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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Groppel (11/2/2018) sp-7313
Notice: This opinion is subject to correction before publication in the P ACIFIC 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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
)
Supreme Court No. 16592
Petitioner and )
Court of Appeals Nos. A-12662/1275 1
Cross-Respondent, )
)
Superior Court No. 4FA-14-01954 CR
v. )
)
O P I N I O N
CONAR L. GROPPEL,
)
)
No. 7313 - November 2, 2018
Respondent and
)
Cross-Petitioner, )
)
v. )
)
ALASKA COURT SYSTEM,
)
)
Respondent and
)
Cross-Respondent. )
)
Certified Question from the Court of Appeals of the State of
Alaska, on Petition for Review fromthe Superior Court of the
State of Alaska, Fourth Judicial District, Fairbanks,
Michael A. MacDonald, Judge.
Appearances: Kenneth M. Rosenstein and Patricia Haines,
Assistant Attorneys General, Office of Criminal Appeals,
Anchorage,and JahnaLindemuth,Attorney General,Juneau,
for Petitioner and Cross-Respondent. Brooke Berens,
Assistant Public Advocate, and Richard Allen, Public
Advocate, Anchorage, for Respondent and Cross-Petitioner.
Thomas P. Amodio, Reeves Amodio LLC, Anchorage, for
Respondent and Cross-Respondent. Kelly R. Taylor,
----------------------- Page 2-----------------------
Assistant Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for Amicus Curiae Alaska Public
Defender Agency.
Before: Stowers, Chief Justice, Winfree, Maassen, and
* [Carney,
Bolger, Justices, and Matthews, Senior Justice.
Justice, not participating.]
STOWERS, Chief Justice.
I. INTRODUCTION
When a criminal defendant asserts the defense of insanity or diminished
capacity or the defendant's mental fitness otherwise is at issue, AS 12.47.070 requires
the court to appoint two qualified psychiatrists or two psychologists certified by the
American Board of Forensic Psychology to examine the defendant. This case presents
the questions whom these experts serve, how they are to be chosen, and who must bear
their costs. We answer that these are the court's experts, that Alaska Psychiatric Institute
(API) must provide them if API employs experts with the qualifications set out by
statute, and that if API does not employ such qualified experts, then the superior court
must appoint qualified experts and the Alaska Court System must bear their costs.
II. FACTS AND PROCEEDINGS
Conar L. Groppel is charged with first- and second-degree murder,
manslaughter, first- and second-degreearson,first-degreecriminalmischief, first-degree
burglary, and evidence tampering. Groppel notified the superior court he might rely on
the defense of diminished capacity, and pursuant to AS 12.47.070(a) the court was
required to appoint at least two qualified psychiatrists or board-certified forensic
* Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
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1
psychologists to examine him and report upon his mental condition. Later Groppel also
moved for a competency and culpability examination.
Groppel was evaluated by Dr. Kristy Becker, a forensic psychologist at
API. Although the superior court found Dr. Becker was "substantively qualified to give
an opinion in this case," it ruled she was not qualified under AS 12.47.070 because she
was not certified by the American Board of Forensic Psychology. The court explained
it had conferred with API representatives and "confirmed that [API]ha[d] no psychiatrist
qualified according to the statute to conduct the examination." The court therefore
announced it would appoint two statutorily qualified experts and stated, "It is the court's
intention that each party will be entitled to [its] own expert, each party to bear [its] own
expert costs and fees."
