of Appeals Office of Appellate Courts
Swanson, Minnesota Attorney General, Saint Paul, Minnesota;
and Karen S. Kelly, Wabasha County Attorney, Jacob J. Barnes,
Assistant County Attorney, Wabasha, Minnesota, for
D. Metzger, Metzger Law Firm, LLC, Minneapolis, Minnesota,
Chutich, J. Dissenting, Gildea, C.J. Took no part, McKeig, J.
exception in the dishonored-check statute for "a check
given for a past consideration, " Minn. Stat. §
609.535, subd. 5 (2014), applies to any check given for goods
or services received in the past.
check is issued for "a past consideration, " Minn.
Stat. § 609.535, subd. 5, when the issuer received any
goods or services in the past, even if some goods and
services will be received in the future.
Kristyn Nicole Schouweiler was charged with felony issuance
of a dishonored check, Minn. Stat. § 609.535, subd. 2
(2014), when her check for past-due property taxes was
returned for insufficient funds. The district court dismissed
the criminal complaint, concluding that Schouweiler's
check met the statutory exception for "a check given for
a past consideration, " id., subd. 5 (2014).
The court of appeals reversed, and Schouweiler petitioned for
review. We conclude that "a check given for a past
consideration" means a check given for a good or service
that was received in the past. Because Schouweiler's
check for past-due property taxes was given, in part, for
government services provided in the previous year, her check
was "given for a past consideration." Accordingly,
we reverse the decision of the court of appeals.
February 2015, Schouweiler issued a check in the amount of
$1, 969.07 to the Wabasha County Auditor/Treasurer for
past-due property taxes payable in 2014. The check was not
honored by Schouweiler's bank, which returned it for
insufficient funds. The County Auditor/Treasurer mailed a
notice to Schouweiler, informing her that she had 5 days to
make a valid payment, but she failed to do so.
was charged with issuance of a dishonored check, Minn. Stat.
§ 609.535, subd. 2. Schouweiler challenged the probable
cause underlying the complaint and moved to dismiss it,
arguing that her check fit within the statutory exception for
"a check given for a past consideration, "
id., subd. 5. After a hearing, the district court
dismissed the criminal complaint, holding that
Schouweiler's check for past-due property taxes was
"a check given for a past consideration, "
id., because there was no contemporaneous exchange
of goods or services for the check. It reasoned that the
purpose of the dishonored-check statute was "to protect
the person who would not have given the goods to the
defendant but for the contemporaneous delivery of the
court of appeals reversed. Observing that the phrase
"past consideration" has a special meaning in
contract law, the court of appeals held that the
past-consideration exception "refers to a promise to pay
that is unenforceable for lack of adequate
consideration." State v. Schouweiler, No.
A15-1461, 2016 WL 102578, at *2-3 (Minn.App. Jan. 11, 2016).
Because Schouweiler wrote the check to fulfill a statutory
obligation to pay taxes, and not to honor an unenforceable
contractual obligation, the court of appeals concluded that
the check was not "given for a past consideration."
Id. at *3. Schouweiler sought review by this court,
once again contending that her issuance of a check for
past-due property taxes was "a check given for a past
consideration." We granted review.
begin with an overview of the statute. The dishonored-check
statute provides: "Whoever issues a check which, at the
time of issuance, the issuer intends shall not be paid, is guilty
of issuing a dishonored check." Minn. Stat. §
609.535, subd. 2. But the Legislature created exceptions to
the dishonored-check statute: "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." Id., subd. 5.
sole contention is that her check was "given for a past
consideration" and is therefore subject to the exception
in the dishonored-check statute. To resolve this issue, first
we must decide whether the phrase "past
consideration" has a plain or technical meaning. Then we
must decide whether a check given to pay a property tax
obligation is "given for a past consideration."
begin with the phrase "past consideration."
Schouweiler argues that "past consideration"
plainly refers to a valuable good or service that the check
issuer received in the past. Quoting a Wisconsin Court of
Appeals decision that interprets a dishonored-check statute
nearly identical to Minnesota's statute, Schouweiler
argues that the past-consideration exception includes
"checks given either for services already performed or
for goods already received." See State v.
Archambeau, 523 N.W.2d 150, 151-52 (Wis. Ct. App. 1994)
(quoting 66 Op. Wis. Att'y Gen. 168, 174 (1977)).
State contends that the phrase "past consideration"
is a contractual term of art. Because Schouweiler's tax
payment arises from a statutory obligation, not a contractual
one, the State argues, her check could ...