A Felony Deemed To Be A Misdemeanor Cannot Be Expunged

State v. S.A.M., Minn.S.Ct., 3/15/2017.  Twelve years ago S.A.M. pled guilty to a second degree burglary.  He received a stay of imposition of sentence, which became a misdemeanor a mere three years later upon release from probation.  In 2015 S.A.M. applied for an expungement; he stated that  he'd obtained a bachelor's degree, purchased a home, stopped drinking, was raising his eight year old son and stopped hanging out with his co-defendants. 

S.A.M. made his application under the provision of the expungement statute that allows a person to request the same when the person:

was convicted of or received a stayed sentence for a petty misdemeanor or misdemeanor and has not been convicted of a new crime for at least two years since discharge of the sentence for the crime.

Everyone screamed bloody murder:  the county attorney, the city attorney (for some reason), the BCA, the police all objected.  Not on the merits of the application.  No, they all said, and the trial court agreed, that S.A.M. had not been convicted of a misdemeanor notwithstanding Minn.Stat. 609.13,  subd. 1(2).

Justice G. Barry Anderson agreed with the trial court and all those state agencies in a 4-3 opinion.  Justices Lillehaug, Chutich and McKeig dissented:

By shutting the door to expungement for people like S.A.M., the court reduces opportunities for rehabilitated offenders to become productive members of society. Read properly, the law does not require this harsh result. I hope that the Legislature will clarify the expungement statute to reopen this door. Clarification would further what the Legislature has declared to be the state’s official policy: “to encourage and contribute to the rehabilitation of criminal offenders and to assist them in the resumption of the responsibilities of citizenship.” Minn. Stat. § 364.01 (2016).

The majority decided that the "was convicted" language referred only to the initial sentence and not the final outcome.  In coming to this conclusion the court continues to ascribe way too much faith in the ability of the legislature - comprised of part timers who haven't seen a pay raise in twentysome years - to draft (and enact) statutes on the same subject consistently.  Case in point is State v. Franklin, 861 N.W.2d 67 (Minn. 2015).  There the court was asked to determine whether a felony conviction that had been reduced to a misdemeanor counts in determining whether an offender “has five or more prior felony convictions” under the career offender statute.  Only because the legislature used the present tense – “has -  did the court say, no, it doesn’t count.  Presumably, had the legislature said “had previously been convicted of five or more felonies” then it would have counted.  It is the height of hypocrisy for a court that is constantly admitting to its own sloppy draftsmanship in past decisions to insist rigidly on legislative exactitude in its drafting practices. 

So, S.A.M. has to live with his misdemeanor being public.

Expungement Based Upon Acquittal Cannot Be Denied In Order To Avoid Setting Bail Too Low on Some Future Charge

State v. D.R.F., Minn.Ct.App., 4/25/2016.  Back in 2012 the state charged D.R.F. with criminal sexual conduct in the third degree.  In the run up to trial D.R.F. booked to Texas, California, maybe other places as well.  It wasn't until January 2015 that the state could get its hands on him. D.R.F. went to trial on a consent defense and the jury acquitted him. D.R.F. then moved to expunge the record under both the expungement statute and the court's inherent authority.  The trial court denied the motion on both grounds and D.R.F. appealed, but only on the expungement statute.

The statute, 609A.03, subd. 5(b), says that D.R.F.'s acquittal entitled him to the expungement unless the state established by clear and convincing evidence that the interests of the public and public safety outweigh the disadvantages to D.R.F. of not sealing the record.  The statute goes on to list twelve factors, the last of which is the obligatory catch-all "whatever else you can think of" that the court is to consider in deciding whether the state has met this burden. The court made findings on all of these factors.  When the court got to the catch all it threw in D.R.F.'s absconding before trial.  The court of appeals knew of no authority to deny expungement essentially to punish D.R.F. for skipping out.  

The trial court also threw in the possibility that should D.R.F. be charged with another crime in the future the judge in that new case would set the bail too low because of ignorance of the previous skipping and then D.R.F. would skip yet again.  The court of appeals said that this was "simply too speculative to constitute clear-and-convincing evidence" to satisfy the state's burden.

Happy trails to R.D.F.