The State petitioned the court of appeals for review, arguing the Office of
Public Advocacy (OPA) - which represented Groppel - should bear the costs of both
experts. Groppel cross-petitioned for review, arguing the Alaska Court System should
pay the entire costs of both experts. The State responded, adopting Groppel's argument
as an alternative position. The court of appeals then invited the Court System to file a
1 See AS 12.47.020(a) ("Evidence that the defendant suffered from a mental
disease or defect is admissible whenever it is relevant to prove that the defendant did or
did not have a culpable mental state which is an element of the crime. However,
evidence of mental disease or defect that tends to negate a culpable mental state is not
admissible unless the defendant, within 10 days of entering a plea, or at such later time
as the court may for good cause permit, files a written notice of intent to rely on that
defense."); AS 12.47.070(a) ("If a defendant has filed a notice of intention to rely on the
affirmative defense of insanity under AS 12.47.010 or has filed notice under AS
12.47.020(a), or there is reason to doubt the defendant's fitness to proceed, or there is
reason to believe that a mental disease or defect of the defendant will otherwise become
an issue in the case, the court shall appoint at least two qualified psychiatrists or two
forensic psychologists certified by the American Board of Forensic Psychology to
examine and report upon the mental condition of the defendant.").
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response; the Court System argued the superior court was correct to divide the costs
between the State and OPA, but in the alternative OPA should cover the full costs of both
experts.2
The court of appeals certified the question to this court, and we granted the
certification. On January 24, 2018 we issued an order vacating the superior court's order
and remanding with the following instructions:
1. The court shall appoint qualified API psychiatrists
or psychologists to perform the required evaluations unless
the court finds that no psychiatrists at API are qualified and
no forensic psychologists at API are certified by the
American Board of Forensic Psychology, or that there is
another legitimate reason why API staff cannot perform the
evaluations.
2. If the court finds that there are no qualified
psychiatrists and no board-certified forensic psychologists at
API, the court shall appoint at least two neutral expert
witnesses from outside API. The court may solicit
recommendations from the parties when deciding whom to
appoint. But the experts shall report to the court and not to
the parties, and the scope of the evaluations shall be
controlled by the court. The Court System shall pay for these
non-API experts pursuant to AS 12.47.070 and in accordance
[3]
with Alaska Administrative Rule 8.
We stated that an opinion explaining our order would be published at a later date. This
is that opinion.
2 The State's and the Court System's alternative positions became their
primary positions at oral argument before us: the State argued the Court System should
pay, and the Court System maintained OPA should pay.
3 State v. Groppel, No. S-16592 (Alaska Supreme Court Order, Jan. 25,
2018).
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III. STANDARD OF REVIEW
4
The interpretation of a statute is a question of law we review de novo.
"We construe statutes according to reason, practicality, and common sense, considering
5
We use
the meaning of the statute's language, its legislative history, and its purpose."
"a sliding scale approach, under which 'the plainer the language of the statute, the more
6
convincing contrary legislative history must be.' "
IV. DISCUSSION
Alaska Statute 12.47.070 provides for psychiatric or psychological
examination of a criminal defendant when the defendant has filed notice of his intent to
rely on a defense of insanity or diminished capacity, when "there is reason to doubt the
defendant's fitness to proceed," or when "there is reason to believe that a mental disease
or defect of the defendant will otherwise become an issue in the case."7 The statute
directs the court to "appoint at least two qualified psychiatrists or two forensic
psychologists certified by the American Board of Forensic Psychology to examine and
report upon the mental condition of the defendant."8 This opinion clarifies whom these
experts serve, how they are to be selected, and who bears their expense.
A. Experts Appointed Under AS 12.47.070 Are The Court's Experts.
The superior court apparently viewed the two experts it sought to appoint
as being the parties' experts. It stated, "It is the court's intention that each party will be
4 State v. Korkow, 314 P.3d 560, 562 (Alaska 2013).
5 Alaska Airlines, Inc. v. Darrow, 403 P.3d 1116, 1121 (Alaska 2017).
6 Id. at 1121-22 (quoting Bartley v. State, Dep't of Admin., Teachers' Ret.
Bd., 110 P.3d 1254, 1258 (Alaska 2005)).
7 AS 12.47.070(a).
8 Id.
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entitled to [its] own expert, each party to bear [its] own expert cost and fees." The court
was mistaken. Experts appointed under AS 12.47.070(a) serve as the court's expert
witnesses.
