State v. Carpenter, Cr. N

• Decision Date: 19 December 1980
• Docket Number: Cr. N
• Citation: 301 N.W.2d 106
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Bruce CARPENTER, Defendant and Appellee. o. 737.
• Court: North Dakota Supreme Court

Page 106

301 N.W.2d 106

16 A.L.R.4th 622

STATE of North Dakota, Plaintiff and Appellant, v. Bruce CARPENTER, Defendant and Appellee.

Cr. No. 737.

Supreme Court of North Dakota.

Dec. 19, 1980.

John M. Olson, State's Atty., and Gail H. Hagerty, Asst. State's Atty., Bismarck, for plaintiff and appellant; argued by Richard Tessier, Senior Law Student.

Ralph A. Vinje, Bismarck, for defendant and appellee.

PAULSON, Justice.

The State appeals from a dismissal of a criminal information against Bruce Carpenter (hereinafter "Carpenter") by the Burleigh County District Court. The district court held that § 6-08-16.2 of the North Dakota Century Code violated due process and equal protection under the Fourteenth Amendment to the United States Constitution and Article I, §§ 11, 13, and 20 of the North Dakota Constitution. We affirm the judgment of the district court.

The question of standing focuses upon whether the litigant is entitled to have the court decide the merits of the dispute. It is founded in concern about the proper and properly limited role of the courts in a democratic society. See Schlesinger v. Reservists' Committee to Stop the War, 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974). Without the limitation of the standing requirements, the courts would be called upon to decide purely abstract questions. As an aspect of justiciability, the standing requirement focuses upon whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to justify exercise of the court's remedial powers on his behalf. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). The inquiry is two-fold. First, the plaintiff must have suffered some threatened or actual injury resulting from the putatively illegal action. Linda R.S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 36 L.Ed.2d 536 (1973). Secondly, the asserted harm must not be a generalized grievance shared by all or a large class of citizens; the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights and interests of third parties. Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). When a person is subject to a criminal prosecution, or is faced with its imminent prospect, that person has clearly established the standing requirements to oppose the prosecution by asserting his relevant constitutional rights. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Schlesinger v. Reservists' Committee to Stop the War, 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974).

On November 5 and on December 4, 1979, Carpenter issued checks without having sufficient funds in his bank checking "6-08-16.2. Issuing check without account or with insufficient funds Penalty Exceptions.

account with which to pay the checks. Carpenter was subsequently charged with a misdemeanor, under § 6-08-16.2, N.D.C.C., and pleaded guilty to the charge on January 28, 1980. He was fined and ordered to make restitution on the checks. On February 4, 1980, Carpenter issued another check without having sufficient funds in his checking account. The State charged Carpenter with a class C felony under § 6-08-16.2, N.D.C.C., which allows the drawer of nonsufficient fund (NSF) checks to be prosecuted for commission of a felony if the drawer had previously been convicted under § 6-08-16, N.D.C.C. Section 6-08-16.2, N.D.C.C., provides, in pertinent part:

1. As used in this section:

a. 'Account' means any account at a bank or depository from which an instrument could legally be paid.

b. 'Dishonor' is synonymous with "nonpayment".

c. 'Instrument' means any check, draft, or order for the payment of money.

d. 'Issues' means draws, utters, or delivers.

2. Any person who, for himself or as agent or representative of another, issues any check, draft, or order for the payment of money is guilty of a class C felony if:

a. At the time of issuing the instrument, the drawer does not have an account with the bank or depository on which the instrument is drawn; or

b. At the time of issuing the instrument, or at the time of presentation for payment if made within one week after the original delivery of the instrument, the drawer does not have sufficient funds in the bank or depository, or credit with the bank, banker, or depository, to pay the instrument in full upon its presentation; and

c. If the drawer has been previously convicted of issuing an instrument without an account or without sufficient funds in a bank or depository pursuant to section 6-08-16.

