
     D.   The Superior Court Properly Denied Alvarez's Petition for
Rehearing.

          After the superior court ruled against Alvarez on the
merits of her dispute on July 23, 1998, Alvarez submitted a motion
for rehearing to the superior court, on August 24, 1998.  However,
on September 6, 1998, the superior court denied Alvarez's motion
for rehearing, ruling that it was untimely under Appellate Rule
506.  Alvarez appeals this ruling.
          Appellate Rule 506 controls here because the superior
court acted as an intermediate appellate court by reviewing the
Board's decision. [Fn. 30]  Appellate Rule 506(b) requires that any
petition for rehearing must be filed within ten days after the
"date of notice" of the opinion or other decision.  The "date of
notice" is defined by Alaska Civil Rule 58.1(c)(2) as the "date
shown in the clerk's certificate of distribution on the written
order."
          The problem in this appeal is that the clerk's
certificate of distribution on the July 23, 1998 order was undated,
and thus failed to specify the "date of notice."  Alvarez therefore
claims that the ten-day period mandated by Appellate Rule 506(b)
never started to run.  The Borough argues that this clerical error
alone should not be sufficient to excuse the untimely petition,
absent actual evidence that distribution was delayed.  Instead, the
Borough suggests that the date of the July 23, 1998 order be used
as the "date of notice," and that therefore the petition for
rehearing was due ten days after July 23.  The superior court
agreed with the Borough, and held that the petition was due "on or
about August 3," asserting that the ten-day period began to run on
the "date of distribution."  The superior court apparently assumed
that the date of distribution was on or about July 23.
          We need not resolve this dispute, because even if the
petition for rehearing were deemed timely, earlier parts of this
opinion establish that Alvarez could not prevail on either of the
arguments made in her petition for rehearing.  In that petition,
Alvarez made two arguments: (1) the superior court failed to
consider Ketchikan Gateway Borough Code sec. 45.11.105(9), which
required the Board to make factual findings; and (2) material was
wrongly excluded from the record on appeal.  We have already fully
considered both of these issues in this opinion -- we held that the
motion to supplement the record on appeal was properly denied and
that the Board's failure to issue factual findings was harmless
error.  Therefore, it is irrelevant whether or not the petition for
rehearing was timely.
V.   CONCLUSION
          Because all materials submitted to or considered by the
Ketchikan Gateway Borough Board of Equalization were in the record
on appeal, we AFFIRM the superior court's denial of Alvarez's
motion to supplement the record.  Because the Board's failure to
issue findings of fact was harmless, we AFFIRM the tax assessment
made by the Ketchikan Gateway Borough.  Because Alvarez's petition
for rehearing cannot succeed in light of this opinion, we AFFIRM
the superior court's denial of that petition.


                            FOOTNOTES


Footnote 1:

     Lot A is Parcel No. 30-3640-142-000, and lot B is Parcel No.
30-3640-143-000.


Footnote 2:

     The Ketchikan Assembly hears appeals of property tax
assessments as the Ketchikan Gateway Borough Board of Equalization. 
See AS 29.45.200.


Footnote 3:

     See Balough v. Fairbanks North Star Borough, 995 P.2d 245,
254-55 (Alaska 2000) (denial of motion to supplement the record);
Harrelson v. Harrelson, 932 P.2d 247, 250 (Alaska 1997) (denial of
Civil Rule 77 motion for reconsideration).


Footnote 4:

     See Faulk v. Board of Equalization, 934 P.2d 750, 751 n.2
(Alaska 1997).


Footnote 5:

     See Ayele v. Unisea, Inc., 980 P.2d 955, 957 n.2 (Alaska
1999).


Footnote 6:

     See In re Dissolution of Marriage of Alaback, 997 P.2d 1181,
1184 n.3 (Alaska 2000) ("Points given only a cursory treatment in
the argument portion of a brief will not be considered on appeal,
even if developed in the reply brief.").


Footnote 7:

     See also Ketchikan Gateway Borough Code sec. 45.11.106 (1969) 
("Appeals [to the superior court] are heard on the record
established at the hearing before the board of equalization.").


Footnote 8:

     860 P.2d 1248 (Alaska 1993).


Footnote 9:

     See Southwest Marine, Inc. v. State, Dep't of Transp. & Pub.
Facilities, 941 P.2d 166, 179-81 (Alaska 1997); Cool Homes, 860
P.2d at 1266-67; Oceanview Homeowners Ass'n v. Quadrant Constr. &
Eng'g, 680 P.2d 793, 798-99 (Alaska 1984); Interior Paint Co. v.
Rodgers, 522 P.2d 164, 169 (Alaska 1974).