In 1972 the Alaska Legislature codified the defenses of insanity and
diminishedcapacityand provided for psychiatricexaminationofdefendants raisingthose
9 The law directed the court to "appoint at least one qualified psychiatrist" or
defenses.
request API's superintendent "to designate at least one qualified psychiatrist . . . to
examine and report upon the mental condition of the defendant" if there were reason to
believe the defendant's mental condition would be at issue.10 With court permission, a
qualified expert retained by the defendant would "be permitted to witness and participate
in the examination."11 The statute required the examination report to be filed with the
clerk of the court, who would then distribute copies to the parties.12
The Alaska Legislature has twice amended this statute: first in 1981 in an
13 and again in 1982 to modify the
act primarily concerning involuntary commitment,
defenses available to defendants claiming mental disease or defect.14 In 1981 it added
the phrase "or a forensic psychologist certified by the American Board of Forensic
9 See ch. 119, § 1, SLA 1972; Schade v. State , 512 P.2d 907, 911 (Alaska
1973).
10 Ch. 119, § 1, SLA 1972.
11 Id.
12 Id.
13 Ch. 84, § 2, SLA 1981.
14 Ch. 143, § 22, SLA 1982.
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----------------------- Page 7-----------------------
15
Psychology." The 1982 bill increased the number of qualified experts from one to two,
16
and removed the language referring to the superintendent of API.
Neither of these
changes altered the character of these examiners as experts for the court.
1. The history of the 1982 amendments reveals legislative intent
to provide non-partisan experts.
An early House Judiciary Committee draft of the 1982 bill revising the
17
psychiatricexamination lawcalled for "at least three"experts, and thefinal amendment
18
required "at least two."
One legislator explained, "[G]etting the benefit of different
opinions . . . [is] the real point here, not that they pick some guy who supposedly is super
19
objective and scientifically accurate. It's not that. It's a subjective judgment."
The House Judiciary Committee hearings also make clear the court-
appointed experts are separate from prosecution or defense experts. A representative
15 Ch. 84, § 2, SLA 1981.
16 Ch. 143, § 22, SLA 1982. This law moved the provision from AS
12.45.087 to its current location at AS 12.47.070 and made other changes immaterial to
our analysis. Compare ch. 119, § 1, SLA 1972, with ch. 143, § 22, SLA 1982.
17 H. Judiciary Comm., Bill Cook's Draft of Senate Bill (S.B.) 535, 12th Leg.,
2d Sess., Alaska Leg. Microfiche Collection No. 1642.
18 H. JudiciaryComm.,SecondWorkDraftforInsanity DefenseAmendments
to H. Comm. Substitute (H.C.S.) for Comm. Substitute (C.S.) for S.B. 535, 12th Leg.,
2d Sess., Alaska Leg. Microfiche Collection No. 1642.
19 H. Judiciary Comm., Hearing on S.B. 535, 12th Leg., 2d Sess., May 20,
1 9 8 2 , a u d i o r e c o r d i n g a t 1 : 1 8 : 5 7 - 1 : 1 9 : 1 5 ,
http://www.akleg.gov/ftr/archives/1982/HJUD/B79R30-HJUD-28-820519-820524.mp3
[hereinafter Hearing Audio]; see also MODEL PENAL CODE § 4.05 cmt. 2 n.5 (A M. L AW
INST . 1985) ("Given thedivergent views among psychiatrists concerning mental disease,
some authors have advocated deemphasizing the 'impartiality' of psychiatric testimony
of court-appointed psychiatrists in favor of presenting the finder of fact with as much
psychiatric information as possible.").
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----------------------- Page 8-----------------------
from the Department of Law testified that he opposed the increase in experts from one
to two:
We'll have two disinterested psychiatrists, assuming a
disinterested psychiatrist can be found. If they're
disinterested, one is likely to go one way; another is likely to
go the other way. And then each party is going to bring in
further psychiatrists. I think we're doubling the number of
psychiatrists likely to appear in any given trial. Currently,
someone from API is usually appointed by the court. If that
psychiatrist says the person is insane, the State usually goes
along with that. If that person - if that psychiatrist says the
person is sane, the defense goes out and gets its own
psychiatrist. So there are usually two psychiatrists testifying
in any trial. Here we're going to have two court-appointed
psychiatrists and then it's very likely that the parties are
going to go out and get their own psychiatrists. . . . And
we're likely to have four psychiatrists instead of two. I don't
see any need for this. [20]
The members of the Committee disagreed, expressing the view that psychiatry "is not an
exact science" and that "it is better to have more than one opinion."21 In another
representative's view, "the worst case situation . . . is that we might have four
psychiatrists instead of two. So what?"22 Moreover, at oral argument before us the Court
System agreed that the experts were neutral experts for the court.
