PATTERN JURY INSTRUCTION COMMISSION
October 2-3, 2008
MEMBERS PRESENT: L. Boschee, A. Boucher, J. Hagerty, T. Kolb, D. Lillehaug, P. Myerchin, J. Webb
MEMBERS ABSENT: B. Beehler, J. Anderson, J. Greenwood, J. Lee, J. Simonson
GENERAL BUSINESS
Chair Judge Webb called the meeting to order. Peter Zuger, law clerk for the South Central Judicial District, assisted.
Election of Vice-Chair: The vice-chair this year would be an attorney. Service is until June 30, 2009 when the vice-chair assumes the position of chair.
Motion to nominate P. Myerchin: J. Webb
Second: J. Hagerty
Approved
Membership: J. Greenwood completed his service on the Commission in June and he is not eligible to serve another term. We are waiting for Judicial Conference to appoint J. Greenwood's replacement. Under Administrative Rule 23, J. Greenwood can continue to serve until his replacement is named. L. Boschee and A. Boucher finished their second terms this year; each is eligible to serve one more term and has expressed interest in doing so. SBAND Board of Governors will discuss L. Boschee and A. Boucher's reappointment or replacements at its November meeting.
Minutes: Minutes of the June 2008 meeting were reviewed.
Motion to approve: D. Lillehaug
Second: T. Kolb
Approved
Financial Report: The 2007-09 PJIC budget is $28,264, and the Commission has spent $17,279.75. This amount is 61.14% of the budget with 62.5% of the biennium having past
Motion to approve the financial report: J. Webb
Second: T. Kolb
Approved
Discussion was held regarding budgeting for the next biennium. It was suggested that the Chair be in contact with Court Administration requesting the same budget as previous years and a pay increase for Staff.
Motion to send letter: J. Hagerty
Second: D. Lillehaug
Approved
Interim Activities
1. Minutes from the June 2008 meeting were prepared and posted.
2. 2008 jury instruction changes and updates were sent to SBAND for publication. These instructions are now available to the practicing bar per SBAND e-mail earlier this week.
3. SBAND was contacted regarding L. Boschee and A. Boucher's expiring terms. Attorneys to fill these positions will be appointed at the November Board of Governors meeting. SBAND was notified of both attorneys' desire to be reappointed to a third term.
4. Judge Herman, chair of Judicial Conference, has been contacted regarding appointment of J. Greenwood's replacement. He has said he will work on it, but to Staff's knowledge no replacement has yet been appointed.
5. An e-mail regarding K-6.15 was received and will be discussed and assigned during the meeting.
INSTRUCTIONS
1. C and K Introductions: P. Myerchin reviewed the introductions, which had last been reviewed in 1986.
a. Criminal Introduction - Citations to statutes and Rules of Criminal Procedure were added. Grammatical changes were made to update the language of the introduction.
Motion to approve: J. Webb
Second: D. Lillehaug
Approved
b. Civil Introduction - Grammatical changes were made to update and modernize the language. Excess language was removed. Recent citations were also added.
Motion to approve: J. Webb
Second: A. Boucher
Discussion was held, J. Webb made amended motion to approve.
Second: A. Boucher
Approved
2. K-9.01 - K-9.12, K-9.30 - K-9.40 - Judge Hagerty and law clerk Peter Zuger reviewed and presented these instructions. No changes were recommended to K-9.01 (Robbery (Class A Felony)) and K-9.02 (Robbery (Class B Felony)). Language was modified in K-9.03 (Robbery (Class C Felony)) to follow the language of the statute (inflicts or attempts to inflict), and a definition section was added at the bottom.
Motion to approve: J. Hagerty
Second: J. Webb
Approved
"Surreptitiously" changed to "secretly" to modernize the language of K-9.10 (Burglary (Class B Felony)) and a definition was added. Other grammatical changes were made.
Motion to approve: J. Hagerty
Second: T. Kolb
Discussion was held regarding whether "effecting" is synonymous with "attempt." This language follows NDCC 12.1-22-02(2)(b), and a decision was made to leave it as is. Approved
The same changes were recommended for K-9.12 (Burglary (Class C Felony)).
Motion to approve: J. Webb
Second: T. Kolb
Approved
Language additions were recommended for K-9.30 (Breaking Into or Concealment Within Vehicle (Class B Felony)) to coincide with NDCC 12.1-22-04 as amended in 1995. Excess language was also removed.
Motion to approve: A. Boucher
Second: J. Hagerty
Discussion was held regarding the elements of the crime, and it was decided to table the instruction until the March meeting. Instruction tabled.
Similar language changes were recommended for K-9.32 (Breaking Into or Concealment Within Vehicle (Class C Felony)). This instruction will also be redrafted and brought back at the March meeting.
"Surreptitiously" was replaced with "secretly."
Motion to approve: J. Hagerty
Second: T. Kolb
Approved
The statutory citation was updated and a definition of "premises" was added to K-9.40 (Definitions (Burglary Breaking and Entering Offenses)).
Motion to approve: J. Hagerty
Second: J. Webb
Approved
3. K-19.05-K-20.00: D. Lillehaug reviewed K-19.05, Lottery. Citation to a 2001 case was added.
Motion to approve: J. Webb
Second: A. Boucher
Approved
K-19.10, Gambling as a Business, was reviewed. Discussion was held regarding "operates," which appears in the instruction but not the statute. The term was removed in order to remain consistent with the statute.
Motion to approve: J. Webb
Second: L. Boschee
Approved
K-19.12, Coin-Operated Gaming Device, was also reviewed. The instruction is definitional; a citation to a 2001 case was added.