3. The fact that payment has been refused by a drawee because of insufficient funds or because the drawer has no account with the drawee from which payment could legally be made shall constitute prima facie evidence of intent to defraud. However, if the drawer pays the holder of the instrument within thirty days after receiving written notice of nonpayment by certified mail or by personal service in accordance with rule 4(d) of the North Dakota Rules of Civil Procedure, that fact shall constitute an affirmative defense to a criminal prosecution under this section.

4. A criminal complaint for violation of subdivision b of subsection 2 must be executed within ninety days after the drawer of the instrument receives notice, from the holder, of nonpayment. Failure to execute a complaint within the time set forth in this subsection shall constitute a bar to any criminal charges under subdivision b of subsection 2.

..."

The district court's decision was based upon several reasons. Subsection 2 of § 6-08-16.2, N.D.C.C., enumerates the situations in which a person who issues a check is guilty of a class C felony. Subsection 2 does not include a "mens rea" or mental culpability requirement. The only hint of such a requirement is included in subsection 3 of § 6-08-16.2, N.D.C.C., which states that "The fact that payment has been refused by a drawee because of insufficient funds ... shall constitute prima facie evidence of intent to defraud." The district court reasoned that this section was impermissibly vague and violative of due process because of the absence of a mental culpability requirement. The district court also reasoned that the absence of a mental culpability requirement created a debtor's prison in that, regardless of the drawer's motives or possible civil defenses to payment of the check, the drawer may be required to The district court determined that the provision of subsection 3 of § 6-08-16.2, N.D.C.C., previously quoted, contained an unconstitutional presumption because the presumption of intent to defraud arises when the drawee refuses payment of the check due to insufficient funds. The burden of persuasion would be shifted to the defendant, and the jury in effect would be instructed that the State had proven its case upon the mere introduction of the nonsufficient fund check into evidence. Such an instruction would violate both the Fourteenth Amendment's requirement that the State prove every element of a criminal offense beyond a reasonable doubt, and the United States Supreme Court's decision in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

satisfy the creditor's claim against him in order to avoid criminal liability, under subsection 3 of § 6-08-16.2, N.D.C.C.

Finally, the district court reasoned that § 6-08-16.2 violates the concept of equal protection of the laws under the Fourteenth Amendment to the United States Constitution and § 20 of the North Dakota Constitution because of the provision contained in subsection 3 of § 6-08-16.2, N.D.C.C., which states "However, if the drawer pays the holder of the instrument within thirty days after receiving written notice of nonpayment ... that fact shall constitute an affirmative defense to a criminal prosecution under this section". The district court determined that this provision revealed that the execution and delivery of the nonsufficient fund check did not constitute the complete offense; rather, it is not until the check is presented for payment on or after the date for payment and payment has been refused for lack of funds that the crime is complete. Under this interpretation of the statute, the penalty prescribed by law applies to the drawer's failure to pay the check, rather than to the drawer's issuance of a nonsufficient fund check and, thus, the statute discriminates against an indigent.

VIOLATION OF EQUAL PROTECTION

The district court determined that § 6-08-16.2, N.D.C.C., violated equal protection under the Fourteenth Amendment of the United States Constitution and Article I, §§ 11, 13, and 20 of the North Dakota Constitution. Subsection 3 of § 6-08-16.2, N.D.C.C., permits the drawer to pay the holder of the instrument within thirty days after receiving written notice of nonpayment and also permits the drawer to assert that fact as an affirmative defense to a criminal prosecution. The district court determined that the statute discriminated against the indigent, i. e., Carpenter, and was unconstitutional. Section 6-08-16.2, N.D.C.C., constitutes class legislation because it imposes criminal prosecution burdens upon some persons, i. e., indigents, which are not imposed upon others. Classification itself is not prohibited; however, in classifying to achieve social goals, the legislators may not act arbitrarily. Hospital Services, Inc. v. Brooks, 229 N.W.2d 69 (N.D.1975).

The United States Supreme Court has not formulated a clear test for determining whether a classification is a suspect classification or involves fundamental interests, which invoke strict judicial scrutiny "compelling state interest" as a standard of review. However, the Court has cited factors which include immutable and highly visible characteristics, historical disadvantage, and relative lack of political representation as relevant in determining which classifications are...