These legislators' openness to multiple psychiatric opinions is consistent
with comments from the drafters of the Model Penal Code, upon which the original 1972
statute is based.
20 Hearing Audio, supra note 19, at 32:14-33:14.
21 Id. at 1:11:30-1:11:43.
22
Id. at 1:13:36-1:13:56.
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----------------------- Page 9-----------------------
2. The Model Penal Code drafters' comments are persuasive
authority supporting our interpretation.
The principal goal of the 1972 law was to overhaul Alaska's legal standard
23
for the insanity defense, which this court declined to do in Pope v. State . Justice
Connor filed a lengthy dissent on this issue, criticizing the "retrograde decision"
formulating the state's then-extant insanity test and praising the approach of the Model
24
Penal Code. This critique apparently proved persuasive to Representative William
25
Moran, who chaired the House Judiciary Committee. The committee took care to
incorporate substantially all of Sections 4.01 (insanity or diminished capacity) to 4.05
26
(psychiatric examination) of the Model Penal Code into the 1972 bill.
Although a robust draft of the Model Penal Code was completed by 1962,
27
it was not published officially until 1985. The 1985 version included extensive
commentary by the drafters, including their discussion of the model provision for court-
appointed experts. The commentary notes this section
allows, but does not require, the court to order that a
psychiatrist representing the defendant be permitted to
23 478 P.2d 801, 806 (Alaska 1970).
24 Id . at 809-12 (Connor, J., dissenting in part).
25 Minutes, H. Judiciary Comm. Hearing on H. Bill (H.B.) 341, 7th Leg., 2nd
Sess., May 1, 1972, Alaska Leg. Microfiche Collection No. 30.
26 Id .; Minutes, H. Judiciary Comm. Hearing on H.B. 341, 7th Leg., 2nd Sess.,
Jan. 21, 1972, Alaska Leg. Microfiche Collection No. 27; compare MODEL PENAL CODE
§ 4.05 (AM. LAW INST ., Proposed Official Draft 1962), with ch. 119, §§ 1, 3, SLA 1972.
The 1972 bill does not include a version of Section 4.02(2) of the Model Penal Code -
which addresses life imprisonment as an alternative to capital punishment - likely
because Alaska abolished the death penalty in 1957. Ch. 132, SLA 1957.
27 MODEL PENAL CODE (AM. LAW INST . 1985).
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----------------------- Page 10-----------------------
witness and participate in the examination. This is meant to
assure the defendant opportunity for an adequate psychiatric
examination by an expert of his choice. By making it
possible for court-appointed and defense experts to
participate in the same examination, it may also ameliorate
some of the problems of the so-called "battle of the
experts."[28]
The drafters also contemplated defense-side experts: "The Model Code does not
guarantee [the] defendant an expert of his own choice if he is unable to afford one," but
"[g]iven the central place of psychiatric testimony for claims of irresponsibility . . . , the
practice of providing such an expert at government expense seems reasonable."29
The purpose of the Model Penal Code's psychiatric examination section is
clear - to furnish a court-appointed expert, separate from the experts of the prosecution
or the defendant. This expert would provide to the court a report addressing "the crucial
questions the court must answer."30 The court-appointed expert's report would be
28 MODEL PENAL CODE § 4.05 cmt. 2 (A M. L AW INST . 1985).
29 MODEL PENAL CODE § 4.05 cmt. 2 (AM. LAW INST . 1985).
AS 18.85.100(a)(2) provides a criminal defendant "the necessary services and facilities
of . . . representation, including investigation and other preparation"; the court of appeals
has interpreted this to include payment of expert witnesses by the Public Defender
Agency or OPA. See Crawford v. State, 404 P.3d 204, 206 (Alaska App. 2017)
("[W]hen a criminal defendant receives the services of a court-appointed attorney
through either the Public Defender Agency or the Office of Public Advocacy, the
defendant is entitled to have the agency provide the necessary incidents of that legal
representation - for example, to pay for any necessary clerical support, investigative
services, and expert evaluations and testimony.").
