IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 111

State of North Dakota, Plaintiff and Appellant

v.

Orin Gedrose, Defendant and Appellee

No. 20200277

Appeal from the District Court of Eddy County, Southeast Judicial District, 

the Honorable Jay A. Schmitz, Judge.

REVERSED AND REMANDED.

Opinion of the Court by Crothers, Justice.

Ashley L. Lies, State’s Attorney, New Rockford, ND, for plaintiff and appellant.

Leah R. Carlson, West Fargo, ND, for defendant and appellee.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JUNE 24, 2021 

STATE OF NORTH DAKOTA
1

State v. Gedrose

No. 20200277

Crothers, Justice.

[¶1] The State appeals from a judgment dismissing its criminal complaint 

against Orin Gedrose after the district court held N.D.C.C. § 6-08-16(1)(d) is 

unconstitutional. The State argues the statute does not violate due process. We

reverse the judgment and remand, concluding the district court erred in 

deciding N.D.C.C. § 6-08-16(1)(d) is unconstitutional. 

I

[¶2] Gedrose was charged with issuing a check without sufficient funds in 

violation of N.D.C.C. § 6-08-16(1)(d), a class C felony. The State alleged on 

October 31, 2017, Gedrose made and delivered to the Peterson Law Office a 

check for $120,000 payable to “Peterson Trust Acc’t,” and the check was 

returned on November 6, 2017, for non-sufficient funds.

[¶3] Gedrose moved to dismiss the charge, arguing N.D.C.C. § 6-08-16(1)(d) 

is unconstitutional under the due process clauses of the Fifth and Fourteenth 

Amendments of the United States Constitution and Article I, § 12 of the North 

Dakota Constitution. He argued the statute is unconstitutional because it 

lacks a mens rea requirement for a violation and it does not qualify as a public 

welfare offense. He also claimed a mens rea element was required because 

innocent conduct could be severely punished. The State opposed the motion, 

arguing the statute is a strict liability offense and the lack of a mens rea 

requirement does not violate due process. 

[¶4] After a hearing, the district court granted Gedrose’s motion to dismiss.

The court stated strict liability criminal laws generally are disfavored, and 

courts have expressed a strong aversion to saddling a person with the severe 

consequences of a felony conviction for what may have been an innocent 

mistake. The court noted a violation of N.D.C.C. § 6-08-16(1)(d) is a felony and 

a felony conviction has life-changing consequences, including imprisonment, 

the inability to travel out of state without permission from a probation officer, 

loss of the right to use firearms for a period of time, and negative economic 
2

consequences. The court concluded due process requires the State to prove 

beyond a reasonable doubt that Gedrose acted with at least some degree of bad 

intent before he can be subjected to the consequences of a felony conviction. 

The court considered federal and North Dakota case law and concluded, in light 

of the severe consequences of a felony conviction, N.D.C.C. § 6-08-16(1)(d) 

violates due process and is unconstitutional. The court dismissed the 

complaint, and judgment dismissing the charge was entered. 

II

[¶5] The State argues N.D.C.C. § 6-08-16(1)(d) is constitutional and the 

district court erred in dismissing the complaint against Gedrose. The State 

contends N.D.C.C. § 6-08-16(1)(d) is a strict liability offense, strict liability 

offenses do not violate the due process clause, and the district court erred in 

finding that the statute punishes a defendant for innocent conduct and that 

the felony penalty is unconstitutional.

[¶6] It is presumed the legislature intended to comply with the federal and 

state constitutions when it enacted a statute. N.D.C.C. § 1-02-38. A statute is 

presumed constitutional “unless it is clearly shown that it contravenes the 

state or federal constitution.” McCoy v. N.D. Dep’t of Transp., 2014 ND 119, ¶ 

27, 848 N.W.2d 659 (quoting Haney v. N.D. Workers Comp. Bureau, 518 

N.W.2d 195, 197 (N.D. 1994)). Any doubt in a statute’s constitutionality must 

be resolved in favor of its validity, when possible. McCoy, at ¶ 27. “Whether a 

statute is unconstitutional is a question of law, which is fully reviewable on 

appeal.” State v. Meador, 2010 ND 139, ¶ 7, 785 N.W.2d 886.

[¶7] Generally, “a defendant must be ‘blameworthy in mind’ before he can be 

found guilty, a concept courts have expressed over time through various terms 

such as mens rea, scienter, malice aforethought, guilty knowledge, and the 

like.” Elonis v. United States, 575 U.S. 723, 734 (2015). Criminal statutes 

generally are interpreted to include mens rea requirements to ensure the 

defendant has a guilty mind. Id. “[A] defendant generally must ‘know the facts 

that make his conduct fit the definition of the offense,’ even if he does not know 

that those facts give rise to a crime.” Id. at 735 (quoting Staples v. United 

States, 511 U.S. 600, 608, n.3 (1994)). Courts generally avoid interpreting a 
3

statute to eliminate the mens rea requirement if doing so “criminalize[s] a 

broad range of apparently innocent conduct.” Staples, at 610 (quoting Liparota 

v. United States, 471 U.S. 419, 426 (1985)).

