We previously discussed the importance of one of the “most powerful tools” in the criminal defense lawyer’s tool belt: the statutory language of the charge itself. On Wednesday, the Minnesota Supreme Court continued their recent pattern of deciding the merits of an appeal with a dictionary close in hand in State of Minnesota v. Kristyn Schouweiler. On the face of it, the facts of the case might suggest to even an experienced criminal defense attorney that there is little to argue. The client owed back taxes, and passed a bad check to pay back those taxes. There is a good chance the client knew that the funds were insufficient to cover the check. Afterwards, the client was charged with a felony for attempting to pass a “dishonored check.” Open and shut, right?
Not so fast. Miss Schouweiler’s attorney, in parsing through Minn. Stat. § 609.535, the statute for “Issuance of Dishonored Checks,” noticed a crucial exception tucked away towards the bottom:
Subd. 5. Exceptions.
This section does not apply to a postdated check or to a check given for a past consideration, except a payroll check or a check issued to a fund for employee benefits.
The facts were clear that Miss Schouweiler submitted the check in 2015 for property taxes that were owed in 2014. Would this constitute a check for “past consideration?” What is “past consideration?” If it has multiple meanings, what did the legislature intend it to mean? How do the courts interpret it? Am I doing a disservice to my client in not pressing the issue?
These are all the questions that should be raised when presented with ambiguous or unclear language in a statute. “Well, everyone knows what the law means,” or “of course, the law has to apply to that kind of behavior, it’s common sense,” just doesn’t cut it. It is up to defense attorneys to force zealous prosecutors to articulate why something is criminalized to begin with. Or, in this case, why an exception in the statute should not apply.
The Minnesota Supreme Court went to their dictionary and determined that “past consideration” has two different meanings. The ordinary meaning of the term to the layperson, and a technical legal meaning:
In ordinary, nonlegal speech, the word “consideration” means a payment given as compensation for a good or service. See Webster’s Third International Dictionary of the English Language Unabridged 484 (2002) (defining “consideration,” in part, as “something given as recompense: as . . . payment, reward”); see also The American Heritage Dictionary of the English Language 392 (5th ed. 2011) (defining “consideration,” in part, as “[p]ayment given in exchange for a service rendered; recompense”). “Past;” of course, refers to something that has “existed or occurred in an earlier time.” The American Heritage Dictionary 1290. “A check given for a past consideration” would then refer, according to its common and ordinary meaning, to a check given as payment for something of value received in the past.
As a contractual term of art, however, the phrase “past consideration” has a different meaning. “Consideration” is an act or forbearance that induces a contractually binding promise. See Consideration, Black’s Law Dictionary (10th ed. 2014). But when the act or forbearance was given before the return promise was made, the act or forbearance is called “past consideration.” See id. Because a “past consideration” does not actually induce a return promise, a promise given for “past consideration” is not legally binding.
“Past consideration.” One phrase, two different meanings. If the Minnesota Supreme Court decided that the phrase referred to its ordinary, plain meaning like Miss Schouweiler argued it should, she would go free, because her reimbursement check covered only government services received the previous year. If however, they decided the phrase referred to the technical meaning, the exception would not apply, because payment of your taxes is a statutory, not a contractual relationship.
Unlike the court of appeals, the Minnesota Supreme Court decided the phrase referred to the ordinary, plain meaning and found for Miss Schouweiler. The Court’s decision was based on the fact that they assumed the Minnesota Legislature only intended to criminally punish “the issuance of a worthless check that actually induced the other party to provide a good or service to the issuer of the check.” This makes sense, and is far from producing an absurd result. If you owe money to a person or a business and write a bad check to buy yourself time, it doesn’t change the fact that you still owe the money and person or business can collect. It is a far different situation than the one where someone dangles a check they know is worthless to tempt someone into parting with their goods or services. Although both situations are wrong, the Court concluded that the Legislature has only saw fit to grant one of them with criminal penalties.
Chief Justice Gildea dissented in the case, arguing that property taxes are not paid in exchange for past services, but rather to fund local government, which then distributes the money as it sees fit to benefit the community. Under her interpretation, taxes are collected for the public, not to provide individual services for the person being taxed. But hers was a minority view. The Minnesota Legislature, of course, could change the statutory law to criminalize people in the future who try to buy some time come tax season by writing a bad check. But until they do, the state cannot criminalize behavior they don’t have the authority to do.
If you, or someone you know, is charged with a criminal offense, then contact Ambrose Law Firm, PLLC for a free case review. Phone: 651-800-4842 or email: firstname.lastname@example.org.
Matthew B. Trevor recently graduated summa cum laude from William Mitchell College of Law. There, he was an Assistant Editor on Law Review; participated in Rosalie E. Wahl Moot Court; received awards for the highest grade in his class for Criminal Law and Constitutional Law; and was a William Mitchell Fellow. He also clerked for the Washington County Public Defender’s Office, the Appellate Office for the Minnesota Public Defender, and the United States Attorney’s Office. St. Paul Criminal Defense Lawyer; Federal Criminal Defense Attorney St. Paul; and Minnesota Criminal Defense Lawyer.