PATTERN JURY INSTRUCTION COMMISSION
MEMBERS PRESENT:
B. Beehler
A. Boucher
Judge Greenwood
Judge Hagerty
R. McLean
S. Plambeck
T.Purdon
Judge Simonson
Judge Webb
MEMBERS ABSENT:
L. Boschee
Judge Haskell
Judge McClintock
GENERAL BUSINESS
Chair Tim Purdon called the meeting to order. Computer and clerical assistance was provided by Kristi Schatz, Judge Hagerty’s law clerk.
Minutes: Minutes of the October 2-3, 2003 meeting were reviewed.
Motion to approve: Judge Hagerty
Second: Judge Simonson
Approved
Financial Report: The 2003-05 PJIC budget is $26,474. The Commission has spent $7,707 through 29% if the biennium.
Interim Activities
1. Jury instructions on-line: SBAND was contacted regarding difficulties using the instructions online. The search feature has subsequently been modified so that instructions can be located by number. The length of time before internet publication remains a concern but will be monitored.
2. Correspondence: Kristi Schatz was thanked for her assistance during the meeting. Updated membership lists were posted with the Supreme Court website and administrative office. Responses were sent to Dan Vogel and Judge Paulson regarding their respective suggestions and questions.
3. California Jury Instructions: The new California plain language jury instructions, CACI, published January 2, 2004 by the Judicial Council of California were available for review. BAJI, the former publication, had been prepared for sixty-five years by a committee of the Superior Court for the County of Angeles. This committee was disbanded in the summer of 2003 but BAJI, in a supplement also published in January 2004, states that the committee has been reconstituted and will continue its work. Copies of BAJI were available for contrast.
INSTRUCTIONS
1. K - 3.15, Restitution Not a Defense: Judge Simonson reviewed the 1985 instruction. Since publication of the original instruction, there is a ND case on point, State v. Latendresse. In part, this case concerns a man writing a check with insufficient funds but claiming that he should not
be prosecuted because he made restitution before trial. The Court held that restitution is not a bar to prosecution. In addition to the new cite, the conditions of issuing an insufficient funds check and issuing a check without an account were added.
Motion to approve: Judge Hagerty
Second: A. Boucher
Approved
2. C - 2.40, Advice of Counsel: R. McLean reviewed the 1986 Advice of Counsel and proposed two additional instructions, Advice of Counsel - Personal Representative and Advice of Counsel - Criminal. The 1900 and 1933 cites for C - 2.40 were updated. The commission discussed how to make the instruction helpful for telling a jury what they are to do with the information.
Whether the disclosure of facts needs to be “all” facts and whether the facts are those that “could have been discovered by reasonable diligence or inquiry” was discussed. “Defendant” was
changed to “person.” “Full and complete” disclosure was changed to “full and fair.” Is advice of counsel a complete defense or only a factor? Good faith may be a defense. There would still be
a question of what the jury believes. A note was added that this defense is available for claims requiring proof of willful or malicious acts.
Motion to approve: B. Beehler
Second: Judge Hagerty
Approved
The proposed Advice of Counsel - Personal Representative was discussed. In what situation would this be used in a jury trial? Would it add to the general advice of counsel instruction? The situation would be somewhat different when a fiduciary is involved. Use of “Fiduciary” in the title rather than “Personal Representative” was suggested to make the instruction more general. The advice of counsel defense is not a complete defense for non-legal duties delegated to the fiduciary. No action was taken.
The proposed Advice of Counsel - Criminal was discussed. The distinction between mistake of law and advice of counsel was discussed. Reasonable reliance is not the affirmative defense, mistake of law. It is only evidence of mistake of law. It goes to negating the element of criminal intent. A note was added that the instruction is available for crimes requiring proof of criminal intent.
Motion to approve: B. Beehler
Second: R. McLean
Approved (Judge Webb dissenting)
3. C - 74.00, Measure of Damages (Contracts in General): R. McLean proposed a revised Measure of Damages. The older instruction provided for the same damages for breach of contract and fraudulent inducement. Because this instruction is for contracts, it was suggested that a separate instruction for fraudulent inducement in the tort section would be more accurate as the measure for damages for fraud or deceit is the benefit of the bargain rule. NDCC 32-03- 09, Vallejo v. Jamestown College, and Leingang v. City of Mandan Weed Board were reviewed as authority for separate paragraphs in the proposed instruction.
Motion to approve but to withhold publication until the deceit damage instruction is prepared:
Motion to Approve: Judge Hagerty
Second: A. Boucher
Approved
4. C - 74.06, Loss of Profits as Damages: The 1911 Russell v. Olson cite was replaced with Leingang. Language was simplified.
Motion to approve: Judge Hagerty
Second: B. Beehler
Approved
5. C - 74.08, Measure of Damages (Goods Not as Represented or Warranted): The title in parentheses was changed to Breach of Warranty - Accepted Goods). R. McLean proposed a revised and simplified instruction. Case cites were updated and NDCC 41-02-93 was added.
