State v. Mathisen

summаry judgment First, a motion opposing party at on the served

must be the time fixed for days prior to ten

least 56(e), An N.D.R.Civ.P. hearing. Rule the that no record reveals of the

examination Temme given in this case.

notice was Cf. Traxel, 102 N.W.2d v.

Second, for summa party the who moves showing the burden of judgment has

ry any as to genuine is no issue

that there party is entitled fact and that

material matter of law. Roll v. judgment as a (N.D.1983). In this Keller, 336 N.W.2d stipulated to the value

case, parties tenancy by joint held in property Elsie, hás held and this Court

Louis may alone of the transfers

that the amount for a circumstances be sufficient

in some the intent that of fact

trier find testamentary pro in lieu of a be transfers Thus, II, re supra. See Knudsen vision. proof, ‍‌‌​​‌‌​​​‌​​​​‌‌‌​​​‌​‌‌​​​​‌​​‌‌‌‌​​‌​​‌‌​​​​‌‌‍of whо had burden gardless required to have been trial court would finding regarding fact Elsie’s

make solely on a matter of law based intent as stipulation which would parties’ pro summary judgment improper I, The trial

ceeding. supra. See Knudsen refusing grant Louis’ did not err summary judgment.

motion for judgment is affirmed.

Accordingly, the GIERKE,

ERICKSTAD, C.J., PED- WALLE, JJ., concur. and VANDE

ERSON Dakota, Plaintiff

STATE Appellee, Mathisen, MATHISEN, a.k.a. Robert

Bob Appellant. Defendant and 995 to 1001. Nos. 987

Cr. Dakota. of North

Supreme Court

Oct.

SAND, Justice. appealed judg- Robert 0. eight of of ments conviction counts issu- ing checks funds and without sufficient judgment finding him in from amended contempt for to comply failure with the judgment. conditions After the appeal was taken Mathisen filed a motion vacate the to convictions and dismiss the on the appeal basis that NDCC amended in as was declared unconsti- Fischer, tutional State 349 N.W.2d 16 leading appeal The events to this cover a lengthy span encompass of time and a host hearings intertwining judicial and ac- County tions Stark court. This case June commenced on 6 1981 with a criminal complaint charging issuing Mathisen with totaling checks two suffi- $200.00 without cient funds in violation North Dakota § Century Code 6-08-16. Mathisen’s trial set for 23 he October 1981 but failed appear court and the issued warrant for his arrest. later, year January