Felony Conviction Later Deemed a Misdemeanor Remains a Felony Conviction for Purposes of Expungement.

State v. S.A.M., Minn.Ct.App., 3/21/2016.  S.A.M. pled guilty to a burglary.  The trial court stayed imposition of sentence.  Time goes by. The trial court discharged S.A.M. from probation, declaring that the conviction was deemed to be a misdemeanor.  S.A.M. moved to expunge the conviction.  Everybody who could object to the expungement did so.  The trial court denied the request.

The expungement statute says that someone who "was convicted of or received a stayed sentence for a misdemeanor" may seek expungement. Minn.Stat. 609A.02, subd. 3(a)(3).  (There is a lengthy list of felonies which can be expunged but none applied to S.A.M.)  Minn.Stat. 609.13, subd. 1(2) says:

Notwithstanding a conviction is for a felony . . . the conviction is deemed to be for a misdemeanor if the imposition of the prison sentence is stayed, the defendant is placed on probation, and the defendant is thereafter discharged without a prison sentence.

The court of appeals concludes that the language of the expungement statute is free of ambiguity. While the words do seem straight forward enough, none of those words says anything about the impact (if any) of 609.13.  Also, none of those words say anything about just when to apply those words.  Deciding to apply the words to the (now voided) felony conviction is nothing more than a policy choice.  The court could just as reasonably chosen to apply the expungement statute to the status of the conviction at the time the application was made.  When S.A.M. asked for the expungement, which was after the court had discharged him from probation, he could state correctly (except to the Guidelines Commission) that he had been convicted of a misdemeanor.  That's 609.13.  At the time of his expungement request he was thus someone who "was convicted of or received a stayed sentence for a misdemeanor".  

The court of appeals points to two lines of cases to support its conclusion.  State v. Moon, 463 N.W.2d 517 (Minn. 1990) is first up. There the supreme court said that even though Moon's felony conviction was deemed to be a  misdemeanor under 609.13, the legislature had determined, nonetheless, that he could not possess a firearm.  The court discerned a legislative concern for public safety that meant that certain persons were precluded from possessing firearms notwithstanding 609.13. In another case, Matter of Woollett, 540 N.W.2d 829 (Minn. 1995), the court upheld the authority of the Board of Peace Officer Standards and Training to ignore 609.13 in establishing qualifications for officer licensing. The second line of cases looks at the impact of 609..13 on the career offender statute.  State v. Franklin, 861 N.W.2d 67 (Minn. 2011).  Among other things a trial court must determine whether an offender "has five or more prior felony convictions."  Franklin said that the point in time to make that determination is when the career offender is before the court for sentencing.  A prior felony conviction since deemed a misdemeanor thus doesn't count.  Seems like S.A.M., only less dangerous.

District Court Exceeded Its Authority in Expungement of Executive Records;Failed to Make Findings To Support Expungement of Judicial Records

State v. A.S.E., Minn.Ct.App., 8/19/2013.  Back in 1996, A.S.E. pleaded guilty to felony theft, wrongfully obtaining welfare benefits; and in 1997 a jury found A.S.E. guilty of misdemeanor theft.  In 2012,  thirteen years after discharge from probation, A.S.E. petitioned for expungement of  both convictions.   The district court granted the requests, ordering expungement of both executive and judicial records.  The state appealed.

After that, the supreme court released its opinion in State v. M.D.T., 831 N.W.2d 276 (Minn. 2013), which pretty much put the courts out of the business of expunging executive records.  And while the court still have discretion under its inherent power to expunge judicial records, here the district court made no findings in support of its expungment order.  So, the court of appeals sends the case back for those findings.

Expungment of Juvenile Records Held by Executive Branch is Limited to the Order of Expungment

In the matter of the Welfare of J.J.P., Minn.S.Ct., 5/22/2013.  This is a companion case to that of M.D.T., the adult expungment opinion.  The focus here is expungment of juvenile records.  J.J.P. petitioned the district court to expunge his executive branch records under the juvenile code’s expungment provision, Minn.Stat. 260B.198, subd. 6.  The district court denied the petition but the court of appeals reversed.  The court of appeals said that this statute created broad authority to expunge all juvenile delinquency records held by executive branch agencies, and that rather than the balancing test contained in chapter 609A the guidelines in the delinquency rules which address the imposition of a disposition in a delinquency case applied.

Justice Dietzen concludes that this juvenile statute authorizes the court only to expunge executive branch records of the order adjudicating the juvenile delinquent.  This statute says:

Except when legal custody is transferred under the provisions of subdivision 1, clause (4), the court may expunge the adjudication of delinquency at any time that it deems advisable.

There are a lot of statutes that pertain to the creation, maintenance, distribution and destruction of juvenile records among the judicial and executive branches of government, and there are a lot of different “records” that go into the pile.  Only one among these many different “records” is the actual order adjudicating a juvenile delinquent.  So, borrowing Justice Stras’s dictionary, Justice Dietzen tells us what the definition of “adjudication” is.  He employs as narrow a definition as can be – the actual order of adjudication.  In doing so, the court authorizes executive branch agencies to keep all of the paperwork in the run up to that actual order.  Things like the juvenile petition, motions, arrest history, on and on, can stay in the file cabinet. 

J.J.P. wanted this expungment so that the Department of Human Services could not disqualify him from direct patient contact, thereby preventing him from becoming a paramedic.  The court says that expungment of the order of delinquency accomplishes this goal because DHS must have that order in order to disqualify.  The concurrence by Justice Paul Anderson in which Justice Page joins  – takes issue with this rosy picture.  And, points out that if the order of adjudication is expunged then all these executive branches have no statutory authority to keep any of the file.  The concurrence also proclaims that the juvenile expungment provision empowers actions to seal records more expansive than just the order, and that limiting expungment to the order of adjudication is an illusory remedy.  Justice Wright concurred in that particular conclusion about the scope of the expungment authority.

The court then turns to the phrase “deems advisable.”  The court rejects both approaches from the lower courts:  Chapter 609A balancing criteria, and juvenile disposition rules.  Instead, the court adopts the different balancing test in exercising a court’s inherent authority to expunge records.

Minnesota Supreme Court Trades Barbs Over the "Answer to the Ultimate Question of Life, the Universe, and Everything."

State v. M.D.T., Minn.S.Ct., 5/22/2013.  You wouldn’t think that an expungment opinion could generate such a fuss and be such a good read.  But you’d be wrong.  Poor Ms. M.D.T. made a one-off mistake:  she forged a pain medication prescription because she didn’t think the prescribed dosage was up to the task.  She got charged and convicted of aggravated forgery.  Years ago.  Stay of Imposition of sentence.  Successful probation.  She rebuilt her life within the limitations of that conviction, but that conviction was nonetheless holding  her back.  

So, she asked the court to expunge her records – all of them, including records that the courts created but happened to be living in various executive branch offices. The first time the court said, no.  She waited a few years, asked again.  This time, the trial court granted that request and the court of appeals affirmed. Read about that here.  That opinion seemed destined for a bad reception in the supreme court.  And, with the exception of Justices Paul Anderson and Page that’s what it got.

Chief Justice Gildea, in a 4-3 opinion, reverses, concluding that the court has no authority to order the expungment of records either created by the executive branch and residing therein, or created by the judicial branch, copies of which reside within an executive branch filing cabinet.  The majority opinion is mean spirited and extraordinarily narrow-minded.  The real fireworks, however, are in the concurrence by Justice Stras, and the dissent from Justices Paul Anderson and Page. 

Justice Stras confirms his true colors as a Scalia “originalist” saying that the state’s judicial power must be understood by looking to the territorial courts in existence at the time of statehood and ratification of a state constitution. The business of those territorial courts was to “decide cases.”  That’s it.   He debunks the entire construct of  “inherent [judicial] authority” as a ruse that means only what a majority of the court happens to think it means.  In doing so, he takes a swipe at the court’s recent use of that “ethereal” doctrine in deciding  Obeta II, (overruling Saldana) and at the court’s taxation of lawyers to fund the public defender system.

Justice Paul Anderson, nearing retirement, pens a compelling, compassionate dissent, in which Justice Page joins.  Here’ the best paragraph:

I begin my analysis by reiterating some of the key facts underlying M.D.T.’s second petition for expungement. I begin this way because if this case is to be properly understood, M.D.T.’s story must be told. Her story is a cautionary tale about how important it is to know and follow the law. It is a tale about how an ordinary citizen who commits an act that is both foolish and criminal endures the consequences that flow from that act. It is also about how the executive exercises its power to prosecute a criminal act. But most importantly, it is a tale about how a citizen searches for redemption and attempts to move on with her life after having paid her debt to society for a criminal act. In many ways, M.D.T.’s story also reflects who we are as a society—our concept of justice, how we punish, our ability to forgive, and even our willingness to forgive. Finally, M.D.T.’s story, ending with the result reached by our court today, illustrates how those of us who inhabit Minnesota’s judiciary differ in our understanding of what constitutes a core function of the judiciary, how the judiciary is empowered to use its authority to perform a core function, and, more broadly, the role the judiciary plays in our scheme of government under the Minnesota Constitution.

Well said, Paul.  Can’t go out any better than that.  Six of the judges who looked at this file, this individual, thought the records should be expunged.  Only five thought otherwise.

Juvenile Expungement Request Sent Back to District Court to Give Human Services Opportunity to be Heard

In the Matter of the Petition of H.A.L.,, Minn.Ct.App., 4/1/2013.  The juvenile court adjudicated Ms. H.A.L. for something to do with a burglary.  A year or so later, the court discharged her, whereupon H.A.L. filed a petition to expunge her record.  H.A.L. wanted to go into either nursing or physical therapy but she neglected to serve her papers on the one agency that could stop her plans cold:  the Department of Human Services.  The court heard the petition and ordered that DHS seal its records.

DHS cried foul, relying on this statutory provision:

Notwithstanding expungement by a court, the commissioner may consider information obtained from juvenile courts as part of a background study for any individual applying to work in a licensed program or from the Bureau of Criminal Apprehension], unless the commissioner received notice of the petition for expungement and the court order for expungement is directed specifically to the commissioner.

Minn.Stat. 245C.08, subd. 1(b).  The court of appeals concludes that this section trumps the more generalized statutory discretion of district courts to expunge juvenile adjudications “when it deems such action advisable.”  Minn.Stat. 260B.198, subd. 6.  The court sent the case back to let DHS have its say; after that, if the court wants to order DHS to seal its records it’s free to do just that.

Statutory Expungement

State v. R.H.B., Minn.S.Ct., 10/17/2012.  A jury acquitted R.H.B. of various assault charges.  R.H.B. then petitioned to seal the criminal records under the expungement statute, Minn.Stat. 609A.03.  Subdivision 5(b) says that the district court:

shall grant the petition to seal the record 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.

R.H.B. didn’t say too much about why he – well, Justice G. Barry Anderson didn’t say that R.H.B. was a male but I’m going to assume it - wanted the expungement.  The state, on the other hand, submitted three boiler plate affidavits that said, well, not a lot, mostly that not sealing the records would make their job a tad bit easier. 

Justice Anderson first says – as the court has said before, State v. Ambaye, 616 N.W.2d 256 (Minn. 2000) – that the statute creates a presumption that a petitioner whose criminal charges were resolved in his favor is entitled to the expungement.  That entitlement means that a petitioner doesn’t have to come up with a laundry list of horrors and inconveniences that the publicly available record is causing him.  So, R.H.B. gets the expungment unless the competing interests go the other way.  The state has to come up with that list of horrors and inconveniences.

The state thought that its generic affidavits carried the day.  The court thought otherwise, characterizing them as “unremarkable and generalized, and could be submitted in nearly every expungement case.  The court also rejected the state’s other argument that since R.H.B. didn’t come up with a list of horrors and inconveniences then by definition the disadvantages of sealing the record have to outweigh the (not stated) advantages of sealing the record.

Juvenile Expungment is Governed Under Juvenile Dispositional Laws

In the Matter of the Welfare of J.J.P., Minn.Ct.App., 1/23/12.  At age 17, J.J.P. picked up two delinquency convictions, one for breaking into a golf shop snack bar after hours, the other for a garden variety shoplifting.  Five years later, J.J.P. asked for and received an expungement of his judicial-branch records.  So far so good.

J.J.P. became an EMT right after that; he also is a firefighter and in college studying to become a paramedic.  When it was time to perform his clinical coursework, the department of human services disqualified him from completing this coursework because it involved direct contact with persons receiving DHS licensed services.  J.J.P. then requested expungement of all executive branch records; the district court denied the request.

Expungement of delinquency adjudications is covered in the juvenile code, 260B.198, subd. 6.  This statute says that the judiciary is authorized to “expunge [an] adjudication of delinquency at any time that it deems advisable.”  That’s as broad as it is wide, and without any limitations stated within the statute the court of appeals concluded that the judiciary had the authority to expunge executive-branch records as well as judicial records.   And, because this is a grant of statutory authority, there are no separation of powers concerns; the statutory grant carries with it the policy decision that records possessed by the executive branch may be expunged by a court.  In the exercise of this authority, chapter 609 is not to be used to determine whether to grant the requested expungment.  Section 260B.198 is an authorized disposition in a delinquency case, so the court must be guided by the existing standards and guidelines governing dispositions in delinquency cases. 

Applying all that, the court of appeals concludes that the district court got it wrong and should have granted the expungement.  The State’s petition for further review is pending.

“Interests of Justice” Is Not Much of a Reason to be Given an Expungement

State v. R.H.B.,, Minn.Ct.App., 12/5/2011, Review Granted, 2/28/12.  R.H.B.’s wife provided day care for a three month old, P.  The wife went shopping, leaving P in R.H.B’’s care.  When P’s mom showed up, she noticed scratches and bruises on P’s face and ears.  It turned out that P had suffered a subdural hematoma when R.H.B. had thrown P into the air but failed to catch him.

The state charged R.H.B. with third degree assault, later amended to first degree assault.  A jury acquitted R.H.B. on both counts.  R.H.B. petitioned for expungement of his record, which the trial court granted over the state’s objections. 

The trial court construed the petition as invoking the court’s statutory authority to expunge all records “if all pending actions or proceedings were resolved in favor of the petitioner.” Minn. Stat. § 609A.02, subd. 3 (2010).”  R.H.B. met that standard so the real question was whether the state could establish by clear and convincing evidence that the public’s interest in having the record available outweighs the petitioner’s interest in having that record sealed.

R.H.B. said that he wanted the expungment because “the interests of justice” required the court to grant it.  The court of appeals didn’t think that was any reason at all, so that there was really nothing for it to weigh.   Or, if it did weigh it then the state’s generic reasons in opposition – unsealed records are useful to cops, child protection said pretty much the same thing – trumps R.H.B’s generic reason.

Well, the supreme court has taken review.  The state had the  burden of establishing reasons that outweigh sealing the record, so the real fight may be whether the boiler plate that the state presented  here suffices, at least in the (empty) face of R.H.B’s boiler plate reasons. 

Expungment of Judicial & Executive Records Upheld

State v. M.D.T.,, Minn.Ct.App. (4/9/2012).  Hats off to District Court Judge Timothy K. Connell, and to the panel of the court of appeals - Klaphake, Presiding Judge; Stoneburner, Judge; and Cleary, Judge - for expunging both judicial and executive records of a conviction, and then upholding that expungment. This quote sort of sums it up:

In our view, if the effects of a minor forgery offense linger for a lifetime, prohibiting meaningful employment, the punishment for that crime is “excessive” and eviscerates that person’s fundamental rights. See James W. Diehm, Federal Expungement: A Concept in Need of a Definition, 66 St. Johns L.R.J. 73, 80 (1992) (noting that expungement is often afforded to “defendants [who] were young at the time of the offense and have since led an exemplary life”). If society has an interest in criminal rehabilitation or even a broader economic interest in encouraging, or at least, not precluding, a person convicted of a minor crime from eventually obtaining employment, those interests are not furthered by the existing law. An individual’s fundamental rights to obtain employment and housing are affected by a criminal record, as is an individual’s right to be free from excessive punishment.

Well, you can sort of see this one making a bee line to the Supreme Court.  Get those petitions in quickly!

7/9/12:  Sure enough, the Supreme Court has granted review.  Order available here.