30 MODEL PENAL CODE § 4.05 cmt. 3 (A M. L AW INST . 1985).
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----------------------- Page 11-----------------------
"supplemented by psychiatric evidence the defendant or prosecution may wish to
introduce."31
In its responsetothe cross-petitions for review the Court Systemargued the
inclusion of two experts shows the legislature envisioned one expert for the prosecution
and one for the defense. The superior court apparently shared this interpretation when
it announced its "intention that each party [would] be entitled to [its] own expert." But
this interpretation is not consistent with the structure of AS 12.47.070, its legislative
history, or the commentary to the Model Penal Code from which the statute was derived.
The experts are appointed by the court, not retained by the parties. They answer
statutorily prescribed questions, not the parties' questions. The experts report directly
to the court, not to the parties. Finally, the statute expressly contemplates the parties may
retain their own experts.
We hold experts appointed under AS 12.47.070 are experts for the superior
court under the supervision of the court and are appointed to make the statutorily
specified determinations. They are not under the control of the parties. To the extent the
superior court's order envisioned experts supervisedby the parties or retained to advance
either's position in the case, this was error.
B. If Possible, API Must Perform Psychiatric Examinations.
The statute provides little guidance as to whom the court should appoint as
experts. The only statutory requirement is that an expert be a "qualified psychiatrist[]"
or a "forensic psychologist[]certified by the American Board of Forensic Psychology."32
But Alaska trial courts have historically appointed API to perform these psychiatric
evaluations. There is even a form order that the superior court uses to appoint API for
31 MODEL PENAL CODE § 4.05 cmt. 2 (AM. LAW INST . 1985).
32 AS 12.47.070(a).
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psychiatric examinations. The original 1972 statute explicitly allowed the court to
33
request the superintendent of API to designate an expert.
Although this language was
removed in 1982, the legislature rejected a proposal to require "disinterested experts" out
34
of concerns this language could be interpreted as barring evaluations by API.
We believe this historical practice is sound: API is an agency of the State
of Alaska which exists in large part to serve the people and needs of the State, including
the Court System. The superior court must appoint qualified psychiatrists or
psychologists employed by API for evaluations under AS 12.47.070 unless there is a
legitimate reason not to - for example, if API does not employ a qualified psychiatrist
or psychologist as defined by the statute. This is a determination that must be made by
the superior court.
If API cannot provide qualified experts to complete these examinations -
either because the court finds no psychiatrists at API are qualified and no forensic
psychologists at API are certified by the American Board of Forensic Psychology, or
because there is another legitimate reason why API cannot perform the evaluations -
then the court shall appoint experts from outside API. The court may solicit
recommendations from the parties when deciding whom to appoint,35 but it is not
33 Ch. 119, § 1, SLA 1972.
34 Hearing Audio, supra note 19, at 1:15:47 - 1:19:27 ("I tend to feel that [the
word 'disinterested'] would exclude anybody at API. They are the ones already - if the
State arrests somebody, at the time they are arrested, where do they take them? Do they
put them in jail or do they put them in API? If they send them to API, the guy who looks
at them there I would think would no longer be a disinterested psychiatrist."). Early
drafts of the amendment included the "disinterested" language. See supra notes 17-18.
35 See MODEL PENAL CODE § 4.05 cmt. 2 n.8 (A M. L AW INST . 1985) ("Under
Ariz. R. Crim. P. 11.3(c), the court appoints one expert from both prosecution's and
(continued...)
