State v. Cox

• Decision Date: 15 June 2011
• Docket Number: No. A09–1958.,A09–1958.
• Parties: STATE of Minnesota, Respondent,v.Diane Marie COX, Appellant.
• Court: Minnesota Supreme Court

798 N.W.2d 517

STATE of Minnesota, Respondent,
v.
Diane Marie COX, Appellant.

No. A09–1958.

Supreme Court of Minnesota.

June 15, 2011.

[798 N.W.2d 518]

Syllabus by the Court

Because appellant, who has been charged with issuing dishonored checks, in violation of Minn.Stat. § 609.535 (2010), is not similarly situated to a defendant who commits theft by check, in violation of Minn.Stat. § 609.52, subd. 2(3)(i) (2010), appellant was not denied equal protection of the law.

Lori Swanson, Attorney General, St. Paul, MN; and Robin Finke, Swift County Attorney, Harry D. Hohman, Assistant County Attorney, Benson, MN, for respondent.David W. Merchant, Chief Appellate Public Defender, St. Paul, MN; and Julia Dayton Klein, Lauren J. Galgano, Special Assistant State Public Defenders, Robins, Kaplan, Miller & Ciresi L.L.P., Minneapolis, MN, for appellant.

OPINION GILDEA, Chief Justice.

This case involves a question certified to the court of appeals raising an equal-protection challenge to appellant's prosecution under the dishonored-check statute, Minn.Stat. § 609.535 (2010). The dishonored-check statute provides in some circumstances for harsher penalties than the theft-by-check statute, Minn. Stat § 609.52, subd. 2(3)(i) (2010), and appellant relies on this disparity to support her equal-protection challenge. The court of appeals concluded that appellant had not established an equal-protection violation and answered the certified question in the negative. Because we conclude appellant, who has been charged with writing a dishonored check, is not similarly situated for equal-protection purposes to a person who commits theft by check, we affirm.

Respondent State of Minnesota charged appellant Diane Cox with issuing dishonored checks with a value of more than $500, in violation of Minn.Stat. § 609.535, subd. 2a(a)(1), which is a felony. The complaint alleged that in December 2008, Cox issued five checks totaling $515.83 to businesses in Benson, Minnesota. The bank

[798 N.W.2d 519]

returned the checks to the businesses marked as funds not available. Each business sent, via certified mail, a notice and demand for payment of dishonored check to the address listed for Cox on the check, but Cox did not pay the dishonored checks.

Cox filed a motion to dismiss, arguing that the sentencing disparity between the dishonored-check statute, Minn.Stat. § 609.535, and the theft-by-check statute, Minn.Stat. § 609.52, subd. 2(3)(i), violated her constitutional right to equal protection of the law because issuing a dishonored check is a lesser-included offense of theft-by-check, yet it is punished more harshly than the greater offense. The district court denied Cox's equal-protection challenge but also found the issue presented was “so important or doubtful as to require a decision of the Court of Appeals” and certified a question for appellate review.

The question certified to the court of appeals by the district court was:

Does the disparity in the severity of punishment between Minn.Stat. § 609.535, subd. 2a(a)(1) and Minn.Stat. § 609.52, subd. 3(4), which arguably contemplate the same acts committed under the same circumstances by persons in like situations (writing worthless checks with an aggregate value over $500), constitute an Equal–Protection Violation as applied to Defendant and those similarly charged statewide?

The court of appeals answered the certified question in the negative. State v. Cox, No. A09–1958, 2010 WL 2572562, at *5 (Minn.App. June 29, 2010). We granted Cox's petition for review.I.

A certified question is a question of law that we review de novo. Cargill, Inc. v. Ace Am. Ins. Co., 784 N.W.2d 341, 347 (Minn.2010). The constitutionality of a statute also presents a question of law, subject to de novo review. State v. Melde, 725 N.W.2d 99, 102 (Minn.2006). We presume that Minnesota statutes are constitutional and will strike down a statute as unconstitutional only if absolutely necessary. Id. To prevail, a party challenging the constitutionality of a statute must demonstrate beyond a reasonable doubt that the statute violates a constitutional provision. Miller Brewing Co. v. State, 284 N.W.2d 353, 356 (Minn.1979).

A.

The relevant statutes at issue in this case are the dishonored-check statute and the theft-by-check statute. Issuing a dishonored check is a lesser-included offense of theft by check. State v. Roden, 384 N.W.2d 456, 457 (Minn.1986) (“The greater offense of theft by check involves a defendant issuing a check knowing he is not entitled to do so ( i.e.[,] knowingly issuing a bad check) as part of a scheme whereby he intentionally defrauds another person into transferring property to him.”).