Over one on 17 pursuant Mathisen was arrested to the personal warrant and then released on re- pending cognizance appear- his next court appear ance. Mathisen failed to аt his hearing shortly thereafter was arrest- on a bench warrant. On 4 March 1983 appeared without counsel pleaded guilty issuing two counts of a check without sufficient funds. The accepted plea court and sentenced twenty days Mathisen to in jail, with ten days suspended on the pay condition he restitution in costs before $200 $100 April 1983 and have no criminal convic- year. pay tions for one Mathisen failed May the restitution оr costs. On 4 1983 he pursuant appeared before the to an Mehrer, Atty., K. State’s Dickin- Owen why to show cause he order com- son, plaintiff appellee; argued by for plied judg- with the terms the criminal Hilden, Atty., L. Asst. State’s Dic- Ronald The hearing ment. order show cause kinson. was continued twice allow Mathisen to Gion, Regent, finally secure counsel and was D. for defendant scheduled James appellant. June 1983. foregoing At the trial defense was Contemporaneously with the Mathisen’s sole events, February 1983 and testimony issuing eight between when charged by the March Mathisen was impression under there checks he was County attorney with Stark state’s funds deposited were sufficient in his ac- issuing check sufficient without counts July deposited count. 1979 Mathisen 6-08-16. On funds violation NDCC $4,100.00 cashier’s check for in this ac- ap- of May 17 at one numerous his Shortly payment count. the thereafter on the on these pearances before court stopped. cashier’s cheek was Mathisen tes- counsel, Mathisen, waived charges, without payment tified he was unaware could be was then right jury his to a trial. Mathisen stopped court on cashier’s check. The 1983 for appear on 30 June instructed to guilty eight found Mathisen on all counts show cause his and on the order to trial of issuing a check sufficient funds without the scheduled for hearing, which had been days jail and sentenced him to in on each 30 appear on 30 Mathisen failed to day. same counts, eight days suspended of the with 15 again an arrest war- June 1983 and once making on each count upon conditioned his rant was issued. restitution, $328, paying full costs of and appearance the next before Mathisen’s reimbursing Stark of County for the fees County approximately occurrеd Stark court court-appointed attorney, by 1 his all Octo- December six and a half months later on 9 The court that ber 1984. further ordered following his arrest.1 A date was set period of in Mathisen’s confinement Stark resched- for trial and then was Mathisen’s any run County concurrently was to with court-appointed requested uled he after period of confinement in South Da- served appointed Heth to William counsel. At his order to show kota. charges, represent Mathisen the check hearing in con- cause Mathisen was found cause, the and on the extra- order to show failing any to tempt comply for with condi- dition matter.2 previous judgment criminal and tions Mathisen, January represent- On 10 jail, in days the court sentenced him to 10 Heth, County appeared in Stark concurrently prior to be served with charges.3 court on the check for his trial sentence, costs and ordered restitution and trial, day re- On the at Mathisen’s paid. to be The quest, jury Heth moved for a trial. Mathisen, se,4 acting pro subsequently denying court the motion held that Math- post-conviction for filed a series motions isen, fully being after advised of his consti- denied County The Stark court relief. knowing intelli- rights, made a tutional trial, ‍‌‌​​‌‌​​​‌​​​​‌‌‌​​​‌​‌‌​​​​‌​​‌‌‌‌​​‌​​‌‌​​​​‌‌‍change motions for a new Mathisen’s gent jury his trial oral waiver of venue, judgment, arrest of and twice open May The court court on 1983. for cor- rejected petition writ habeas that Mathisen had numerous further noted petitioned pus. also this Court Mathisen significant period of opportunities and a corpus was denied. for habeas relief which request time trial failed to do to but County Mathisen’s granted The court so. Stark arrest, opposed Dakota extradition to South resided in 3. Mathisen 1. Prior to his Mathisen had during charges Oregon Apparently for several months. to his trial on the check by Oregon custody this arrested authorities time he was be held in court ordered charges extradition answer held for County pending to South Da- extradition Stark pending in South Dakota. Mathisen had been pursuant to NDCC § kota 29-30-02. by Oregon his own re- released cognizance authorities on attend his funeral mother’s motion, January upon his 4. On 13 he was Dakota when arrestеd. represent- Heth to court allowed withdraw subsequently appoint- ing The Mathisen. Following September 2. Mathisen’s arrest on separate attorneys represent Mathi- ed three County a demand the Stark court received allowed three to withdraw. sen and then all Dakota for extradition of from South appointed then and remains James Gion was County, charges pending Butte for to stand appeal. counsel this Mаthisen’s South Dakota. wealth. The stay of execution the sen- criminated on the basis of motion for upon posting only of a those tence defendant claimed individu- conditioned Mathisen, $1,000 post satisfy upon bond. unable to als unable to the NSF check cash bond, unsuspended prosecuted served the entire notice of dishonor were subsequent- therefore, portion jail impermissibly sentence 6-08-16.2 bur- i.e., individuals, Dakota. ly indigеnts, to South On 18 dened some was extradited court-appointed May burdening similarly Mathisen’s coun- while not others situ- ated, i.e., seeking Court financially sel filed a motion issuers of NSF checks pay convictions and dis- able to the holder notice of vacate Mathisen’s after dis- appeal. honor. miss this appeal Carpenter

