PATTERN JURY INSTRUCTION COMMISSION
March 6-7, 2008
MEMBERS PRESENT:
J. Anderson
B. Beehler
A. Boucher
J. Greenwood
J.
Hagerty
T. Kolb
D. Lillehaug
P. Myerchin
J. Simonson
MEMBERS ABSENT:
L. Boschee
J. Lee
J. Webb
GENERAL BUSINESS
Acting Chair J. Simonson called the meeting to order. Michelle Feist, law clerk for the South Central Judicial District, assisted.
Membership: SBAND Board of Governors at its November meeting appointed Tracy Vigness Kolb of Bismarck and Duane Lillehaug of Fargo to each serve a three-year term on the Commission. Brad Beehler was appointed to serve his third three-year term on the Commission.
Minutes: Minutes of the October 2007 meeting were reviewed.
Motion to approve: A. Boucher
Second: J. Anderson
Approved
Financial Report: The 2007-08 PJIC budget is $28,264, and the Commission has spent $7,091.44. This amount is 25.1% of the budget with 33.3% of the biennium having past.
Motion to approve the financial report: B. Beehler
Second: J. Anderson
Approved
Interim Activities
1. Minutes and draft instructions from the October 2007 meeting were prepared and posted.
2. Information regarding identity of new members was received from SBAND.
3. Information regarding the National Conference of Pattern Jury Instructions was received and passed along to members. The Conference, the first of its kind, will be held in Columbus, OH on April 17 and 18. Commission members were encouraged to attend this conference if interested. It was decided the Staff Attorney should attend. J. Hauge will contact Court Administration regarding availability of funds to attend.
INSTRUCTIONS
1. Eminent Domain review, C - 75.00 excluding C - 75.01 and C - 75.04: B. Beehler reviewed the Eminent Domain instructions and presented his proposed changes. Most changes were minor, updating and clarifying language. Deletion of C-75.26 was recommended because the instruction was not supported by statute or case law.
Motion to delete C-75.26: J. Hagerty
Second: A. Boucher
Approved
Discussion was held regarding the language of C-75.02 and whether an instruction is needed because taking is a legal question. In eminent domain actions, the jury only decides damages. Further discussion was held regarding whether the instruction should be left and each individual judge can decide whether to give it. It was decided that deletion was the appropriate course of action because taking is a question of law and not decided by the jury.
Motion to delete C-75.02: J. Hagerty
Second: B. Beehler
Approved
Motion to accept proposed changes to C-75.03: A. Boucher
Second: J. Anderson
Approved
Discussion was held on proposed changes to C-75.05. It was decided the term "fair market value" should be used throughout the instruction for uniformity.
Motion to approve: J. Anderson
Second: P. Myerchin
Approved
Discussion was held on proposed changes to C-75.06. The term "fair market value" will again be used.
Motion to approve: A. Boucher
Second: J. Anderson
Approved
Proposed changes to C-75.10 include removing unnecessary language in the first paragraph and cleaning up language in the second. Discussion was held regarding the brackets around the second paragraph because the Commission was not sure when the paragraph regarding severance damages would be excluded from the severance instruction.
Motion to approve: J. Anderson
Second: P. Myerchin
Approved
A citation was added to C-75.12.
Motion to approve: J. Hagerty
Second: J. Anderson
Approved
New citations were added to C-75.14.
Motion to approve: A. Boucher
Second: B. Beehler
Approved
State constitution was changed in 1989, so citations were changed according. New cases were added, and the term "fair market value" will be used. The note will be removed from C-75.22 because private corporations cannot take property by eminent domain.
Motion to approve all remaining: J. Hagerty
Second: A Boucher
Approved
2. Terrorizing, K - 8.32: J. Greenwood presented proposed changes to the instruction. There are two ways to commit the crime of terrorizing, and changes to this instruction will cover both. Two instructions used to exist but they were combined in 1999. The proposed changes will clean up the single instruction.