Footnote 10:

     Oceanview Homeowners Ass'n, 680 P.2d at 798 (noting that "any
matter submitted to an administrative agency involved in an
adjudicative proceeding may be included in the record on appeal");
Interior Paint Co., 522 P.2d at 169 (holding that the superior
court improperly supplemented the record on appeal from an
administrative decision because the superior court "went beyond the
evidence which the Board considered and bas[ed] its decision on
other parts of the record").


Footnote 11:

     See Southwest Marine, 941 P.2d at 179; Cool Homes, 860 P.2d at
1267; Oceanview Homeowners Ass'n, 680 P.2d at 798-99.


Footnote 12:

     Two letters mentioned by Alvarez at the hearing are not in the
record: a letter written in 1993 to the assessor, and a June 16,
1995 letter from the assessor to Alvarez.  However, these letters
are not among the documents that Alvarez claims were wrongly
excluded.


Footnote 13:

     At one point during the hearing the assessor discussed the
details of features of Alvarez's residential property that do not
appear in any documents in the record.  It does not appear that in
doing so the assessor submitted any materials to the Board.  Also,
these details do not appear in any materials that Alvarez claims
were wrongly excluded.


Footnote 14:

     934 P.2d 750 (Alaska 1997).


Footnote 15:

     Id. at 751.


Footnote 16:

     Id. (quoting South Anchorage Concerned Coalition, Inc. v.
Coffey, 862 P.2d 168, 175 (Alaska 1993)).


Footnote 17:

     Id. (quoting Fields v. Kodiak City Council, 628 P.2d 927, 932
(Alaska 1981)).


Footnote 18:

     See id. at 751-52 (findings of board of equalization were not
sufficient because board denied property owner's appeal of
assessment without any discussion; reviewing court could not
determine how the board resolved factual conflicts and
inconsistencies in testimony); Stephens v. ITT/Felec Servs., 915
P.2d 620, 627 (Alaska 1996) (findings of workers' compensation
board were not sufficient because board did not resolve dispute
about whether work conditions could have caused the claimant's
injury; testimony on this crucial issue was not mentioned or
discussed by the board); White v. Alaska Commercial Fisheries Entry
Comm'n, 678 P.2d 1319, 1322 (Alaska 1984) (findings of fisheries
permit board were not sufficient because board gave no reasons at
all for denying "points" necessary for permit; reviewing court
could not determine whether denial was based on factual or legal
judgment); Fields v. Kodiak City Council, 628 P.2d 927, 932-34
(Alaska 1981) (findings of board of adjustment were not sufficient
because board gave no reasons for denial of zoning variance;
reviewing court could not determine whether denial was based on
appropriate factors); Hewing v. Alaska Workmen's Compensation Bd.,
512 P.2d 896, 898-900 (Alaska 1973) (findings of workers'
compensation board were not sufficient because board did not
explicitly apply any of the factors required by AS 23.30.190 and
.210; reviewing court could not determine if the board applied the
proper factors and how it applied them).


Footnote 19:

     See Carlson v. Doyon Universal-Ogden Servs., 995 P.2d 224, 230
(Alaska 2000) (findings of workers' compensation board were terse,
but sufficient because they addressed all crucial issues in the
case, and addressed conflicting testimony); Ayele v. Unisea, Inc.,
980 P.2d 955, 957-58 (Alaska 1999) (findings of workers'
compensation board were sufficient, even though lay witness
testimony was not addressed, because lay witness testimony was not
potentially material and did not "undermine" employer's expert
testimony on which the board relied).


Footnote 20:

     934 P.2d at 750.


Footnote 21:

     See id.


Footnote 22:

     See id. at 751.


Footnote 23:

     See id.


Footnote 24:

     See id. at 752.


Footnote 25:

     See id.


Footnote 26:

     See id. at 751.


Footnote 27:

     See id. at 752.


Footnote 28:

     934 P.2d at 752.


Footnote 29:

     We draw this inference because if the Board had agreed with
any of Alvarez's arguments (concerning the offer received, the mill
closure, the factual errors, and the encroachment), then it could
not have upheld the assessment.


Footnote 30:

     See Childs v. Tulin, 799 P.2d 1338, 1341 (Alaska 1990).