The dishonored-check statute prohibits a person from “issu[ing] a check which, at the time of issuance, the issuer intends shall not be paid.” Minn.Stat. § 609.535, subd. 2. The statute further provides that intent may be shown by proof that: (1) at the time of issuance, the issuer did not have an account with the drawee; (2) at the time of issuance, the issuer had insufficient funds with the drawee and the issuer failed to pay the check within five business days after a notice of nonpayment was mailed; or (3) when presentment was made within a reasonable time, the issuer had insufficient funds and failed to pay the check within five business days after a notice of nonpayment was mailed. Id., subd. 3.

[798 N.W.2d 520]

The penalty for violating the dishonored-check statute varies, depending on the value of the checks at issue. A person convicted of issuing a dishonored check may be sentenced “to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both, if the value of the dishonored check, or checks aggregated ... is more than $500.” ¹ Minn.Stat. § 609.535., subd. 2a(a)(1). The offense is a gross misdemeanor “if the value of the dishonored check, or checks aggregated ... is more than $250 but not more than $500.” Id., subd. 2a(a)(2). The offense is a misdemeanor “if the value of the dishonored check, or checks aggregated ... is not more than $250.” Id., subd. 2a(a)(3).

The theft-by-check statute prohibits a person from obtaining property or services of a third person by “intentionally deceiving the third person with a false representation which is known to be false, made with intent to defraud, and which does defraud the person to whom it is made.” Minn.Stat. § 609.52, subd. 2(3) (2010). A false representation includes “the issuance of a check, draft, or order for the payment of money, except a forged check as defined in section 609.631, or the delivery of property knowing that the actor is not entitled to draw upon the drawee therefor or to order the payment or delivery thereof.” Id., subd. 2(3)(i).

The penalty for theft by check also varies, depending on the value of the goods or services stolen.² Minn.Stat. § 609.52, subd. 3 (2010). The penalty for theft by check is “imprisonment for not more than five years” if “the value of the property or services stolen is more than $1,000 but not more than $5,000.” ³ Id., subd. 3(3)(a). The offense is a gross misdemeanor if “the value of the property or services stolen is more than $500 but not more than $1,000.” Id., subd. 3(4). The offense is a misdemeanor if “the value of the property or services stolen is $500 or less.” Id., subd. 3(5).

Thus, if a person is charged with theft by check and he or she stole goods or services worth the amount at issue in this case, $515.83, the offense is a gross misdemeanor.⁴ But if a person is charged with issuing dishonored checks in this amount, the offense is a felony. This difference in offense level provides the basis for Cox's equal-protection challenge.

[798 N.W.2d 521]

B.

Cox brings her equal-protection challenge under Article I, Section 2, of the Minnesota Constitution. This section provides that, “No member of this state shall be disenfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers.” Minn. Const. art. I, § 2.

It is well settled that in order “[t]o establish that [s]he has been denied equal protection of the laws, [Cox] must show that similarly situated persons have been treated differently.” Paquin v. Mack, 788 N.W.2d 899, 906 (Minn.2010); see also State v. Frazier, 649 N.W.2d 828, 837 (Minn.2002) (“The [E]qual [P]rotection [C]lause guarantees that similarly situated individuals receive equal treatment.”); State v. Mitchell, 577 N.W.2d 481, 492 (Minn.1998) (“The Equal Protection Clause requires that the state treat all similarly situated persons alike.”). We impose this threshold showing “because the guarantee of equal protection does not require that the State treat persons who are differently situated as though they were the same.” Paquin, 788 N.W.2d at 906. And we have routinely rejected equal-protection claims when a party cannot establish that he or she is similarly situated to those whom they contend are being treated differently. See, e.g., Frazier, 649 N.W.2d at 839 (rejecting equal-protection challenge to different penalties for violation of RICO statute and the crime-committed-for-a-gang statute because people who violate each statute are not similarly situated); Heidbreder v. Carton, 645 N.W.2d 355, 376–77 (Minn.2002) (rejecting equal-protection challenge to adoption statutes that treated birth mothers differently than putative fathers because putative father was not similarly situated to a birth mother with respect to their relationship with the child); Mitchell, 577 N.W.2d at 492–93 (rejecting equal-protection claim because 15–year–old defendant, who committed first-degree murder and was tried as an adult, was not similarly situated to 15–year–olds who commit first-degree murder but remain in the juvenile system).⁵

While we have not always followed federal law in interpreting our state Equal Protection Clause, see State v. Russell, 477 N.W.2d 886, 888 (Minn.1991), we have...