Motion to approve: J. Hagerty
Second: B. Beehler
Approved
3. False Report to Law Officer, K 15.22 and New: P. Myerchin presented a proposed new instruction for false report to a law enforcement officer. The law makes it a crime to give false information to a law enforcement officer or to make a false report to a law enforcement officer or security official. A single instruction existed and it was decided to create two instructions for clarity. Discussion was held regarding the new instruction, which will be assigned the number K-15.21.
Motion to approve new instruction: B. Beehler
Second: J. Anderson
Approved
Proposed changes to K-15.22 included listing three elements of false report rather than two. The Commission discussed the elements and ultimately included five in the list.
Motion to approve: J. Hagerty
Second: J. Anderson
Approved
4. Proximate Cause, C 2.15: A. Boucher presented this instruction. The NDSC has stated the current instruction is not incorrect but could be improved upon. A malpractice case from 1995 is the most recent case. Uncertain how it can be improved upon, although introductory language could be added unless it already appears somewhere else. No changes other than to add the recent case.
5. Preventing Arrest or Discharge of Other Duties, K 13.10: P. Myerchin presented this instruction and recommended no changes because the instruction follows the language of the statute. New case law was added to the notes.
Motion to approve: J. Hagerty
Second: J. Anderson
Approved
6. Criminal Instructions based on new legislation : J. Simonson proposed amending K-9.22 to read "in or on the building" in compliance with 2007 changes to N.D.C.C. 12.1-22-03(2)(a).
K-7.23 will be changed to conform with 2007 amendment to N.D.C.C. 12.1-20-05.1 to include "or other electronic means."
N.D.C.C. 12.1-31-11, false representation of marital status, was revised in 2007. Proposed changes to K-7.44 to comply with new law.
Motion to approve: J. Hagerty
Second: P. Myerchin
Approved
7. General Directions for Use for Civil and Criminal Instructions: P. Myerchin reviewed the General Directions for Use and recommended some grammatical changes.
Motion to approve: B. Beehler
Second: A. Boucher
Approved
8. Measure of Damages [False Imprisonment][Malicious Prosecution], C 70.62, and Elements of Damages (Miscellaneous), C 74.20: A. Boucher reviewed these instructions which were last updated in 1986. Proposed changes included adding additional types of injury and citation to a 1989 case. Discussion was held regarding the accuracy of the instruction because it was last reviewed prior to 1989 changes in economic and noneconomic damages law. It is unclear whether N.D.C.C. ch. 32-03.2 applies to false imprisonment and malicious prosecution.
Motion to adopt instruction with proposed new language but delete paragraphs 5 and 6: B. Beehler
Second: none
Motion failed for lack of a second
Motion to adopt instruction with proposed new language but delete paragraph 6 regarding exemplary damages: D. Lillehaug
Second: B. Beehler
Discussion: The Commission expressed uneasiness about removing paragraph 6 absent statutory or common law change. It was felt exemplary damages are separate from general damages; discussion was had about removing the paragraph but including a note as to why.
Approved (5-4)
Motion to remove any reference to exemplary damages in the notes: B. Beehler
Second: T. Kolb
Discussion: Some members still felt a note referencing exemplary damages should be included. Statute should also be referenced.
Motion failed
C-74.20 was presented with the addition of more types of rarely used damages and the removal of some where the governing statutes have been repealed.
Motion to approve: B. Beehler
Second: J. Anderson
Approved
9. Verdict Forms, C 90.01, 90.05, 90.10, 90.15, 90.20, 90.25: D. Lillehaug reviewed the verdict forms that were last reviewed in 1986. He does not recommend any changes and questions whether they are still needed because most modern verdicts are based on special interrogatories. Discussion was held regarding the usage of these forms, the consensus being that they are rarely used but there is no harm in keeping them. Grammatical changes were made to modernize the language.
Motion to approve C-90.25: J. Anderson
Second: P. Myerchin
Approved
10. Verdict Forms, C 90.26, 90.30, 90.35, 90.40, 90.55, and 90.60: T. Kolb reviewed the remaining civil forms that were last reviewed in 1986. The same grammatical changes were recommended for C-90.26. Otherwise, no changes are recommended.