The defense its motion The Court determined that in following equal protection statutory raised the issues: claims criminal require classifications based wealth Fischer, 349 N.W.2d 16 State v. Does judicial an intermediate standard of review. § (N.D.1984), NDCC which declared 6-08- Carpenter, supra Applying at 110. that unconstitutional, require this 16 Court to above-quoted standard Court this held the vacate the convictions? § language equal of 6-08-16.2 pro- violated pos- that he a defendant’s belief Is tection: a valid defense sessed sufficient funds in preventing “While the state interest § 6-08-16? NDCC the issuance of nonsufficient fund checks effectively 3. Did Mathisen waive his important, is the classification based to á trial? upon ability pay of a defendant by implication contended that Mathisen prose- an defense affirmative to criminal (N.D Carpenter, N.W.2d State v. 301 106 cution substantially is not related to that Fischer, .980) Thus, and State v. N.W.2d 16 interest. the classification based (N.D.1984), holding necessitate North Da equal of wealth constitutes a denial § 6-08-16, Century as in kota Code effect protection Carpenter, therefore, § 1981, in 6-08-16.2, unconstitutional as violative of the N.D.C.C., constitutionally is Equal Protection Clause of Fourteenth infirm.” 301 N.W.2d at 110. States Amendment the United Constitu Fischer, supra, Subsequently, the rea- §§ 22, tion, I,Art. of the soning Carpenter applied of was to deter- Dakota Constitution. mine by that NDCC as amended § (S.L. In 6-08-16.2 Carpenter, (S.L.1983, NDCC Legislature 116), the 1983 Ch. 1977, 77) as violating Ch. was attacked еqual protection. also violated NDCC § equal protection. per- 6-08-16.2 Section provided part: amended 6-08-16 as tained to instances when the issuance of a “A of by notice dishonor must be sent (NSF) check nonsufficient funds constitut- upon dishonor, the holder check felony. a class C 6-08-16.2 re- Section pro- to the institution of a criminal quired the holder of an check to send NSF ceeding, substantially the notice to be in informing written notice to the drawer following Payment form: ... to hold- him the check had dishonored and been instrument, er of the face amount of the demanding payment days. ten within Sec- plus costs, any collection fees or not ex- specifically provided part: tion 6-08-16.2 ceeding dollars, the additional of ten sum pays if the the holder

.. drawer of shall constitute defense criminal thirty days brought charge paid the instrument within after if hereundеr within payment of receiving days receipt written notice ten ... notice of that constitute fact shall affirmative dishonor.” prosecution to a criminal defense under language The Fischer Court held this this section.” § substantially 6-08-16 was identical to the argued language in Carpenter The defendant that declared unconstitutional in Car § § 6-08-16, unconstitutionally penter. by its NDCC 6-08-16.2 dis- NDCC way in such a so as result amendments, equal pro was enforcеd therefore violated creating a based on held tection classification in the same wealth-based classification relationship to with no substantial Carpenter wealth impermissible Fischer. Fischer, su any important state interest. attorneys claimed that state’s in- pra at 18. formally insisted a notice of dishonor be prior the issuance of a criminal com- § sent 6-08-