[¶8] A strict liability offense requires no proof of the defendant’s intent, 

knowledge, willfulness, or negligence for conviction. State v. Olson, 356 N.W.2d 

110, 112 (N.D. 1984). Although strict liability offenses do not contain a mens 

rea requirement, “[s]trict-liability statutes in criminal law do not invariably 

violate constitutional requirements.” Id. “The constitutional requirement of 

due process is not violated merely because mens rea is not a required element 

of a prescribed crime.” United States v. DeCoster, 828 F.3d 626, 634 (8th Cir. 

2016) (quoting United States v. Greenbaum, 138 F.2d 437, 438 (3d Cir. 1943)). 

[¶9] The United States Supreme Court has recognized regulatory crimes or 

“public welfare offenses” without a mens rea requirement may not violate due 

process. See United States v. Freed, 401 U.S. 601, 607-10 (1971). The Court has 

explained with public welfare offenses the accused is usually in a position to 

prevent a violation with “no more care than society might reasonably expect 

and no more exertion than it might reasonably exact from one who assumed 

his responsibilities.” Morissette v. United States, 342 U.S. 246, 256 (1952). The 

court also noted the penalties for public welfare offenses often are relatively 

small and the conviction does not do grave damage to the offender’s reputation. 

Id. We have recognized, “public welfare [statutes], i.e., regulatory measures 

enacted by the legislature under the exercise of the police power, which 

dispense with mental culpability requirements, have generally been upheld if 

the accused is in a position to prevent the offense with no more care than 

society might reasonably expect and the penalty provided is small.” Olson, at 

112-13 (quoting State v. Carpenter, 301 N.W.2d 106, 111 (N.D. 1980)).

[¶10] Issuing a check without sufficient funds is a criminal offense under 

N.D.C.C. § 6-08-16, which provides in relevant part:

“1. A person may not, for that person . . . make, draw, utter, or 

deliver any check . . . for the payment of money upon a bank . . . if 

at the time of the making . . . or delivery, or at the time of 

presentation for payment, if the presentation for payment is made 
4

within fourteen days after the original delivery thereof, there are 

not sufficient funds in . . . the bank . . . to meet the check . . . in full 

upon its authorized presentation. Violation of this subsection is:

. . . .

d. A class C felony if the amount of insufficient funds . . . is 

more than one thousand dollars.

. . . .

4. A notice of dishonor may be mailed by the holder of the check 

upon dishonor or by the holder’s agent or representative upon 

dishonor. . . .

5. An agent acting for the receiver of a check in violation of this 

section may present the check to the state’s attorney for 

prosecution if the holder or the holder’s agent or representative 

mailed a notice under subsection 4.”

[¶11] In State v. McDowell, 312 N.W.2d 301, 308 (N.D. 1981), we held a prior 

version of N.D.C.C. § 6-08-16 did not violate due process when a violation of 

the statute was a class B misdemeanor. This Court said a culpability element 

is not required to violate the statute. Id. at 303. We concluded that it was 

proper for the legislature to enact laws making the violation a matter of strict 

criminal liability without a culpability requirement and that N.D.C.C. 

§ 6-08-16 was a permissible exercise of that power. Id. at 306. We held N.D.C.C. 

§ 6-08-16 is a regulatory statute passed for the public welfare to help facilitate 

transactions in commercial business activities. Id. This Court said it was 

consistent with the purposes of a regulatory statute to allow the imposition of 

a fine or imprisonment for a violation of the offense without offending due 

process. Id. We noted the violation of the statute in that case was a class B 

misdemeanor, the penalty for violating the statute was substantially less than 

the penalty for violating a strict liability offense in certain federal cases, and a 

misdemeanor conviction does not carry the same repercussions of a felony 

conviction. Id. at 307. We held “it is constitutionally permissible to sentence an 

offender to the penalty of a class B misdemeanor for a violation of [N.D.C.C.]

§ 6-08-16.” Id. at 308. 

[¶12] Gedrose contends this case is different from McDowell because N.D.C.C. 

§ 6-08-16 has been amended since 1981 to add enhanced penalties based on the 

amount of the insufficient funds, and here the violation is a class C felony. He 
5

argues N.D.C.C. § 6-08-16(1)(d) is an unconstitutional strict liability offense 

and the lack of a mens rea requirement in the statute violates the due process 

clause. He claims N.D.C.C. § 6-08-16(1)(d) is not a public welfare offense 

because it does not regulate potentially harmful or injurious items, it 

criminalizes innocent conduct, the penalty is severe, and a conviction would 

gravely damage an individual’s reputation. 

