PATTERN JURY INSTRUCTION COMMISSION MINUTES
October 1-2, 2009
Judicial Branch Information Technology, Bismarck, ND
MEMBERS PRESENT: J. Anderson, B. Beehler, L. Boschee, A. Boucher, J. Hagerty,
J. Lee, D. Lillehaug, P. Myerchin, J. Narum, J. Simonson
MEMBERS ABSENT: T. Kolb, J. Webb
GENERAL BUSINESS
Past-past Chair L. Boschee called the meeting to order. Rachel Thomason, law clerk
for the South Central Judicial District, assisted.
Election of Vice-Chair: The Vice Chair will be a Judge this year.
Motion to nominate J. Anderson: J. Hagerty
Second: J. Lee
Approved
Judge Anderson is Vice-Chair of the commission, and will assume the Chair's duties in
October, 2010.
Minutes: Minutes of the June 9, 2009 Meeting were reviewed.
Motion to approve: J. Hagerty
Second: B. Beehler
Approved
Financial Report: The 2009-11 PJIC budget is $34,020 and the Commission has spent
$2,000 as of September 15, 2009. This amount is 5.9% of the budget with 10.4% of the
biennium having passed.
Motion to approve financial report: B. Beehler
Second: J. Anderson
Approved
Chair P. Myerchin arrived and assumed his duties as Chair.
Interim Activities
1. Minutes from the June meeting were prepared and posted.
2. The 2009 JIGS were finalized and sent to SBAND for publication. Per a phone call
earlier this week, the paper copies should be ready next week and the instructions
should be on the web in the next couple weeks.
3. J. Geiger, chair of Judicial Conference, was contacted regarding J. Simonson and J.
Webb's expiring terms. Both were reappointed and are currently serving their third
terms.
4. B. Neumann at SBAND was contacted regarding T. Kolb and P. Myerchin's expiring
terms. Both were reappointed and are currently serving their second terms.
5. Staff received a telephone call from a Williston attorney in July regarding the
absence of an instruction addressing a felon in possession of a firearm. He was
going to send the instruction he used, but has not yet been heard from. The
instruction will be discussed and assigned to a Commission member for review and
possible creation.
INSTRUCTIONS
1. Legal Entities, C - 55.12, 55.14, and 55.50 - L. Boschee reviewed these instructions that
were last updated in 1986. He also reviewed 55.25, because it is similar to 55.12.
a. Alternative Findings (Negligence Action - Disputed Agency), C - 55.14 - L.
Boschee recommends deleting 55.14 because the Commission has been
eliminating special verdict forms because they are not used; instead, special
questions appear in the other instructions.
Motion to delete: L. Boschee
Second: J. Hagerty
Approved
b. Employer Responsible for Fault of Employee, C - 55.12 - L. Boschee proposed
changes to replace "agent" and "principal" with "employer" and "employee" because
case law differentiates between agents and "servant agents." Case law has
established that the term "employee" has replaced "servant." The revised instruction
defines the relationship and determines whether the agent is truly an employee.
Discussion was held regarding whether a principal can be vicariously liable for the
actions of a non-employee agent. Further discussion was held regarding a separate
instruction for those situations. The statute still uses "principal" and "agent." The
commission discussed fault, vicarious liability, and different situations that may or
may not be covered by the proposed instruction.
Motion to approve 55.12 as is presented, perhaps renumbering and moving
to a better spot, and prepare a separate instruction to discuss in March
(current 55.12 remains untouched for now): J. Hagerty
Second: B. Beehler
Approved
c. Independent Contractor, C - 55.25 - "Agent" was changed to "Employee;" effort was
made to incorporate "employer/employee" rather than "principal/agent;" "acts or
omission" was replaced with "fault." "Employer" is used whether the agent is an
employee or independent contractor (according to Restatement). Discussion was held
regarding use of the word "absolute" in the final sentence of the second paragraph.
