PATTERN JURY INSTRUCTION COMMISSION
March 7-8, 2013
M. Armstrong, J. Feland, J. Geiger, T. Kolb, J. Lee, D. Lillehaug, J. McEvers, P. Myerchin, J. Nelson, J. Vensdel, P. Zuger
Chair Judge Lee called the meeting to order. Jennifer Albaugh, law clerk for the South Central Judicial District, assisted.
Terms ending in June include J. Anderson (3), J. Lee (2), M. Armstrong (1) and D. Lillehaug (2). All but J. Anderson are eligible for and interested in reappointment. Staff will contact SBAND and Judicial Conference regarding the appointments.
Minutes of the October 2012 meeting were reviewed. They were amended to indicate J. Nelson was present at the meeting.
Motion to approve: J. Nelson Second: J. McEvers Approved
The 2011-13 PJIC budget is $31,622. As of January 31, 2013, the Commission has spent $25,034.08. This amount is 79.17% of the budget with 79.17% of the biennium having passed.
Motion to approve: D. Lillehaug Second: M. Armstrong Approved
1. Minutes and drafts from the October meeting were prepared and submitted for posting.
2. E-mails were received suggesting the Commission review certain instructions. These instructions were included in today’s agenda and will be assigned.
3. An e-mail was received inquiring about including affirmative defenses in the elements section of an instruction. A response was discussed and will be sent.
a. NDCC 12.1-20-24 (Facilitation of Sexual Acts in Public ) - J. Vendsel reviewed this section and does not think an instruction is necessary because the crime is an infraction.
Motion to not create instruction: J. Vendsel Second: M. Armstrong Approved
b. Surreptitious Intrusion - J. Vendsel created an instruction for this “peeping Tom” statute. Discussion was held regarding the effect of “intent” in the statute. Discussion was held regarding the word “surreptitious,” which some felt is cumbersome and a different word should be used. It was decided to stick with the language of the statute.
Motion to adopt instruction: J. Vendsel Second: P. Myerchin Approved
c. K - 6.15, Murder (Extreme Emotional Disturbance), K - 6.16, Extreme Emotional Disturbance - D. Lillehaug had reviewed these instructions in October and agreed to review them again. He concluded two instructions were needed. The statute has changed and the instruction needs to be updated. He also proposed a new instruction to define “extreme emotional disturbance.”
Motion to approve K - 6.15 as drafted: D. Lillehaug Second: P. Myerchin
Further discussion was held as to whether this statute created a new crime or created a mitigating circumstance for another crime (murder).
The group looked at K - 6.16, an instruction that has always existed, and proposed K - 6.17 (reasonable excuse) because they felt all 3 instructions should be viewed together.
A note pointing users to K - 6.15 was added to the murder instructions (K - 6.01, 6.02, and 6.03)
Withdrawal of earlier motion - D. Lillehaug Motion to adopt K - 6.15 as a special verdict: J. Feland Second: P. Myerchin Approved (J. Vendsel dissenting)
The cases in K - 6.16 were amended but the rest of the instruction still correctly stated the law.
Motion to approve: M. Armstrong Second: D. Lillehaug Approved
K - 6.17 was drafted to provide a definition of reasonable excuse consistent with the statute. A note was added to tie this instruction to K - 6.15 because the instruction only applies when there is extreme emotional disturbance. A similar note was added to K - 6.16.
Motion to approve K - 6.16 as amended - J. Geiger Second: J. Feland Approved
Motion to approve K - 6.17: J. Nelson Second: P. Myerchin Approved (J. Vendsel, dissenting)
d. K - 6.02, Murder (Extreme Indifference to Human Life) - P. Myerchin recommended a correction to the citation. He also proposed a new instruction to define “extreme indifference to human life.” Discussion was held whether defining the term is necessary. Group consensus is to not include a definition.
Motion to adopt 6.02 as amended: J. Feland Second: P. Myerchin Approved
e. Civil Employment Instructions (Whistle Blower) - P. Zuger and M. Armstrong prepared model instructions in this area because they have both had trials on the issue. They debated whether instructions are needed and have decided patterns could be helpful, even though special instructions may also be needed as cases vary. The proposed instructions follow the statutory language and existing ND case law. Some members were hesitant to create instructions for certain issues that arise in this type of cases because they have not been addressed by case law. Others felt basic instructions that at least provide a starting point would be helpful.
Motion to not adopt instructions: J. Vendsel Second: M. Armstrong Motion failed on a tie, instructions will be created.
The first instruction, employer retaliation, mirrors the language of the statute. Brackets were added to help narrow the instruction based on the specifics of the case.
Motion to adopt: J. McEvers Second: P. Myerchin Approved
The next instruction provides the elements of a retaliatory discharge. Discussion was held about how to refer to the parties (plaintiff/defendant, employer/employee, he/she, proper names, etc). It was decided to follow the statute, which uses employer/employee, and provide blanks for using the proper names.
Motion to adopt: M. Armstrong Second: P. Zuger Approved
The next instruction discusses protected activity. The proposed language mirrors the statute.
Motion to adopt: P. Zuger Second: P. Myerchin Approved
The next proposed instruction provides guidelines for determining good faith. The language for this instruction came from ND case law and discussion was held about how much of the language was needed to correctly state the law. A suggestion was made that the case law defining good faith be referenced in the previous instruction rather than be stated in a stand-alone instruction.