Motion to approve C-90.26: B. Beehler
Second: D. Lillehaug
Approved
It was recommended to update the language in C-90.30 by changing "sum" to "amount" and removing "thereof." C-90.35 was changed to "Plaintiff" and "Defendant" rather than "Appellant" and "Respondent."
Motion to delete lines 4 and 7 in C-90.35: D. Lillehaug
Second: P. Myerchin
Approved
Discussion was had as to when C-90.40 would be used and whether it would be helpful.
Motion to Delete C-90.40: J. Anderson
Second: P. Myerchin
Approved
C-90.55 predates Comparative Fault law and it does not follow the current law. Recommendation for deletion was made.
Motion to delete: J. Hagerty
Second: J. Anderson
Approved
C-90.60 is a sample of how a jury may be asked to answer interrogatories. The sample questions are not a correct statement of North Dakota Comparative Fault law. Discussion was held regarding deletion because the form is not helpful and could lead to confusion.
Motion to delete: J. Hagerty
Second: B. Beehler
Approved
11. Verdict, K 5.65, 5.70, 5.72, 5.74, 5.76, 5.78, and 5.80: J. Anderson reviewed the instructions. K-5.65 still follows the law but language changes were suggested. The civil sealed verdict instruction (C-85.30) was reviewed by the Commission in October 2005. Changes were made to clean up the language.
Motion to approve: A. Boucher
Second: P. Myerchin
Approved
J. Hauge will review C-85.30 to make sure it conforms to new K-5.65.
K-5.70 was last reviewed in 1985. No changes are recommended. The Civil counterpart (C-85.50) was reviewed in 2006. Same recommendation for K-5.72 and 5.74. J. Hagerty will review all instructions relating to Lesser Included Offenses for the October meeting.
K-5.78 references a repealed statute. The note was updated to reference a rule of Criminal Procedure. The same changes were made to K-5.80
Motion to approve both: J. Hagerty
Second: P. Myerchin
Approved
12. Aggravated Assault (Firearm Destructive Device), K 8.04: J. Greenwood reviewed this instruction. The other Aggravated Assault instructions were updated in 2007, this one was missed. Recommendation was to add a note and a third paragraph regarding enhancement for victims under the age of 12. The enhancement element should also be added to the other instructions, K-8.01, 8.02, 8.03. J. Hauge will add the language to the other instructions.
Motion to approve changes and have staff add third paragraph to other instructions: J. Hagerty
Second: P. Myerchin
Approved
ASSIGNMENTS
1. C and K Introductions (P. Myerchin)
2. K-9.01 - K-9.12, K-9.30 - K-9.40 (J. Hagerty)
3. K-16.00 - K-16.15 (B. Beehler)
4. K-17.00 - K-17.15 (J. Simonson)
5. K-18.00-K-18.25 (J. Anderson)
6. K-19.05-K-20.00 (D. Lillehaug)
7. K-20.15-K-20.20 (A. Boucher)
8. Evidence, C 80.05, 80.08, 80.52, and 80.56 (J. Lee)
9. Charge to Jury, K 1.01 (J. Webb)
10. Prostitution, K 7.66 (J. Webb)
11. Defrauding Secured Creditor (False Statement), K 11.35 (J. Lee)
12. Assisting Jurors at Impasse, K 5.64 (J. Lee)
13. Instructions relating to lesser includeds (J. Hagerty)
J. Hauge will converse with L. Boschee to deterime the time and location of the June meeting. The Commission would like to hold the meeting at the UND School of Law in Grand Forks during the same time period as the SBAND annual meeting, which is June 10-13.
Motion to adjourn: J. Anderson
Second: J. Greenwood
Adjourned
Respectfully submitted,
Jennifer M. Hauge
Staff Attorney
8585 62nd Ave SW
Carson, ND 58529
cjhauge@dishmail.net