Motion to approve: J. Webb
Second: A. Boucher
Approved
D. Lillehaug reviewed K-20.00, Dissemination Obscene Material. The instruction contains 2 elements and it was determined that 3 are needed. The instruction is based on N.D.C.C. 12.1-27.1-01(1). D. Lillehaug will redraft accordingly and present in March.
4. K-20.15-K-20.20 - A. Boucher reviewed K-20.10, Obscene Performance, which was last reviewed in 1986. There is no new law, but excess words were removed and citations to the specific definition statutes were added.
Motion to approve: A. Boucher
Second: P. Myerchin
Approved
K-20.15, Participating in an Obscene Performance, was also reviewed. Reference to NDCC 12.1-02-02 had been removed, but the Commission decided it should be placed back in. The two elements were further broken down into three.
Motion to approve: J. Hagerty
Second: T. Kolb
Approved
A. Boucher reviewed K-20.18, Permitting an Obscene Performance, last reviewed in 1985. The reference to NDCC 12.1-02-02 had been removed but was put back in, and the two elements were further broken down into four.
Motion to approve: J. Webb
Second: P. Myerchin
Approved
A. Boucher reviewed K-20.20, Promoting Obscenity to Minors, last reviewed in 1985. The old instruction did not recognize the existence of 3 separate crimes in NDCC 12.1-27.1-03. The statute using both knowing and recklessly, but they appear to reference two different crimes. But there is no culpability referencing the third crime, so the question is how to draft the instruction. This is the same issue D. Lillehaug faced with K-20.00. D. Lillehaug and A. Boucher will work together to create drafts of new instructions for the March meeting.
Instruction tabled
5. K - 1.01, Charge to Jury: J. Webb reviewed this instruction that was last reviewed in 1985. A few terms were added to modernize the language and reflect the current judicial process.
Motion to approve: A. Boucher
Second: L. Boschee
Approved
6. K - 7.66, Prostitution - J. Webb reviewed the instruction because the statute was amended by the 2005 legislature. A third element was added to follow the statute.
Motion to approve: J. Hagerty
Second: P. Myerchin
Approved
7. Instructions relating to lesser includeds - J. Hagerty reviewed K-2.30, Included Offense, which was last updated in 2006, it was decided no changes were needed.
Motion to approve: L. Boschee
Second: P. Myerchin
Approved
8. K - 8.32, Terrorizing, was reviewed by J. Webb based on a request received by the practicing bar. This instruction was just looked at in 2008, but because of the request, it was reviewed again. Citations to three cases were added. Discussion was held regarding inclusion of both willful and reckless intent, since they seem contradictory. The instruction will be tabled until March, and J. Hagerty and P. Myerchin will review the statute and also bring proposed instructions.
Instruction tabled
9. Legal Entities, C - 55.12, 55.14, and 55.50 - L. Boschee reviewed these instructions from 1986. C-55.12, Negligence of Action Chargeable to Principle, is fine, but it only refers to one instance. L. Boschee felt the commission could do better with 55.12 and 55.14, Alternative Findings, and suggested starting from scratch. 55.12 can be broken down to 2 types of respondeat superior, employer/employee relationships and principle/agent relationships. He created 55.12, Principal Responsible for Fault of Agent, applicable to the principal/agent relationship, and 55.16, Employer Responsible for Fault of Employee, to apply to the employer/employee relationship. 55.14, Scope of Agency, is to be used in cases of a principal/agent, non-servant relationship. 55.18, Scope of Employment, is for the employer/employee relationship. 55.20, Ratification, is for those situations where the agent or employee acts outside the scope of the agency or employment, but the principal or employer ratifies it and becomes responsible. A Ratification instruction already exists at C-55.04, and C-55.20 is Joint Venture; the intention was not to replace this instruction. The proposals will be re-presented in March.
Instruction tabled.
ASSIGNMENTS
1. Breaking Into or Concealment Within Vehicle (Class B Felony), K-9.30, and Breaking Into or Concealment Within Vehicle (Class C Felony), K-9.32 - J. Hagerty
2. Partnership, C - 55.40, 55.45, and New - L. Boschee
3. Reasonably Safe Product, C - 21.43 - L. Boschee
4. Terrorizing, K-8.32 - J. Webb
5. Sexual Performance - J. Hagerty
6. Elections, K-16.00 - K-16.15 - B. Beehler
7. Riots, K-17.00 - K-17.15 - J. Simonson)
8. Forgery and Counterfeiting, K-18.00-K-18.25 (J. Anderson)
9. K-20.00, Disseminating Obscene Material, K-20.00 - D. Lillehaug
10. Promoting Obscenity to Minors, K-20.20 - A. Boucher, D. Lillehaug
11. Testimony of Expert, C - 80.05, Testimony of Landowner, C-80.08, Matters of Common Knowledge and Science, C-80.52, and Insurance Admonition, C-80.56 - J. Lee
12. Defrauding Secured Creditor (False Statement), K - 11.35 - J. Lee
13. Assisting Jurors at Impasse, K - 5.64 - J. Lee
14. Legal Entities, C - 55.12, 55.14, and 55.50 - L. Boschee
The March meeting will be March 5-6, 2009, at the Heritage Center in Bismarck.
Motion to adjourn: J. Webb
Second: A. Boucher
Adjourned
Respectfully submitted,
Jennifer M. Hauge
Staff Attorney
8585 62nd Ave SW
Carson, ND 58529
cjhauge@dishmail.net