Mathisen contended that NDCC plaint prosecution and that there no was 1981, language in effect in contained as § payment under 6-08-16 if made to la- substantially equivalent to the statutes effect, Carpenter argued the holder. declared unconstitutional ter § and, therefore, implication and Fischer selec- violations 6-08-16 However, the equally is unconstitutional. tively prosecuted basis wealth. § 6-08-16 language of the 1981 version statutory prosecution Selective if significantly dissimilar to based unconstitutional Car- provisions upon improper declared motives can violate constitu statutes, those Unlike penter Fischer. guarantees equal protection. Oy tional § holder to require not 6-08-16 did Boles, ler v. 368 U.S. S.Ct. notice of to the drawer written send (1962). However, L.Ed.2d 446 en selective Instead, demanding payment. dishonor forcement in and of itself is a constitu the holder the merely 6-08-16 accorded Oyler, supra; tional violation. State signifi- notice. More option to send such Knoefler, 325 N.W.2d 192 To statutory defense of cantly, the affirmative ‍‌‌​​‌‌​​​‌​​​​‌‌‌​​​‌​‌‌​​​​‌​​‌‌‌‌​​‌​​‌‌​​​​‌‌‍support prosecution a defense of selective impermissible Carpenter payment found defendant must establish that other individ § totally 6-08- was absent and Fischer similarly generally not uals situated have § effect, sending permitted In 6-08-16 prosecuted and that the State’s selec been demanding payment, a notice dishonor prosecution is or tion of him for invidious legal did not set out the ramifications but faith; is, that constitu bad based payment. of such impermissible considerations such tionally the statutes declared uncon Unlike Knoefler, supra. See as wealth. Fischer, the Carpenter stitutional that the 1981 version We conclude § makes no classi 1981 version of 6-08-16 § does not violate the constitution- 6-08-16 merely on the bаsis of wealth. It fication equal protection. An ear- guarantees al require, a notice of permits, but does § 6-08-16, under which lier version of sent, dishonor to be nor does occurred, prior convictions Mathisen’s two an affirmative defense. payment constitute ver- substantially similar to the 1981 was § Simply put, the 1981 version of 6-08-16 § passes and therefore also sion of 6-08-16 any statutory not make classification does muster. constitutional equal protec and therefore does not violate Hatch, that on its face. See v. 346 contended his belief tion State Mathisen also outstanding satisfy N.W.2d sufficient to funds deposit on constituted a de- checks were § However, merely because 6-08-16 § 6-08-16. In 1979 Mathi- fense to NDCC it immune on its face does not make is valid $4,100 in his from a deposited account sen grounds equal pro challenges on Shortly pay- check. thereafter cashier’s may facially A neutral statute vio tection. stopped check was ment on the cashier’s application equal protection its or late this. Never- Mathisen was aware of v. Board Education effect. Crawford theless, payment that Mathisen claimed 527, 102 City Angeles, 458 U.S. Los of S.Ct. legally check could not be a cashier’s 3211, (1982). Never 73 L.Ed.2d eight he issued the stopped that when showing that made no thelеss Mathisen later, he years § checks almost four impermissible an wealth- 6-08-16 created mistaken, innocent, yet belief under the application or ef in its classification based § funds from the cashier’s check were that 6-08-16 that fect. Mathisen contended deposited alleged separate in his ap- still account sufficient waiver. At two pearances signed Mathisen checks. a statement of cover rights aсknowledging form had he been may though he errone Even read and understood his constitutional check be the ously deemed a cashier’s rights. At both appearances of these equivalent of a certified check he neverthe represent- Mathisen stated his desire to be payment on knowledge that less he counsel that would retain an stopped. alone cashier’s check was This attorney. Subsequеntly, when Mathisen al- checking put him on that his account notice legedly appeared made his waiver he with- proceeds of the cashier’s did not have the counsel, having out retain unable respect facti position check. His this is attorney. following At that time the tious. colloquy between the court open occurred in court: making argument In Now, “THE COURT: ... Mr. Mathi- essentially good-faith defense to asserted sen, you yоu do know whether or not § However, of 6-08-16. v. violations State by jury desire a trial in each of these McDowell, (N.D.1981), N.W.2d 301 matters? 318, U.S. den. 459 S.Ct. cert. “A. I don’t necessary. think that’d be (1982), clearly L.Ed.2d 294 established “Q. time, then, § You are at this waiv- liability It as a strict offense. is 6-08-16 ing by jury? a trial immaterial whether or not Mathisen had an “A. Yes. impression erroneous innocent that there deposit. “Q. were sufficient funds on He knew each cases ... stop payment was made on the cash that a correct? hold

ier’s check. To otherwise would im “A. Yes. plicitly “good allow such faith” defenses to “Q. Very well, accept I will your ” emasculate the enforcement and effect of by jury waiver of trial .... Balint, 6-08-16. See United States Clearly, preroga Mathisen had the 258 U.S. 42 S.Ct. 66 L.Ed. 604 to a jury tive waive trial. Ex (1922). 555, parte Kortgaard, 66 N.D. 267 N.W. However, merely because 6-08-16 is a (1936). However, 105 A.L.R. 1107 the liability strict offense does not leave an “voluntary, have a waiver must been know charge accused without defenses to the ing, intelligent and decision with done suffi issuing a check without sufficient funds. cient awareness of the relevant circum defenses, availability likely consequences.” The affirmative stances and State v. Kranz, (N.D.1984). 12.1-05, e.g., see Ch. 353 N.W.2d 748 NDCC creates the mitigate 23(a) Dakota Rule of Criminal opportunity possible to the Procedure harsh- acknowledges right: imposed by ness a criminal stаndard of liability. See Carpenter, supra strict at by jury “Trial shall be in all cases as this instance Mathisen raised no by provided law unless the defendant instead, affirmative defense relied jury writing waives a trial in in open or upon defense; the good-faith existence of a approval court with the of the court and acknowledge. a defense to we have refused prosecuting consent of the attorney.” Therefore, argument we find this without Thus, 23(a), as NDRCrimP inter merit. Kranz, preted supra, out sets three Lastly, Mathisen asserted he did val- not requirements necessary for a valid waiver. right idly jury to a trial First, waive his because the accused make “voluntary, must a alleged at the the time of waiver he was knowing, intelligent” and waiver either in the assistance of counsel. It is not writing open Second, without prose or court. the disputed cuting attorney that Mathisen had informed must consent to the waiver rights and, third, to of his constitutional the assistance approve. the court must Clear jury approved a ly, judge counsel and trial to his the of Mathisen’s waiv- pros- if previously right fails to indicate the Mathisen had waived his er. The record attorney affirmatively consented to ecuting jury to a trial and since that time he had However, waiver. the issue of the opportunities the numerous requеst jury to a prosecuting attorney’s consent was not trial and to do so. important failed It is to in the trial court raised Mathisen requested note that when Mathisen jury a consequently it will not be considered an jury panel trial a had not been summoned Binstock, appeal. issue on Kilzer v. and, therefore, granting request would N.W.2d 569 continuing entailed the trial order Also, empanel jury. the State had is, therefore, final The determination аrranged the attendance of nine witnesses or not Mathisen’s waiver was a whether who would have had to be recalled if the voluntary, knowing, intelligent deci trial were continued. The court was aware jury pre the sion. Trial normal that Mathisen’s trial on these matters had fact-finding in criminal ad ferred mode repeatedly been continued either at Mathi- Kranz, judications. supra. Because of request sen’s or because of his failure to importance jury trials the attached appear. Circumstances such as these could waiver, court, approying a trial before disregarded by not be the trial court voluntary, it was know must be satisfied considering request jury Mathisen’s for a Kranz, ing, intelligent. supra. Such trial to his valid waiver of that depend upon unique cir determinations right. cumstances of each case. Adams v. Unit McCann, 317 U.S. ed States ex rel. Following the denial of re- Mathisen’s (1942). L.Ed. 268 The fact S.Ct. quest jury for a trial he admitted made his that Mathisen waiver without issuing clearly checks. It was disposi- assistance of counsel is not itself present- established that at the time of the of the issue. The United States Su tive ment he had insufficient funds his ac- preme has held an accused can valid Court count. Mathisen’s entire defense rested ly right jury trial waive his without good-faith the existence of a defense Adams, supra. benefit of counsel. The a defense which did NDCC simply counsel is one of the absence of legally present not not exist. did finding voluntary, factors relevant to any any facts to affirmative de- establish Adams, knowing, intelligent waiver. and, therefore, fenses no uncontroverted