"Absolute control" appears in many independent contractor cases. The final sentence
was discussed, as it may belong in the "tort liability" section rather than "legal
entities." A separate instruction would need to be drafted in that section.
Motion to approve as amended: D. Lillehaug
Second: A. Boucher
Approved
2. Partnership, C - 55.40, 55.45, and New - L. Boschee reviewed these instructions from 1986.
a. Partnership, C - 55.40 - citation to Century Code was changed, no other
changes proposed.
Motion to approve as presented: B. Beehler
Second: J. Narum
Approved
b. Liability of a Partner, C - 55.45 - Language was changed to follow language of
statute. Discussion was held regarding situations where this instruction might be
used; it was suggested that "liable" be changed to "responsible" throughout the
instruction, including in the title. "Personally" was removed.
Motion to approve: B. Beehler
Second: A. Boucher
Approved
c. Proposed C - 55.46, Partners as Agents of Partnership - Current 55.45 dealt with
liability of partner, this proposed instruction deals with liability of the partner as an
agent of the partnership. Instruction follows NDCC 45-15-01. The Commission
redrafted the instruction for clarification. Discussion was held regarding notification
and authorization.
Motion to approve as amended: A. Boucher
Second: J. Narum
Discussion - Question whether the Commission should stray from the
language of the statute. It was agreed that the proposed language is easier
to understand. The title was changed to "Acts of Partners."
Modification of Motion: A. Boucher
Second: J. Narum
Approved, with J. Anderson dissenting.
d. Ostensible Partner, C - 55.50 - Statute uses the term "purported" rather than
"ostensible." L. Boschee drafted two instructions following the statute from the
Uniform Partnership Act. These instructions are loosely based on similar instructions
from MS. This first instruction applies when a person holds themselves out to be a
partner. Changes were made to ensure consistency with the statute.
Motion to approve: J. Hagerty
Second: P. Myerchin
Approved
e. Consenting to a Purported Partner, C - 55.55 - This instruction applies when an
actual partner consents, either actively or passively, to the actions of the person who
acts as a partner. It tracks the same statute as the previous instruction.
Motion to approve: J. Simonson
Second: J. Hagerty
Discussion - The language was further tweaked to accurately follow the
statute.
Approved
3. Testimony of Expert, C - 80.05 - J. Lee reviewed this instruction from 1986. A rewrite was
proposed to better reflect current North Dakota law and nationwide trends. The term
"expert" is misleading to juries; "witness" would be better. Both experts and lay persons can
give opinion testimony under certain circumstances. No known problems exist with the
current instruction, some members are hesitant to change it. The desire is to follow NDREv
702.
Motion to approve as amended: J. Lee
Second: D. Lillehaug
Motion failed 3-6
The commission returned to the original instruction to take another look at it. The
CA instruction was looked at, it is similar to ND's, but uses a list rather than a
paragraph.
Decision was made to table it until the March meeting. D. Lillehaug, L. Boschee and
J. Hagerty will take a look at it as well. Instruction Tabled.
4. Insurance Admonition, C - 80.56 - This instruction is carried over from a previous meeting.
J. Lee proposed eliminating the instruction as presently written because it does not serve to
remove the taint created by a direct reference to a party's insured status. He proposed a
revised insurance admonition to follow NDREv 411. Jurors will assume people carry
insurance; they need to be told it does not matter. If the instruction is given, that may alert
jurors to the fact that evidence of insurance leaked it. A neutral instruction admonishing
against consideration of insurance, regardless of whether it was admitted, might be better.
The instruction would then be curative. Rule 411 needs to be followed.
Motion to approve as amended: J. Hagerty
Second: B. Beehler
Approved
5. Testimony of Landowner, C - 80.08 - J. Lee reviewed this instruction from 1986. He
changed "landowner" to "property owner," because an individual can testify to the value of
any property, not just land. This change was throughout the instruction, including in the title.