Motion to approve: Judge Simonson
Second: Judge Webb
Approved
6. New, Tampering With Fire Alarm: Judge Hagerty addressed whether the phrase “so as to endanger person or property” was intended as a separate element applicable to “hotel, motel, rooming house, lodging house, or other place of public abode” or intended to modify “other place
of public abode” only. A review of the legislative history indicated that the phrase probably modifies the inclusive list as the intent is likely concern with endangering persons or property in all of the public places rather than just in places of public abode.
Motion to approve: B. Beehler
Second: A. Boucher
Approved
7. K - 7.54, Indecent Exposure: Judge Hagerty expanded the instruction to include acts in the presence of a minor pursuant to NDCC 12.1-20-12.1, as amended.
Motion to approve: Judge Hagerty
Second: B. Beehler
Approved
8. New, Endangerment of Child or Vulnerable Adult: Judge Hagerty proposed an instruction for NDCC 19-03.1-22.2 which was enacted during the last legislative session.
Motion to approve: Judge Hagerty
Second: Judge Webb
Approved
9. K - 21.10, Driving Under the Influence; K - 21.16, Chemical Test - Less Than .08; K - 21.20, Essential Elements of Offense (DUI); K - 21.25, Actual Physical Control; K - 21.26, Essential Elements of Offense (Actual Physical Control): The instructions were modified to reflect the legislative change to the level of alcohol defining driving under the influence.
Motion to approve: Judge Hagerty
Second: A. Boucher
Approved
10. K - 15.52, Trading in Special Influence: Judge Greenwood revised this 1985 instruction. “Party official” was removed from the body of the instruction to track NDCC 12.1-12-05. “Party official” is included in the definition of special influence. This instruction covers only the
special influence situation, not bribery.
Motion to approve: A. Boucher
Second: Judge Webb
Approved
11. K - 14.05, Failure to Appear After Release: Judge Greenwood proposed stylistic changes to this instruction. It was modified to conform to statutory language.
Motion to approve: A. Boucher
Second: Judge Hagerty
Approved
12. K - 13.20, Aiding Consummation of Crime: Previously there were two instructions for aiding consummation of crime with K - 13.22 defining the class C felony. Judge Greenwood suggested combining the two instructions and deleting K - 13.22.
Motion to approve K - 13.20 and delete K - 13.22: B. Beehler
Second: R. McLean
Approved
13. C - 5.50, Alternative Findings (Civil Damage Act) (Illustration): This is a verdict form and now covered by comparative fault. Dram shop liability, the subject of this illustration, is one aspect which would be compared.
Motion to delete: B. Beehler
Second: Judge Webb
Approved
14. K - 10.01, Arson; K - 10.10, Endangering by Fire or Explosion (Indifference to Life); K - 10.12, Endangering by Fire or Explosion (Simple); K - 10.15, Failure to Control or Report Dangerous Fire; K - 10.20, Criminal Mischief; K - 10.30, Tampering With or Damaging Public Service (Intentional); K - 10.40, Definitions: T. Purdon reviewed these 1985-86 Damage to Property Instructions and recommended no changes.
Motion to approve: T. Purdon
Second: Judge Hagerty
Approved
15. K - 10.32, Tampering With or Damaging Public Service (Knowing - Reckless) and K - 10.34, Tampering With or Damaging Public Service: T. Purdon reviewed the three levels associated with this crime–the class C felony (intentionally), class A misdemeanor (knowingly or recklessly), and the class B misdemeanor (negligently). K - 10.32 covers knowingly or recklessly. K - 10.34 defines the class B misdemeanor but states willfully. Whether the culpability for the class B misdemeanor should be negligently was discussed. It is unclear in the
statute, NDCC 12.1-21-06, and when not stated in NDCC Chapter 12.1, willfully is to be inserted. The commission added this information in a note.
Motion to approve: Judge Hagerty
Second: Judge Webb
Approved
16. K - 3.01, Additional Element of Offense - Nonexistence of Defense; K - 3.05, Alibi; K - 3.06, Lack of Criminal Responsibility; K - 3.07, Post-Trial Disposition of Defendant; K - 3.08, Effect of Intoxication on Culpability; K - 3.10, Effect of Voluntary Intoxication: Judge Simonson reviewed these criminal defense instructions and recommended no changes.
Motion to approve: T. Purdon
Second: B. Beehler
Approved
17. C - 6.00, Animals Known to be Vicious: A. Boucher recommended a change to comply with NDCC 36-11-06 and Sendelbach v. Grad. “Willfully” was changed to “negligently.” “At fault” was substituted for “liable.” S. Plambeck suggested wording the tort instructions so that they set out the elements of the duty required. There were no updated cites. The instruction deals only with animals known to be vicious.
Motion to approve: A. Boucher
Second: B. Beehler
Approved
18. C - 6.10, Provocation (Dog Bite Case) and C - 6.20, Evidence of Euthanasia: C - 6.10 is a contributory negligence instruction and is outdated. There is no ND case support for C - 6.20, and use of the instruction seems unlikely.