supra. Consequently, facts existed. the denial of request jury for a trial Mathisen’s ‍‌‌​​‌‌​​​‌​​​​‌‌‌​​​‌​‌‌​​​​‌​​‌‌‌‌​​‌​​‌‌​​​​‌‌‍properly apprised by Mathisen was erroneous. the court of his trial. He

appeared in court without counsel on his opinion, stated in the For the reasons duly own volition. The trial court obtained are affirmed. judgments of the trial court express record Mathisen’s state specifically indicating ments his waiver of a C.J., ERICKSTAD, and GIERKE and jury trial. Given these facts the trial court WALLE, JJ., concur. YANDE determining was not in error in PEDERSON, Justice, voluntarily, knowingly, intelligently concurring in the jury his trial. waived results. my all view versions “bad

Additionally, сonclude the trial we I check” law have valid. did not request for a court’s denial Mathisen’s majority in trial, immediately preceding agree Fischer nor jury his trial with waiver, accordingly, accept I do not Carpenter; valid did not upholding reasons for the 1981 constitute error under the circumstances of the stated I day of his trial Mathi- NDCC. cannot en- this case. On version counsel, court-appointed at Mathi- vision a bad chеck law that is not based sen’s insistence, principle that checks can be requested a trial. writ- sen’s holding only by people who funds. That request denied the ten have The court is, course, principle basic “discriminato-

ry” against people who no It funds. Creating

is not after-the- “invidious.” distinguishing method of errors in

fact bal-

ancing checking “passing account from proper objective is a

rubber checks”

legislative action and our entire ‍‌‌​​‌‌​​​‌​​​​‌‌‌​​​‌​‌‌​​​​‌​​‌‌‌‌​​‌​​‌‌​​​​‌‌‍commercial dependent upon

system it. TOWNSHIP, Bilodeau

SYKESTON

Township, Township Johnson Township, Nest

Hawks Plaintiffs

Appellees, COUNTY,

WELLS Defendant Appellant. No.

Civ. 10655.

Supreme Court North Dakota.

Oct. Aljets,

Thomas J. Carrington, plain- appellees; argued tiffs and by Thomas J. Aljets, Carrington.

Case Details

Case Name: State v. Mathisen

Court Name: North Dakota Supreme Court

Date Published: Oct 23, 1984

Citation: 356 N.W.2d 129

Docket Number: Cr. 987 and 995 to 1001

Court Abbreviation: N.D.