Motion to add a note to Protected Activity rather than create a separate Good Faith instruction: J. Geiger Second: M. Armstrong Approved
Motion to approve Protected Activity with note: J. Nelson Second: P. Myerchin Approved
The last proposed instruction addresses Causal Connection. This is not a complete area in the law, but the proposed instruction correctly states the existing law. Lengthy discussion was held debating whether to create this instruction, since there are so many uncertain areas. Some of the language of the instruction was removed and citations added to direct users to case law, including MN case law that the Commission believes clearly and correctly states the law.
Motion to adopt amended first 2 sentences: D. Lillehaug Second: J. McEvers Approved (P. Myerchin dissenting)
f. Possible revisions to K - 1.03 and C - 1.57 in light of recent changes to federal instruction - T. Kolb reviewed these “Twitter” instructions after changes were made to the federal instruction. The only change suggested was to add a line informing jurors to notify the court if they notice another jury violating the instruction. Discussion was held regarding the language to be used.
Motion to approve both instructions: J. Geiger Second: J. Nelson Approved
g. K - 7.90, Registration Requirement (Sexual Offenders and Offenders Against Children) - J. Feland reviewed this instruction and suggested changes based on statutory language and how the instruction is currently being used. The group re-worked the language for ease of use.
Motion to approve: J. McEvers Second: J. Geiger Approved
h. K - 9.30, Breaking Into or Concealment Within a Vehicle (Class B Felony) and K - 9.32, Breaking Into or Concealment Within a Vehicle (Class C Felony) - J. Feland revised these instructions after a judge brought to her attention errors and inconsistency with the statute. Culpability level was discussed.
Motion to table instruction and have Staff research the culpability issue: T. Kolb Second: D. Lillehaug Approved
h. Review of Civil JIGS to determine if any changes or additions needed:
a. Introductory Instructions - T. Kolb (Oct)
b. Misc Torts - P. Zuger and M. Armstrong - need to be separated and assigned, all from 1990’s will be reviewed
i. C - 5.00, 8.00, 8.15 - J. Geiger
ii. C - 9.0-9.40 - M. Armstrong
iii. C - 9.50, 10.20, 12.0, 12.1 - P. Zuger
iv. Medical Negligence - T. Kolb
v. Legal Negligence, C - 19.00 - D. Lillehaug
vi. Duty of Pedestrian (C-16’s) - J. Feland
vii. Lanlord/Tenant (C-17’s) - J. Lee
viii. Intentional Infliction of Emotional Distress (C-20’s) - J. McEvers
c. Motor Vehicle - D. Lillehaug - reviewed the instructions, there is a new statute with no instructions, but otherwise the section looks pretty good
i. 36-10-59 - D. Lillehaug
d. Damages - J. Anderson - section needs to be assigned and reviewed
e. Evidence - J. Vandsel - section needs to be assigned and reviewed
f. Closing Instructions - J. Geiger - other than minor stylistic changes, they look good.
g. Verdict Forms - J. McEvers reviewed the instructions and recommended stylistic changes.
i. C - 90.01 was changed to separate damages and interest because the jury determines whether to award interest. The group discussed whether the instruction is needed because it seems it is never used.
Motion to delete 90.01 and 90.05 - J. Geiger Second: J. Feland Approved
Motion to delete 90.10, 90.15, and 90.20: J. Feland Second: T. Kolb Approved
ii. C - 90.25 appears incomplete because the jury would have to answer questions relating to fraud, etc. C - 90.26 goes along with 90.25, and the group felt 1 form with a list of yes/no questions would be appropriate. J. McEvers will present something in October.
iii. A stylistic change to C - 90.30 was suggested to simplify the way award amounts are presented. This form is specific for Conversion. J. McEvers will look at this instruction for October.
iv. C - 90.35 exists for eminent domain situations. P. Myerchin will take a look at it in conjunction with his review of the eminent domain instructions.
v. C - 90.50 is for use in comparative fault cases. The title was changed to reflect the wording in the statute.
Motion to approve: D. Lillehaug Second: M. Armstrong Discussion was held about whether a date for calculating interest amount should be included. Call the question: J. Feland Approved
Motion to amend 90.50 to add a note: T. Kolb Second: J. Feland Approved
Motion to delete 90.56: D. Lillehaug Second: P. Zuger Approved
a. 2013-15 Staff contract - Executive session was held to discuss the contract and the Commission voted unanimously to accept the contract as presented.
b. Time and location of June meeting (SBAND June 12-14, Bismarck) - breakfast meeting 8:00, Friday, June 14, at the Ramkota in Bismarck.
ASSIGNMENTS FOR OCTOBER
1. Admonition re: eyewitness testimony - J. Nelson
2. Estates - J. Nelson
3. Contracts - J. Lee
4. Agency - J. Feland
5. Eminent Domain - P. Myerchin
6. Legislative Changes affecting Criminal Laws - P. Myerchin
7. E-mail from attorney re: GSI and Reckless Endangerment - P. Myerchin
8. C - 6.00, Animals Known to be Vicious - J. Vendsel
9. Standard Admonitions - J. Geiger
10. C - 5.00, 8.00, 8.15 - J. Geiger
11. C - 9.0-9.40 - M. Armstrong
12. C - 9.50, 10.20, 12.0, 12.1 - P. Zuger
13. Medical Negligence - T. Kolb
14. Legal Negligence, C - 19.00 - D. Lillehaug
15. Duty of Pedestrian (C-16’s) - J. Feland
16. Lanlord/Tenant (C-17’s) - J. Lee
17. Intentional Infliction of Emotional Distress (C-20’s) - J. McEvers
18. Motor Vehicle Civil Instruction, NDCC 36-10-59 - D. Lillehaug
Meeting adjourned by J. Lee, Chair
Jennifer M. Hauge
8585 62nd Ave SW
Carson, ND 58529-9617