Motion to delete: T. Purdon
Second: Judge Hagerty
Approved
19. C - 6.30, Alternative Findings (Dog Bite Case) (Illustration): The general verdict form would be more appropriate.
Motion to delete: S. Plambeck
Second: Judge Simonson
Approved
20. C - 6.40, Landlord Liability for Animals Known to be Vicious: After reviewing the vicious animal cases, A. Boucher proposed a new instruction regarding landlord liability. Amyotte v. Rolette County Housing Authority and Twogood v. Wentz were cited.
Motion to approve: B. Beehler
Second: Judge Webb
Approved
21. C - 7.00, Civil Conspiracy: Because the 1986 civil conspiracy instruction was long and complex and because there is more recent caselaw, A. Boucher proposed a new instruction. Higgins v. Trauger and Hurt v. Freeland were reviewed. Issues discussed were damages, whether the act of one is enough to establish civil conspiracy, and clarification of “actual” when referring to the agreement. The California instructions were compared.
Motion to approve: R. McLean
Second: S. Plambeck
Approved
22. C - 70.24, Aggravation of Pre-existing Condition: In 2003 a revised C- 70.22, Damages - Aggravation of Pre-existing Condition, was published and C - 70.24, Injury Aggravated by Defendant’s Wrongdoing, was deleted. Inadvertently, C - 70.24 was reviewed at the October 2003 meeting and the title changed to Aggravation of Pre-existing Condition.
Motion to delete the October draft: T. Purdon
Second: Judge Webb
Approved
23. C - 1.01, 1.02, 1.10, 1.11, 1.20, 1.21, 1.22, 1.30, 1.40, 1.41, 1.50 and 1.55,Civil Introductory Instructions: These 1985-86 instructions were reviewed by B. Beehler, and no changes were proposed.
Motion to approve: R. McLean
Second: B. Beehler
Approved
24. C - 52.00, Bailment for Mutual Benefit; C - 52.05, Implied Warranty of Bailor; and C - 52.08, Warranty of Bailor Limited: Prior to this meeting, S. Plambeck researched whether these instructions have been superceded by the UCC. He concluded that they have not, and the instructions should not be deleted. Most of the cases concern warehousing, e.g., grain. The instructions will remain but be reworded.
25. Reasonable Doubt: T. Purdon had distributed articles and suggestions from M. Hoffman for a revised reasonable doubt instruction. Judge. Webb will review these and update the reasonable doubt cites.
26. C - 7.10, Conversion: Destruction of personal property was added to the definition as it is in the caselaw but hadn’t been included in the previous instruction. Cites were updated.
Motion to approve: R. McLean
Second: B. Beehler
Approved (S. Plambeck dissenting)
27. C - 7.20, Waiver of Security Interest (Conversion Action Against Purchaser): A. Boucher reported that no law supports this instruction, and deletion is recommended.
Motion to delete: T. Purdon
Second: B. Beehler
Approved
28. C - 7.30, Alternative Findings (Conversion) (Illustration): The general verdict form would be appropriate to use.
Motion to delete: S. Plambeck
Second: R. McLean
Approved
29. C - 8.10, Puffing Not Deceit: The Commission did a brief search for newer cites, and A. Boucher will research this for a future meeting.
30. C - 11.00, False Imprisonment, C - 11.10, Good Faith (False Imprisonment), and New, Instigation of a False Arrest: A. Boucher reviewed the 1986 false imprisonment instruction and suggested that it needs revision due to Wishnatsky v. Berquist and Haggard v. First Nat’l Bank of Mandan. The older instruction refers to arrests but the false imprisonment also refers to detainment. The question of when one may detain or arrest another was discussed. He suggested deleting the good faith instruction but proposed a new instruction for instigation of a false arrest. Instigation of false arrest is not a new tort but relates to false arrest. S. Plambeck suggested enumerating the elements emphasizing the duty that is required. S. Plambeck will review false imprisonment and instigation of arrest for a future meeting.
31. C - 11.20, Alternative Findings (False Imprisonment) (Illustration): The general verdict form would be used in this situation.
Motion to delete: B. Beehler
Second: R. McLean
Approved
32. C - 12.05, Justifiable Response to Assault: A. Boucher noted that there is support for the instruction but that the caselaw does not mention protection of the individual’s wife, husband, child, parent, or other relative, or member of the family, or of a ward, servant, master or guest and suggested that these specific references be deleted. There is no ND case dealing with protection of others although there is support in criminal law. Guidelines for determining whether the force was reasonable and necessary were added.
Motion to approve: R. McLean
Second: T. Purdon
Approved
Administration
Members requested that a meeting be scheduled for a full day preceding the SBAND convention being held in Fargo in June.
The meeting was adjourned.
Respectfully submitted,
Lynn A. Kerbeshian
Staff Attorney