By Nick Thornton and Joel Fremstad
Have you ever been told by the police or an attorney that something you think is a criminal matter, they think is a civil matter? Recently, the North Dakota Supreme Court told a district court the matter was at least potentially criminal and instructed the court to have a trial.
As Caroline Conrad’s mother grew older, she did what many elderly persons do to make sure their financial affairs are taken care of: opened a joint checking account with her adult daughter. Conrad’s mother was listed as the “member” and Conrad was listed as the “joint owner.” Over time, Conrad’s mother’s health and mental faculties deteriorated. She suffered from a heart condition and a brain tumor. She began experiencing significant memory loss symptoms. At the same time, Conrad started withdrawing large sums of money from the joint bank account totaling more than $450,000. When this came to light, the State charged Conrad with theft of property and exploitation of a vulnerable adult.
Conrad requested a contested preliminary hearing. While the judge found probable cause for the charged offenses, the judge also suggested Conrad bring a motion to dismiss the charges based on the “civil dispute doctrine.” The civil dispute doctrine—an extremely rare and unusual defense—results in the criminal case being dismissed and a civil case being initiated. The civil dispute doctrine arises in two situations: (1) there is a legitimate dispute about a unique issue of property, contract, or civil law upon which an element of the charged offense turns; or (2) there is a legitimate dispute about an issue traditionally and more appropriately settled in a civil forum. In Conrad’s case, the judge concluded the second situation did not apply, but the first situation did. That is, the judge decided that the property stolen must belong to someone else. He reasoned that since putting money into a joint account belongs to both co-owners of the account, it really isn’t theft. The judge also concluded that there were legitimate issues on whether Conrad’s mother intended to create an “inter vivos gift” of the money to Conrad. Consequently, the judge dismissed the charges against Conrad.
The State appealed, arguing the district court made a mistake in applying the civil dispute doctrine. The Supreme Court first walked through whether a defendant can be charged with theft for taking money from a joint account. The Supreme Court’s analysis turned on whether the money in the account was “property of another.” The Court recognized that while this issue is treated differently in other jurisdictions, North Dakota law defines “property of another” to include “property of in which the actor is not privileged to infringe without consent, regardless of the fact that the actor also has an interest in the property.” The Court focused on the last clause. For the charges to stick, the State must prove Conrad didn’t have a privilege to withdraw the funds without consent and that Conrad lacked consent to withdraw the funds. Conrad argued she had consent, which is why the district court judge concluded the there was a legitimate dispute over an issue traditionally belonging in civil court and that civil dispute doctrine applied.
Next, the Supreme Court analyzed the application of the civil dispute doctrine in this case. The Supreme Court acknowledged there was not a clear analytical framework from its previous cases. The Court walked through the reasoning and results of the three cases where the dispute doctrine was applied, and the three cases in which the civil dispute doctrine was held not to apply. The Court concluded “the common thread in our decisions granting relief under the civil dispute doctrine is that the ‘legitimate dispute’ on a ‘unique’ issue of civil law impacted the public in general, rather than only the defendant and alleged victim in the criminal case.” In applying that framework to Conrad’s case, the Court noted there were no unique circumstances regarding the legal requirements of inter vivos gifts. The Court noted that the dispute here did not impact the public in general, but rather only Conrad and her mother. Finally, the Court also noted that donative intent issue was simply an issue of fact for the judge or jury to decide at a later time. Consequently, the Court concluded the civil dispute doctrine didn’t apply in this case. The Supreme Court reversed the dismissal and sent the case back down to the district court for trial.
The case is State v. Conrad, 2017 ND 79
So what does this mean to you when you believe you have been wronged? In practice we have many clients that come to us and believe that something is criminal and what should they do. For example, if a customer doesn’t pay or money is taken, is that criminal or civil. The answer is that it depends and in fact it can be both. As a practical matter, often times we see that a criminal prosecutor in a business or family dispute may not press charges if they see the wronged party has an attorney and as such can take the matter to civil court. Given the Conrad case, however, we believe that such deference should occur less often. That said, the Conrad case does not reverse the concept that criminal prosecutor’s have discretion as to what to charge and limited resources to pursue certain kinds of remedies. In addition, a criminal charge may not get you your money back or appropriate damages.
If you feel you have been wronged, Fremstad Law can help advise you as to an appropriate strategy that may include civil litigation or assistance in bringing your matter to the attention of criminal prosecutor’s or a combination of both. If you have questions, contacts us at 701-478-7620.
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