Motion to adopt as presented: J. Hagerty
Second: A. Boucher
Approved
6. Matters of Common Knowledge and Science, C - 80.52 - J. Lee reviewed this instruction
from 1986. He proposed elimination of the instruction because the statute the instruction is
based on no longer exists. He believes it should be replaced with an instruction regarding
judicial notice, to follow NDREv 411(g).
Motion to delete: L. Boschee
Second: B. Beehler
Motion passes 6-3
J. Lee proposed a Judicial Notice instruction to replace C-80.52. The instruction
came from the Eighth Circuit; there is not currently a Judicial Notice instruction. J.
Lee proposed both a Civil and Criminal instruction.
Motion to adopt proposed instruction: A. Boucher
Second: D. Lillehaug
The commission discussed judicial notice and whether the request is made
outside the hearing of the jury.
Approved
The Criminal instruction was also looked at.
Motion to delete K- 5.20: J. Lee
Second: B. Beehler
Approved 6-3
Motion to adopt Judicial Notice instruction with caveat for criminal matters:
J.Lee
Second: J. Narum
Approved
7. Reasonably Safe Product, New - This instruction was first proposed and approved in 2007,
but L. Boschee requested more time to further review it and it has never been published. The
Commission is now readdressing it. The Supreme Court has described other instructions in
this area as "more argumentative than instructive" and has cautioned against using them.
Motion to withdraw 2007 approval of proposed instruction: D. Lillehaug
Second: B. Beehler
Discussion - if the Commission does not create this instruction, will there be
a demand for it?
Approved
8. Obviously Intoxicated Person Defined, C - 5.10 - P. Myerchin reviewed this instruction
from 1990. He suggested changes to better track the statute, addition of reference to a ND
case, and removal of reference to a MN case.
Motion to approve as presented: J. Simonson
Second: J. Anderson
Approved
9. Sale of Alcoholic Beverages to a Person Under 21 Years of Age, C - 5.20 - P. Myerchin also
reviewed this instruction from 1990. He suggested changes to the instruction and the title to
better track the statute. He also suggested reference to a ND case, noting that, while it is a
criminal case, it sets out the Court's interpretation as to when this defense applies and the
requirement that every element exist in order to receive the presumption. Discussion was
held as to whether this statute applies to civil cases as well as criminal. The Commission
made further changes to better follow the statute.
Motion to approve as presented: D. Lillehaug
Second: J. Simonson
Discussion - The Commission discussed the effect of this "defense" on a
trial. The phrase "evidence of innocence" was removed because innocence
implies criminal.
Approved (L. Boschee and B. Beehler dissenting)
10. Seat Belt Defense, New - B. Beehler proposed an instruction in this area where there
currently is not one. The proposed instruction is based on NDCC 39-21-41.4 and a case
where the Court appeared to approve the trial court's instruction. This instruction should
appear in the Damages section of the Civil instructions because the issue arises when
determining damages. Case law has established that there is a seatbelt defense in ND.
Motion to adopt: L. Boschee
Second: B. Beehler
Discussion - If this is an area of disagreement between the district courts,
perhaps the Commission should wait for guidance from the Supreme Court
before drafting an opinion.
Motion failed 2-6
11. Violation of a Disorderly Conduct Restraining Order, New - J. Simonson proposed an
instruction based on NDCC 12.1-31.2-01. This statute creates a crime if a person knows of a
Disorderly Conduct Restraining Order and violates that order. The proposed instruction
establishes the crime and states the three elements for proving the crime. References to cases
for affirmative defenses were added.
Motion to adopt: J. Narum
Second: J. Simonson
Approved
12. Gross Sexual Imposition and Sexual Imposition, K - 7.10, 7.12, and 7.15 - J. Simonson
reviewed changes from the 2009 Legislative Session.
a. Sexual Imposition, 7.15 - Minor changes were made to the statute; J.
Simonson revised the instruction to follow these changes. The culpability of
willfully was left in, even though the Legislature had removed it from the
statute.
