State Constitutional Equal Protection Challenge to Check Statutes Fails

State v. Cox, Minn.S.Ct., 6/15/2011.  Ms. Cox wrote five checks to various businesses in Benson, Minnesota.  All told, the checks were for $515.83.  The bank sent the checks back to the respective businesses, saying there were insufficient funds available to honor them.  The businesses in turn each sent Ms. Cox a letter demanding payment of the dishonored check; they got no response. 

The state then charged Ms. Cox with issuing dishonored checks, Minn.Stat. 609.535, subd. 2(a)(1).  This statute prohibits a person from “issu[ing] a check which, at the time of issuance, the issuer intends shall not be paid.” The statute also says that among the ways that intent may be shown is by proof that at the time of issuance, the issuer had insufficient funds with the bank and the issuer failed to pay the check within five business days after a notice of nonpayment was mailed.  If the value of the checks is more than $500.00 the penalty is a felony.

Seems simple enough until you learn that there’s another statute that applies to Ms. Cox’s check spree.  It’s the theft by check statute, Minn.Stat. 609.52, subd. 2(3).  You can violate that statute by 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.”  A “false representation” includes issuing a check knowing that you were not entitled to issue it.  The penalty for violating this statute is a gross misdemeanor.

Ms. Cox didn’t think it was quite fair for the state to have chosen the statute with the felony penalty instead of the statute with the gross misdemeanor penalty so she made a state constitutional equal protection argument.  To prevail, she had first to 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.”).  The Supreme Court said, with two dissents, she didn’t make that showing.

So, what’s the difference?  The two statutes don’t prohibit the same conduct.  Each requires that you write a check, but they have different mental states.  Moreover, the court didn’t think that Ms. Cox could support a conviction for theft by check because of a lack of proof of intent to defraud any of the merchants at the time she wrote the checks.