[¶13] The State and Gedrose agree N.D.C.C. § 6-08-16 does not contain a mens 

rea requirement and is a strict liability offense. This Court held the violation 

of N.D.C.C. § 6-08-16 is a strict liability offense, the statute does not contain a 

culpability requirement, and the legislature properly exercised its power by 

making the offense a strict liability offense. McDowell, 312 N.W.2d at 306. The 

legislature amended N.D.C.C. § 6-08-16 since McDowell was decided and did 

not add an explicit mens rea requirement. Therefore, we presume our 

interpretation of the statute as a strict liability offense is in accordance with 

their intent. See Rodenburg v. Fargo-Moorhead Young Men’s Christian Ass’n, 

2001 ND 139, ¶ 26, 632 N.W.2d 407 (stating “The legislature’s failure to amend 

language interpreted by the courts is evidence the court’s interpretation is in 

accordance with the legislative intent.”).

[¶14] We also held N.D.C.C. § 6-08-16 is a regulatory statute passed for the 

public welfare “to help facilitate transactions in commercial business 

activities.” McDowell, 312 N.W.2d at 306. We noted the statute is included in 

Title 6 dealing with banks and not Title 12.1 dealing with crimes, which 

indicated the statute is primarily a regulatory standard. Id. We explained the 

use of checks in commercial business activities is a common business practice, 

havoc would be created in the business world if the practice were abruptly 

stopped or curtailed, and it is an activity that needs to be carefully regulated 

because “a violation impairs the efficiency of controls essential to the business 

world as well as to the public welfare.” Id. We held N.D.C.C. § 6-08-16 is a 

regulatory statute passed for the public welfare. Id. We will not reconsider our 

decision on these issues.

[¶15] Courts have said “‘the imposition of severe penalties, especially a felony 

conviction, for the commission of a morally innocent act may violate’ due 
6

process.” DeCoster, 828 F.3d at 633 (quoting United States v. Enochs, 857 F.2d 

491, 494 n.2 (8th Cir. 1988)). A conviction for a violation of N.D.C.C. § 6-08-

16(1)(d) is a felony, which is a severe penalty that may result in serious 

consequences, including imprisonment, and may damage an individual’s 

reputation. See N.D.C.C. § 12.1-32-01(4) (stating a class C felony has a 

maximum penalty of 10 years’ imprisonment and a fine of $10,000). However,

N.D.C.C. § 6-08-16 also includes a notice requirement which makes it unlikely 

a person will be convicted of the offense for innocent conduct. 

[¶16] The plain language of N.D.C.C. § 6-08-16(5) states an agent acting for 

the receiver of the check in violation may present the check to the state’s 

attorney for prosecution if a notice of dishonor was mailed to the person who 

issued the check. The statute requires a notice of dishonor to be sent to the 

person issuing the check without sufficient funds before the drawer may be 

charged with a criminal offense. The notice is required to inform the person 

that the check was returned unpaid because of nonsufficient funds and that he 

has 10 days from receipt of the notice to pay sufficient moneys to pay the 

instrument in full. N.D.C.C. § 6-08-16(4). The notice also may contain a recital 

of the penal provisions of N.D.C.C. § 6-08-16. N.D.C.C. § 6-08-16(4). The statute 

requires the person be given notice and an opportunity to correct potential 

violations before the person can be prosecuted for a violation of the statute. 

[¶17] The notice requirement minimizes if not eliminates the danger a person 

may be prosecuted for innocent conduct, and ensures a person charged with 

violating the statute acted at least recklessly. See United States v. Apollo 

Energies, Inc., 611 F.3d 679, 682, 691 (10th Cir. 2010) (holding the Migratory 

Bird Treaty Act was a strict liability crime and due process required

defendants proximately caused harm to the birds and have adequate notice

their conduct is a violation; and affirming conviction of defendant who had 

notice); Agnew v. Government of the District of Columbia, 920 F.3d 49, 61 (D.C. 

Cir. 2019) (holding anti-obstructing statute did not violate due process for lack 

of a mens rea requirement because the provision requiring the officer instruct 

the person to move on before arresting for a violation ensured that anyone 

arrested had a willful state of mind).
7

[¶18] Section 6-08-16(1)(d), N.D.C.C., enjoys a presumption of 

constitutionality, and Gedrose has not established it violates due process and 

is unconstitutional. The district court erred in concluding N.D.C.C. 

§ 6-08-16(1)(d) is unconstitutional and by dismissing the charge against 

Gedrose. We reverse the district court’s decision concluding N.D.C.C. 

§ 6-08-16(1)(d) is unconstitutional and dismissing the complaint. 

III

[¶19] We reverse the judgment and remand.

[¶20] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte