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If your client is arrested on suspicion of committing a crime, the arrest goes on his or her criminal record. Even if the person is never charged with that crime, it stays on the record, available for all to see.
Why is that a problem? Besides the embarrassment, a criminal record may prevent your client from getting a job, even if the alleged crime has no connection with the job duties. It may also prevent your client from obtaining a place to live. Landlords and employers routinely do a "records check" prior to renting an apartment or offering a job. Given current technology, conducting a records check is easy and cheap, so that even inertia is not a barrier to finding out all of an applicant’s arrests, charges, and convictions.
In addition, the evidence of racial profiling and bias throughout the criminal justice system suggests that communities of color are more likely, all else being equal, to have a criminal record. The effects of bias in the criminal justice system can result not only in minorities facing greater penalties than non-minorities, but also in minorities facing greater obstacles to obtaining housing and employment—beyond any racial discrimination directly related to the application process.
In the past year, attorneys and advocates have witnessed a sharp rise in the number of clients asking for help in sealing their criminal records from public scrutiny. At the same time, however, helping many of these clients—those who were actually convicted of crime—has become more difficult due to a recent Minnesota Court of Appeals decision, State v. Schultz, 676 N.W. 2d 337 (Minn. Ct. App. 2004).
This article will examine the state of criminal expungement law post-Schultz; offer ideas for helping people in this legal landscape; and offer thoughts for how to change and challenge the law.
Statutory Grounds for Seeking an Expungement Under Minn. Stat. § 299C.11
Under certain circumstances, a person who is arrested or charged with a crime, but not convicted, may demand that the arresting agency, the sheriff, and the Bureau of Criminal Apprehension (BCA) return to him or her booking photos, finger- and thumbprints, identification data, physical mark data, and arrest records and all copies thereof. Minn. Stat. § 299C.11 (b). This remedy, however, is extremely limited and available only in the following situation: (1) All charges were dismissed prior to a finding of probable cause or the prosecutor did not file any charges and the grand jury did not indict; and (2) he or she did not have any felony or gross misdemeanor convictions in the 10 years before this case.
Completion of a diversion program, like operation de novo or dismissal
under Minn. Stat. § 152.18, does not qualify under Minn. Stat. § 299C.11. Furthermore, the finding of probable cause under Minn. Stat. § 299C.11 does not mean a preliminary finding incident to jailing nor a finding pursuant to Rule 10 of a misdemeanor case, but only a Rule 11 finding on a formal complaint in a felony or gross misdemeanor case. See State v. Bragg, 577 N.W. 2d 516, 519-20 (Minn. Ct. App. 1998).
If a person qualifies for relief under Minn. Stat. § 29C.11, he or she may write a letter to the various holders of the data; expungement does not require a petition and hearing. However, if a charge has been filed and then dismissed for lack of probable cause, the defendant may have to file a Chapter 609A expungement petition in order to get the court records sealed. When a court case has been filed, it is appropriate to file a Chapter 609A petition and include in that petition a request for the return of the arrest records listed in Minn. Stat. § 299C.11, rather than the usual sealing of such records.
Statutory Grounds for Seeking an Expungement Under Minn. Stat. § 609A.01–A.03
Differences between expungements under Chapter 609A and Minn. Stat. § 299C.11
Requesting an expungement under Chapter 609A differs from Minn. Stat. § 299C.11 in a number of important ways. First, under Chapter 609A, the only relief is sealing of records, rather than destruction or return of certain records to the defendant. Second, a petition and court proceeding is required under Chapter 609A, rather than a simple letter. Third, expungement may be sought under Chapter 609A for convictions, but not under Minn. Stat. § 299C.11. Also, expungement is available under Chapter 609A for cases involving successful pre-trial diversion, such as operation de novo. State, City of Maple Grove v. Horner, 617 N.W. 2d 452, 455 (Minn. Ct. App. 2000).
The three possible grounds under Chapter 609A
Chapter 609A provides three grounds under which a petition to expunge criminal records may be brought. The first is for cases that are dismissed and discharged pursuant to Minn. Stat. § 152.18. Minn. Stat. § 609A.02, subd. 1. The second is for crimes committed when the petitioner was a juvenile and certified as an adult and finally discharged by the commissioner of corrections or was placed on probation and satisfactorily discharged from probation. Minn. Stat. § 609A.02, subd. 2.
Under these first two enumerated grounds for expungement, the burden is on the petitioner to prove by clear and convincing evidence that an expungement would yield a benefit to the petitioner commensurate with the disadvantages to the public and public safety of sealing the record and burdening the court and public authorities to issue, enforce, and monitor an expungement order. Minn. Stat. § 609A.03, subd. 5(a).
The third enumerated ground for expungement is for a criminal matter resolved in the petitioner’s favor. Minn. Stat. § 609A.02, subd. 3. "Resolved in the petitioner’s favor" includes:
• Dismissal of charges (either outright or by suspended sentence)
• Arrest without a subsequent charge
• Completion of a pre-trial diversion program. State, City of Maple Grove v. Horner, 617 N.W. 2d 452, 454-455 (Minn. Ct. App. 2000).
"Resolved in the petitioner’s favor" does not include:
• An acquittal by reason of mental illness. State v. Ambaye, 616 N.W. 2d 256 (Minn. 2000). (This decision was subsequently codified in the statute.)
• A stay of imposition for discharge and dismissal pursuant to Minn. Stat.
§ 609.135 (because the petitioner pled guilty to the offense).
If the matter was resolved in the petitioner’s favor, the court is to grant the petition unless the agency or jurisdiction whose records would be affected establishes by clear and convincing evidence that the interests of the public and public safety outweigh the disadvantages to the petitioner of not sealing the record. Minn. Stat. § 609A.03, subd. 5(b).
If a matter is outside these three situations, but the state makes a plea agreement that the conviction will be expunged, expungement can be granted, even though not authorized under Chapter 609A. See, State, City of Maple Grove v. Mosher, No. C6-00-816 (Minn. Ct. App. Dec. 12, 2000) (unpublished decision). However, in light of the recent decision of State v. Schultz (discussed below), an agreement by the prosecutor to expunge his or her records and the court records might not bind other executive branch agencies, such as the BCA.
Records affected under Chapter 609A petitions
It is important to note that relief under Chapter 609A is limited to certain records. For example, DNA samples cannot be sealed, returned, or destroyed. Minn. Stat. § 609A.03, subd. 7(a). Also, expungement cannot be granted concerning records of a conviction for which registration is required (i.e., sex offenses). Minn. Stat. § 609A.02, subd. 4. Finally, even sealed records may be reopened for criminal investigation and for evaluating an applicant for employment with a criminal justice agency upon an ex parte order by the court. Minn. Stat. § 609A.03, subd. 7(b).
Drafting a Successful Expungement Petition Under Minn. Stat. § 609A.01–A.03
The contents of the petition are specifically listed in Minn. Stat. § 609A.03. The form should track the language in that section of the statute. Regarding including all of the defendant’s previous convictions and arrests, clients may not remember all of the different prosecutions. Since any omissions, even if unintentional, will be construed as an attempt to mislead the court, you should obtain a printout of the client’s criminal record from the courthouse or BCA as a way to double-check. A review of these records may even reveal clerical errors that may be corrected with a visit to the Hennepin County records department.
While much of the petition is listing basic facts, three parts are more artful, namely: why the person is seeking an expungement; the details of the offense; and steps toward personal rehabilitation. These are the portions of the petition in which you have the opportunity to write persuasively in support of your client’s request. All possible reasons should be included in the petition as testimony is often not taken at the hearing itself. It is also persuasive to attach character reference letters on behalf of the client to show that he or she has been rehabilitated since the conviction. In an unusual case, the court might allow a petitioner to testify, but you should not rely on that possibility.
Why the person is seeking expungement
When drafting the reasons why the person is seeking expungement, it is helpful to include specific details as to why the client’s life will be better if the expungement is granted. When framing reasons that would support the petition, some things to consider include:
• Any jobs the client has applied for and been denied, especially when the client was denied the job after the potential employer found the criminal record.
• Any housing the client has applied for and been denied, especially when he or she was denied the housing after the potential landlord found the criminal record.
• Any professional licenses the client has applied for and been denied because of the criminal record.
• Whether the client is on probation at a new job and needs to clear his or her record to keep the job.
• Whether the client was fired or laid off from a long-standing job after the employer checked the criminal history. If the employer had been satisfied up to that point, provide details regarding the client’s good work history and the employer’s satisfaction.
• Whether the client is in school and needs to clear his or her record to have a chance for jobs after school.
Details of the offense
When drafting the details of the offense, include the date and jurisdiction of the offense; the names of any victims (or if none state that); whether there is a current order for protection, restraining order, or other no-contact order prohibiting the client from contacting the victims; whether there has ever been a prior order for protection or restraining order against the client; the court file number; and the date of conviction or dismissal. If there is a current or expired order for protection, restraining order, or no-contact order with the victims, you must attach a copy of the order to the petition. Minn. Stat. § 609A.03, subd. 2(b).
If your client was not convicted of the crime, there is no need to draft details regarding personal rehabilitation. However, in cases that involved convictions, when drafting the details regarding personal rehabilitation, include all the changes the client has made to show the court that he or she will never commit this offense again. Some things to consider:
• Why did the client commit this offense? Would the client do it again? If not, give specific details as to why not, such as the client is older and wiser, has different friends, is not drinking anymore, has gone through treatment programs, has children and is more responsible, understands the laws better now.
• Were alcohol or drugs a part of the crime? If yes, did the client go to alcohol or drug treatment? If yes, write down the name of the program, the completion date, and some of the things that the client changed as a result of participating in the program. Also attach as an exhibit to the petition a discharge summary or letter from the treatment program showing the client’s satisfactory completion of the program.
• Did the client go to NA or AA meetings? If yes, attach proof of attendance as an exhibit to the petition, such as a letter from the client’s sponsor or signed AA cards.
• Is the client active in a church, the community, volunteering, or some other beneficial activity? If yes, give details and inquire as to whether anyone from the church, community, etc., will write letters in support of the petition. Such letters could state that the client is unlikely to commit another crime, that he or she needs the expungement for specific reasons, that he or she is a good, responsible, upstanding person, etc. Attach these letters to the petition as exhibits.
Other criminal offenses
When listing all the charges, convictions, etc., of your client, besides reviewing the criminal history, ask the client whether there are any criminal offenses not listed on the criminal history. Types of offenses that may not be listed on the criminal history are traffic offenses such as driving while intoxicated, driving after revocation, driving after license suspension, driving without a license, and driving without proof of insurance. (Traffic cases in Hennepin County can be listed by attaching and referencing the defendant history sheet.) Check the printout and list all of the charges, convictions, stays of adjudication, or impositions of sentence to make sure the client has not missed anything.
Procedural Considerations Under Minn. Stat. § 609A.03
The hearing date under Minn. Stat. § 609A.03 must be scheduled at least 60 days after the petition is filed. Therefore, once the petition is prepared, you should obtain a hearing date about 70 days out to provide enough time to adequately file and serve the petition and supporting documentation.
The hearing should be scheduled before the judge who presided over the dismissal or conviction, if the judge is still on the bench. If the judge is retired, the matter can be scheduled before the chief judge of the district or a judge assigned by the chief judge. Also, if the client has more than one case to expunge and the cases had different judges, you may be able to consolidate all of the cases before the chief judge, or a judge assigned by the chief judge, rather than have multiple individual hearings.
The client must sign the petition before a notary. The documents then need to be served on all of the relevant parties who may hold the records the client wishes expunged. These usually include the BCA, the attorney general (who represents the BCA), the arresting agency, the municipal police department, the county sheriff, the county attorney, the city attorney, community corrections, and the judge who will hear the petition. The holders of the records should be personally identified in the proposed order and when serving the documents to comply with State v. C.A., 304 N.W. 2d 353 (Minn. 1981). The documents must be served 60 days prior to the hearing.
The petition and affidavit of service must be filed with the clerk of district court. There is a filing fee for most cases, unless the petitioner is indigent or the matter sought to be expunged was resolved in thepetitioner’s favor. Minn. Stat. § 609A.03, subd. 1.
If the court grants the petition, the order is stayed for 60 days for the court administrator to mail it to the holders of the records and for these agencies to decide whether to appeal. Minn. Stat. § 609A.03, subds. 8 and 9.
Prior to 1999, a person who had been convicted of an offense that did not fall under the above statutory grounds for expungement could successfully argue a petition under an additional grounds—the inherent authority of the court to expunge records relating to the court process. This included executive branch records, such as police, prosecutor, and BCA records. These petitions were based largely on State v. C.A., 304 N.W. 2d 355 (Minn. 1981), and State v. P.A.D., 436 N.W. 2d 808 (Minn. Ct. App.), rev. denied (1989). Prior to 1999, most of these petitions, if they involved property or nonviolent crimes, were granted.
However, in State v. T.M.B., 590 N.W. 2d 809 (Minn. Ct. App.), rev. denied (1999), a panel of the Minnesota Court of Appeals dramatically narrowed the powers of the court under the "inherent authority" grounds. T.M.B. held that the separation of powers doctrine prohibited the trial court from ordering an executive branch agency (i.e., BCA) to seal its records—unless the petitioner could prove that the BCA abused its discretion in the performance of its function or otherwise "violated his rights." T.M.B. stated in a footnote that it was not overruling P.A.D. as P.A.D. upheld the trial court’s inherent authority to order the expungement of BCA and other executive branch agency records if doing so was necessary or conducive to fashioning a meaningful remedy for the petitioner.
After T.M.B., many trial courts were more reluctant to grant expungement of BCA and other executive branch agency records. However, some trial courts were receptive to the argument that—because landlords, employers, and licensing agencies typically search BCA records rather than judicial records—expungement of BCA records was necessary to fashion a meaningful remedy for the petitioner. In other words, sealing only the judicially kept records would have no effect on the petitioner’s ability to find a job or a place to live and therefore could not constitute a "meaningful remedy."
Inherent Authority Post-Schultz?
In 2004, the power of the court to expunge criminal records pursuant to its "inherent authority" was further limited. The court of appeals held that the judicial branch could not order the executive branch to seal executive branch records pursuant to the separation of powers doctrine. State v. Schultz, 676 N.W. 2d 337, 343-44 (Minn. Ct. App. 2004). In this case, a different panel of judges addressed the apparent contradictions between State v. C.A. and State v. P.A.D., on one hand, and State v. T.M.B, on the other. While the court of appeals affirmed the trial court’s expungement of court records using its inherent authority, the court of appeals reversed the trial court’s expungement of police and BCA records. Thus, while the Schultz court acknowledged that the "existing case law addressing the issue does not appear to be entirely consistent," it severely restricted the scope of P.A.D.
While Schultz is problematic (at least until the Supreme Court addresses this issue), defense attorneys have a number of persuasive arguments that Schultz was wrongly decided. For example, the legislative history of Chapter 609A clearly shows that its purpose was to clarify portions of, rather than limit, the court’s inherent authority. Moreover, Minn. Stat. § 609A.01 states that the procedures for expungement contained in Chapter 609A apply to the expungement of criminal records in the enumerated cases contained in 609A.02 or "other applicable law." "Other applicable law" certain-ly includes inherent authority ex-pungements, as they had been recognized in the law well before the creation of Chapter 609A. Thus, the legislative branch has essentially approved the judicial branch’s power to order the expungement of criminal records—regardless of which governmental branch maintains them. Since the "inherent authority" is granted by the Legislature, and not "taken" by the judiciary, no separation of
powers violation occurs by ordering expungements of executive branch agency records under inherent authority.
In fact, the court of appeals has accepted this legislative approval of judicial power to expunge criminal records regardless of where the records are held. Courts are still allowed to order expungement of executive branch agency records in the situations enumerated in Chapter 609A, even though the Legislature’s identification of the location of the records to be expunged was not expressed. Thus, the above separation of powers doctrine applies whether or not the grounds for expungement are enumerated in the statute. To be consistent with legislative history and the court of appeals’ acceptance of the court’s powers in the Chapter 609A situations, the courts must continue to recognize that their authority to expunge all criminal records extends to all types of criminal expungement petitions, including those under "inherent authority."
Furthermore, regardless of which offices keep records of an individual’s criminal history, the indisputable fact remains that the records are court-generated. As the separation of powers doctrine requires three branches of government powerful enough to check the others, the separation of powers doctrine supports the judicial branch’s inherent authority to seal those records that it originally created.
Public policy reasons also support the court’s authority over records it created, regardless of where maintained. Without a job, how is one to survive within the bounds of the law? Without a place to live, how is one to become a contributing member of society? The holding in P.A.D. could not be more relevant in these times, where it is necessary to expunge the BCA and other executive branch agency records for an individual to have a meaningful remedy. Expungement of only the court-maintained records will not help a person get a job or find a place to live.
Despite this overwhelming support for the court’s power to seal criminal records, regardless of where kept, it is unlikely that trial courts will choose to distinguish Schultz and T.M.B. absent a decision by the Minnesota Supreme Court. Defense attorneys may best serve their clients by watching for specific cases that would be appropriate to take to the Supreme Court so that it could address this critical issue. In the meantime, it is unlikely that petitions to expunge executive branch records will succeed in inherent authority expungement cases.
Another strategy for those sympathetic to the plight of individuals with a criminal history is to persuade the Legislature to amend Chapter 609A to make inherent authority expungements one of the enumerated grounds for expungement, and to expressly provide that all of the grounds for expungement include expungement of criminal records maintained by the executive branch. While the task is not easy given the current legislative climate, it may be possible if criminal defense attorneys, social service agencies, and sympathetic advocacy groups join together to lobby for change. Until then, the unfortunate fact remains that individuals may be permanently disadvantaged by simply being in the wrong place at the wrong time or by a crime they may have committed a long time ago.