Expungement Law in Minnesota. Krista Marks, Neighborhood Justice Center

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1 Expungement Law in Minnesota Krista Marks, Neighborhood Justice Center

2 Background What are we trying to expunge? Criminal Records Where are we trying to expunge them? Courts BCA (Bureau of Criminal Apprehension) Police / Sheriff Department of Human Services / MN Dept of Health Corrections / Probation / Diversion Programs County Attorney / City Attorney Diversion Programs

3 Background Four types of criminal expungement in MN (in a nutshell) MS 299c.11 administrative seals law enforcement & BCA records MS Ch 609A statutory seals all agency records Inherent Authority State v. MDT seals court records absent appropriate circumstances Juvenile Delinquency MS 260B.198, sub. 6 & In re JJP.

4 Part I: MDT / Inherent Authority

5 What is an inherent authority expungement? A way to expunge anything that does not fit under the expungement statutes Filed in district court where the offense occurred Follows procedures of MS Ch 609A A creature of case law The scope of relief has expanded and contracted every few years The issue: in what circumstances may a district court judge seal criminal records maintained outside of the judicial branch? Judicial records are usually not a legal issue

6 Standard for Judicial Records Expungement [I]f expungement will yield a benefit to the petitioner commensurate with the disadvantages to the public from sealing the record and the burden on the court in issuing and enforcing the order. State v. N.G.K., 770 N.W.2d 177, 180 (Minn. App. 2009) (citing State v. Ambaye, 616 N.W.2d 256, 258 (Minn. 2000) and State v. C.A., 304 N.W.2d 353, (Minn.1981)). Five Factors - State v. H.A. 716 N.W.2d 360, 364 (Minn. App. 2006) 1. Difficulty in maintaining employment or housing; 2. The seriousness of the offense; 3. The potential risk that the individual poses and how it affects the public s right to access the record; 4. Additional offenses or rehabilitation; 5. Other objective evidence of hardship under the circumstances.

7 Most Authoritative Cases for the scope of an expungement State v. C.A., 304 N.W.2d 353 (Minn. 1981): Seminal 1981 case, which said in dicta that a court may grant broader relief than what was contained in the expungement statute through its inherent authority, when doing so is necessary to the performance of a court s unique judicial function. Example: a conviction that has been set aside on appeal State v. S.L.H., 755 N.W.2d 271 (Minn. 2008): A court may expunge executive branch records when: A person s constitutional rights have been violated or there has been an abuse of discretion in the executive branch. Doing so would implicate a core judicial function, such as reducing or eliminating unfairness to individuals. [achieving employment goals does not count.] Court was very concerned about legislative mandates for access to data. Data Practices Act/Department of Human Services Background Checks

8 State v. MDT: Court of Appeals State v. M.D.T., 815 N.W.2d 628 (Minn. App. 2012) Published Court of Appeals case allowing expungement of criminal records maintained by the executive branch Broadest reading of S.L.H. exceptions so far Incorporates public policy into decision Supreme Court granted review June 27, 2012

9 State v. MDT: Supreme Court 831 N.W.2d 276 (Minn. 2013). District court abused its discretion by sealing executivebranch records. No constitutional rights violation alleged Not necessary to performance of core judicial function. To the extent the district court relied on the unfairness analysis in C.A. to support its use of inherent authority to expunge MDT s records held in the executive branch, the court exceeded its authority. Unlike C.A., MDT stands convicted of the offense A court s authority to expunge its own records does not empower it to expunge executive branch records, even if generated in the judicial branch.

10 State v. MDT: Supreme Court Separation of Powers and respect for legislative mandate for executive branches Contravenes MS 609A s limited, enumerated list of offense types for expungement Contravenes the Data Practices Act presumption that government data are public. MS 13.01, Because 15 years have not elapsed since the discharge of MDT s sentence, the Legislature has determined that MDT s criminal records are public data.

11 Can I ever get my client s executivebranch records sealed under MDT? What if your client was not ultimately convicted? Vacate & Dismiss Stay of Adjudication Reversed on Appeal (C.A.) Exonerated by DNA, etc. Otherwise ultimately dismissed after guilty plea/verdict What if your client s case is so old that the legislative mandates for access to the data do not apply? Data Practices, DHS/MDH, Sentencing Guidelines

12 What if my client is in the 99%? Benefits of a judicial records expungement: Still may be useful for minor offenses that have not been reported to the BCA The order is better than nothing, and if it is well drafted, could help your client with job interviews, housing applications, etc. Write your own proposed order. Make it persuasive. Update the BCA records. Send a demand letter to the BCA with the expungement order. MS 13.04

13 The BCA Fix

14 Alternatives to Expungement Agency Relief Work with the remedies available through the agency that may have issued an adverse decision to your client Department of Human Services/Department of Health Disqualification Appeals (Minn. Stat. Ch. 245C; DHS Fair Hearings, Minn. Stat ; OAH Hearings (Minn. R ) Professional Board Licensure Appeals (varies based on board) Public Housing / Section 8 Denial Appeals

15 Alternatives to Expungement Minn. Stat. Ch. 638 Pardon Extraordinary (Board of Pardons website) MN Board of Pardons may grant a pardon extraordinary 5-10 years after discharge of sentence. Benefit: sets aside and nullifies the conviction; eliminates DHS/MDH disqualifications based on convictions; seals public BCA record and adds pardoned note to file. Drawback: does not seal the record

16 NJC Expungement Info Sheet We require the following information in order to fill out your expungement petition: 1. Please write your full name and any other aliases you have ever gone by: 2. Please list the charge(s) you want to expunge: 3. Please list all the addresses you have lived at since the date of the offense you are seeking expungement for: 4. Please list the names of the alleged victims in the incident (if none, put N/A): 5. Please list specifically any jobs that you have been denied because of this charge on your record (include when and where you applied): 6. Please list as specifically as you can any housing you have been denied because of this charge (include when you applied and where the housing is): 7. Please list any other ways in which an expungement would benefit you: 8. Please list any steps you have taken to rehabilitate or benefit the community (i.e. volunteer work, counseling, schooling, rehab, religious affiliation):

17 Self Help Center STEP 1: Get Criminal Case History Before you start to fill out your forms, you must get a printout of Criminal Case History of ALL of the criminal cases where you were charged with a crime, including cases where you were not convicted. You must write details of your case histories into the court forms. STEP 2: Get the Court Forms You can download Criminal Expungement Forms or you can buy a pre-printed forms packet along with your criminal case history at your local courthouse. STEP 3: Complete the Forms Step-by-Step Guide to Criminal Expungement Forms (video tutorial) Step-by-Step Guide to Criminal Expungement Forms (.pdf) STEP 4: Serve Notice of Expungement on Government Offices IMPORTANT STEP: Use Affidavit of Service Form EXP104 to serve expungement papers on government offices who might have a record of your criminal case. The most difficult step for many people is serving notice of their expungement petition on government offices that keep criminal records. It is VERY important to do this step correctly. If you make a mistake, an expungement that is granted may not affect some government offices, OR you might have to start over.

18 Self-Help Center Arrested, but not charged? If you were arrested but not charged with a crime, there will not be a court record for that specific event. However, law enforcement agencies and the BCA may have records of the arrest. There is a non-court process for expunging the arrest records of people who were not charged for the crime. Click Expunge Arrest Records for more details. One-on-One Help? If you need more help doing a criminal expungement case, go to Self-Help Services in the Courts to see if there is additional help available in your area. If you are low income, you be qualify for help from a legal aid office or volunteer attorney.

19 Important Websites Self Help Center MN Court Forms m=88&itemtype=packetdetails

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