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State v. Schouweiler

Supreme Court of Minnesota

November 16, 2016

State of Minnesota Respondent,
v.
Kristyn Nicole Schouweiler, Appellant.

         Court of Appeals Office of Appellate Courts

          Lori Swanson, Minnesota Attorney General, Saint Paul, Minnesota; and Karen S. Kelly, Wabasha County Attorney, Jacob J. Barnes, Assistant County Attorney, Wabasha, Minnesota, for respondent.

          Drake D. Metzger, Metzger Law Firm, LLC, Minneapolis, Minnesota, for appellant.

          Chutich, J. Dissenting, Gildea, C.J. Took no part, McKeig, J.

         SYLLABUS

         1. The 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.

         2. A 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.

         Reversed.

          OPINION

          CHUTICH, Justice.

         Appellant 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.

         I.

         In 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.

         Schouweiler 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 check."

         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.

         II.

         We 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[1] 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.

         Schouweiler's 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."

         A.

         We 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)).

         The 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 ...


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