concurring and dissenting.
Under the present practice in Cass County, violation of NDCC § 6-08-16 remains a crime of failure to make satisfaction of a debt and the practice is therefore unconstitutional. I therefore dissent from that part of the majority decision that affirms the conviction of Schmitz.
In State v. Ohnstad, 392 N.W.2d 389 (N.D.1986), we held that the practice of sending a notice to a bad-check writer and prosecuting, in effect, only those who did not pay after receiving notice was unconstitutional. We recognized that what was being done was no different than what was provided for in the statutes that we held to be a violation of equal protection under the fourteenth amendment to the United States Constitution in State v. Carpenter, 301 N.W.2d 106 (N.D.1980); and State v. Fischer, 349 N.W.2d 16 (N.D.1984), namely, making payment an affirmative defense so that the crime was one for not paying rather than one for writing a bad check.
In Ohnstad the evidence was that 95% of those prosecuted in Cass County were individuals who did not pay the amount of the check after receiving notice to pay up or face prosecution. In this case, the state’s attorney declined to give a percentage but candidly admitted that the “vast majority of cases prosecuted were against those who received notice and did not pay.” Nor had he personally ever charged a person who had paid. He testified that his office had attempted to place “more of a burden on the local merchants to be more and more restrictive in the manner in which we allow them to prosecute that multitude of potential bad checks through our office.” He conceded that only a small percentage of the 1200 bad-check cases annually prosecuted involved those who had not received a notice. It seems clear to me that NDCC § 6-08-16 is still being enforced against those who do not pay just as it was in Ohnstad. In Cass County, payment remains an affirmative defense and the crime remains one for not paying a debt rather than one for writing a bad check.
The only difference between Ohnstad and this case is that in response to Ohns-tad, the Cass County state’s attorney directed local merchants to send out the notices themselves. The question becomes whether the state’s attorney’s reliance on local merchants makes the present practice constitutional. I think not.
As a framework for my analysis I rely on fourth amendment search and seizure cases, where a private citizen may become an agent or instrument of the state so as to make private conduct subject to the federal constitution’s limitations on state action, in particular, the fourth amendment. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Whether such agency exists depends on a variety of factors including: 1) whether the state directly or indirectly encouraged or partid-*310pated in the challenged conduct; 2) whether the state, knowing that the challenged conduct was occurring, did nothing to prevent it; 3) whether the challenged conduct was intended to assist law enforcement officials or to further some other end; and 4) whether law enforcement officials themselves could have undertaken the conduct without violating the defendant’s fourth amendment rights. State v. Coy, 397 N.W.2d 730 (Iowa 1986), reversed on other grounds, Coy v. Iowa, — U.S. —, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). See also United States v. Feffer, 831 F.2d 734 (7th Cir.1987); United States v. Koenig, 856 F.2d 843 (7th Cir.1988); State v. Mathews, 216 N.W.2d 90, Syl. 12 (N.D.1974).
As to the first two factors, the testimony unambiguously establishes that, following Ohnstad, the Cass County state’s attorney’s office required and expressly encouraged the merchants to send out notices before prosecution would be undertaken. The state’s attorney’s office held a meeting for merchants where sample notice forms were provided and merchants were “strongly encouraged” to send out notices before complaining of a statutory violation. One representative of a merchant testified that she had attended an informational meeting conducted by the state’s attorney’s office on the procedures and was informed that “we’d have to send out the notice first.” When asked if there had ever been a bad check prosecution where there was no notice sent, she replied, “Not to my knowledge.” Merchants believe they have to send the notice in order for the state’s attorney to prosecute. The record amply demonstrates that the state directed, encouraged and promoted the merchants to send out notices as a condition precedent for filing a criminal complaint.
Under the third factor, the conduct of the merchants in sending out notices was intended to assist law enforcement. The state’s attorney testified that “[w]e didn’t have sufficient prosecutorial resources to be able to prosecute individually every single bad check that was written.” Consequently, the state’s attorney’s office “encouraged” the merchants to send out the notices, concluding “it would help them and it would help us.”
Finally, the government cannot knowingly encourage a private citizen to engage in activity which the government is prohibited from pursuing where that citizen has no motivation other than the expectation of reward for his efforts. See United States v. Walther, 652 F.2d 788, 793 (9 Cir.1981). In Ohnstad, the major problem with the enforcement of § 6-08-16 was that after notice has been sent, “over 95 percent of the persons charged with a violation of § 6-08-16 are people who have received the notice but who have not paid the check, and ... in most cases they would not have been prosecuted if they had paid the check_” Id. at 392. While the state’s attorney’s sending out notices demanding payment was not the major problem in Ohnstad, it clearly contributed to the problem and in that limited sense may be viewed as activity which the government is prohibited from pursuing. The merchants’ reward for abiding by the policy to notify bad-check writers to pay up or face prosecution was the opportunity to enlist the prosecutorial arm of the government to enforce collection of the merchants’ unpaid debts.
I believe that application of the relevant factors to the evidence indicates an agency relationship and that, therefore, the practice of prosecuting only those who do not pay is as unconstitutional now as it was in Ohnstad. The merchants are not private actors to whom the fourteenth amendment does not apply. They are instrumentalities of the state. The state’s attorney, in applying a fixed policy of prosecuting only those who do not pay, is deliberately selecting an unjustifiable standard which we have held to be unconstitutional. State v. Ohnstad, supra; see also State v. Carpenter, supra. The fact that the prosecutor has enlisted the aid of the merchants to carry out this impermissible policy does not validate the practice.
I would reverse the judgment of conviction in the Schmitz appeal.