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----------------------- Page 13-----------------------
required to do so; the superior court has broad discretion in selecting its qualified
experts. We reiterate: these experts are neutral experts for the court. The experts report
to the court and not to the parties, and the scope of their evaluations is controlled by the
court.
Here, the superior court explained in its order that it had "confirmed that
[API] ha[d] no psychiatrist qualified according to the statute to conduct the
examination." It is not clear fromthe record whether the court made its own independent
determination on this issue or simply accepted API's representation. In a letter to the
superior court, API's clinical director stated API had only one forensic psychologist on
staff and she was not board-certified. But the letter did not discuss the qualifications of
any of API's psychiatrists; it merely said, "API does not have psychiatrists who conduct
forensic evaluations for Competency to Stand Trial or Mental Culpability." Whether a
psychiatrist is qualified within the meaning of AS 12.47.070 is a determination to be
made by the court.
We note the legislature did not define or limit the word "qualified"
preceding "psychiatrists" as it did in specifying the qualifications it wanted an appointed
psychologist to possess - namely that the psychologist be a forensic psychologist
certified by the American Board of Forensic Psychology. We hold API is required to
provide qualified psychiatrists or psychologists as defined by the statute to serve as
35 (...continued)
defendant's lists of psychiatric experts to examine the defendant; under N.J. § 2C:4-5(a),
the psychiatrist is appointed either from a list agreed to by the court prosecutor and
defendant or upon agreement by the court and parties.").
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----------------------- Page 14-----------------------
court-appointed, neutral expert witnesses or must explain at an evidentiary hearing why
36
it cannot.
If statutorily adequate experts can be appointed from API, they must be.
C. If The Court Appoints Non-API Experts, The Court System Must
Bear Their Costs.
Historically, API has performed psychiatric or psychological evaluations
under AS 12.47.070, and the costs have been absorbed by API. Nothing in the statutory
text or legislative history suggests who should bear the costs of these evaluations if API
cannot performthem. However the experts are appointed by the court, supervised by the
court, and report directly to the court. We conclude that when API is determined to be
unable to provide qualified experts, the Court System must bear the costs of the court-
appointed experts. This conclusion is consistent with Alaska Administrative Rule 8,
which provides that fees for physicians performing "[a]n examination under order of
court [for involuntary commitment proceedings] or such other examinations as may be
ordered by the court upon its own motion" and "[g]iving medical expert testimony at a
hearing when ordered by the court in relation to such examination . . . shall be paid from
funds appropriated to the judiciary."
The superior court's order that the parties each bear the cost of one expert
was error. If API cannot provide experts to perform the evaluations, then the Court
37
System must bear the costs of the court-appointed experts.
36 If it becomes necessary for the superior court to conduct an evidentiary
hearing, that hearing must be searching and produce a comprehensive record for review.
While API may not employ psychologists certified by the American Board of Forensic
Psychology as required by AS 12.47.070, no such limiting certification is required by the
statute for psychiatrists: the statute only requires "qualified psychiatrists."
37 If API can provide only one qualified expert, then the superior court shall
appoint the second expert and the Court System will pay only for the second expert.
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V. CONCLUSION
For the above-stated reasons, we VACATE the superior court's order on
the appointment and payment of experts and REMAND with the following instructions:
1. The court shall appoint qualified API psychiatrists
or psychologists to perform the required evaluations unless
the court finds that no psychiatrists at API are qualified and
no forensic psychologists at API are certified by the
American Board of Forensic Psychology, or that there is
another legitimate reason why API staff cannot perform the
evaluations.
2. If the court finds that there are no qualified
psychiatrists and no board-certified forensic psychologists at
API, the court shall appoint at least two neutral expert
witnesses from outside API. The court may solicit
recommendations from the parties when deciding whom to
appoint. But the experts shall report to the court and not to
the parties, and the scope of the evaluations shall be
controlled by the court. The Court System shall pay for these
non-API experts pursuant to AS 12.47.070 and in accordance
with Alaska Administrative Rule 8.
-15- 7313
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