Motion to accept: J. Hagerty
Second: J. Narum
Approved
b. Staff Attorney was instructed to review all Sex Crime instructions, because many of
these statutes had minor changes.
c. Gross Sexual Imposition (Force or Threat) (Sexual Act), K-7.10 - Revisions
were proposed to track minor changes in the statute. Again, the culpability
level of willful was retained.
Motion to accept: J. Hagerty
Second: J. Simonson
Approved
d. Gross Sexual Imposition (Victim Unaware) (Sexual Act), K - 7.12 - Revisions were
proposed to track minor changes in the statute. The culpability level of willfully was
retained. Reference to a recent Supreme Court case was added.
Motion to accept: B. Beehler
Second: P. Myerchin
Approved
13. Aggravated Assault, K - 8.01 - J. Hagerty and her law clerk proposed addition of the
definition of "serious bodily injury." The definition is a recent addition to the statute, and
the statute is also referenced in a 2009 Supreme Court case. The Commission discussed the
use of "person" versus "human being." The statute uses "human being," and the instruction
will follow the statute.
Motion to accept: B. Beehler
Second: J. Hagerty
Approved
14. Testimony of Accomplice Must Be Corroborated, K - 2.25 - A new case discussing
corroboration was added to the notes of the statute. J. Hagerty and her clerk proposed adding
the case to the notes of the instruction.
Motion to accept: B. Beehler
Second: J. Narum
Approved
15. Simple Assault, K - 8.10 - J. Hagerty and her clerk proposed a minor change to this
instruction to track a change in the statute that added "a state hospital employee" to the list of
persons protected. The word "victim" was also removed from the instruction.
Motion to accept: J. Hagerty
Second: J. Narum
Approved
16. Felonious Restraint, K - 8.74 - J. Hagerty and her clerk proposed adding a reference to a
2008 Supreme Court case that expanded on the definition of "terrorizing circumstances."
Motion to accept: J. Narum
Second: J. Simonson
Approved
17. Registration Requirement (Sexual Offenders and Offenders Against Children), K - 7.90 - J.
Hagerty and her clerk proposed changes to follow the statute, which was amended to include
"residence or employment address." The statute has also been amended to require
registration within three days of moving, not ten.
Motion to accept: J. Hagerty
Second: J. Narum
Approved
18. Creation, Possession, or Dissemination of Sexually Expressive Images, New - J. Hagerty and
her clerk proposed a new instruction to follow the language of the statute.
Motion to accept: J. Hagerty
Second: P. Myerchin
Discussion - The statute says "surreptitiously," but the instruction will say
"secretly." A culpability level is not provided in the statute, so "willfully" will
be used for both aspects.
Amended motion to table until March: J. Hagerty
Second: P. Myerchin
Approved
ASSIGNMENTS
1. Matters of Common Knowledge and Science - J. Lee
2. Defrauding Secured Creditor (False Statement), K - 11.35 - J. Lee
3. Assisting Jurors at Impasse, K - 5.64 - J. Lee
4. "Twitter" Instruction, New - J. Lee
5. Fleeing or Attempting to Allude a Police Officer, K - 14.00 - J. Hagerty
6. Creation, Possession, or Dissemination of Sexually Expressive Images, New - J.
Hagerty
7. Companion instruction to C-55.12, addressing situations where a principal could
be vicariously liable for the actions of a non-employee agent - L. Boschee
8. Testimony of Expert, C - 80.05 - J. Lee (D. Lillehaug, L. Boschee and J. Hagerty
to look at it as well)
9. Interrogatories, C - 80.12 - T. Kolb
10. Duty to Accept Law From Court, New - J. Webb
The March meeting will be Thursday and Friday, March 4-5, at the Heritage Center in
Bismarck at 1:00 pm.
Motion to adjourn: J. Simonson
Second: B. Beehler
Adjourned
Respectfully submitted,
Jennifer M. Hauge
Staff Attorney
8585 62nd Ave SW
Carson, ND 58529
cjhauge@dishmail.net