1. Expungement Fashioning a Meaningful Remedy After State v. S.L.H. Kelly J. Keegan

2. Overview What statutory and case law control? What are the issues with current law? Which clients currently find expungement a meaningful remedy? Which do not? Alternative strategies, arguments, practice tips Proposed legislative changes

3. What statutory and case law control?

4. Minn. Stat. §299C.11 (Typically no formal charges) -Dismissed prior to a determination of probable cause -Grand jury did not return an indictment -Prosecutor declined to file charges -No petition required; can do this by formal letter to BCA and police department -Entitled to the return of fingerprints, booking photographs, and deletion of electronic investigation records, and all other identification data -Must not be convicted of a felony or gross misdemeanor in the previous 10 years -DHS disqualification clients need an expungement

5. Minn. Stat. Ch. § 609A (Statutory Authority Expungement) – § 152.18 Drug Diversion – Juveniles prosecuted as adults – Resolved in favor (no plea) – Sealing but not destruction or return of records – All records

6. State v. S.L.H. 755 N.W.2d 271 (Minn. 2008) (Inherent Authority Expungement) - Most cases involving a plea or finding of guilt - Can seal judicial branch records only, unless there is a violation of the defendant’s constitutional rights, abuse by an executive branch agency, or to uphold a core judicial function - Based on the Separation of Powers Doctrine -Inherent authority is trumped by legislative mandate in the Minnesota Data Practices Act, Minn. Chapter 13 - State v. V.A.J. has been effectively overruled in subsequent case law

7. What are the issues with current law?

8. Most defendants seeking expungement fall under inherent authority Executive branch records will not be sealed, including BCA records, police records, DPS records, prosecutor and AG records, DHS records Many feel this is a meaningless remedy Electronic records are now widely disseminated

9. Criminal History Records MN Court Information System Public“Private” InternetAny courthouse Name Once charges are filed PM, M, GM, F Conviction of at least one count Pending cases, dismissed cases, convictions Shows all counts along with all case details Shows all counts along with all case details and court notes Bureau of Criminal Apprehension Public“Private” InternetSigned release, $15 Name, date of birth Upon arrest/booking Some M, GM, F Conviction of at least one count Arrests, dismissed cases, convictions Shows conviction counts, sentence, and prison custody Shows booking counts, charged counts, conviction counts, sentence, and prison custody

10. Which clients currently find expungement a meaningful remedy?

11. Resolved in Favor of Defendant Statutory Authority in § 609A.02, Subd. 3 All records can be sealed Court “shall grant” under § 609A.03, Subd. 5 - Dismissal of charges by court or prosecutor - Continuance For Dismissal (CFD) - Continuance Without a Plea (CWOP) - Agreement to Suspend Prosecution - No–plea diversion in Hennepin, Ramsey Counties - Acquittal (Beware of clear and convincing evidence!)

12. Pardons Must first be granted a pardon by the pardon board Following a pardon, can argue the case is now resolved in the defendant’s favor under § 609A.02, Subd. 3 All records can be sealed Court “shall grant” under § 609A.03, Subd. 5 Beware of clear and convincing evidence!

13. Grand Jury Indictment but Dismissal Considered “resolved in favor” in State v. K.M.M., 721 N.W.2d 330 (Minn. Ct. App. 2006) Statutory Authority under § 609A.02, Subd. 3 All records can be sealed Court “shall grant” under § 609A.03, Subd. 5

14. Vacate and Dismiss (Ramsey Co.) Ramsey County treats cases where a plea has been vacated and the charges dismissed following probation as a “resolution in favor” of the defendant under § 609A.02, Subd. 3 Filing fee is even waived under § 609A.03, Subd. 1 All records can be sealed Court “shall grant” under § 609A.03, Subd. 5 Not true in other counties (Hennepin)

15. Juveniles Prosecuted as Adults Statutory Authority in § 609A.02, Subd. 2 All records can be sealed Contested

16. Juvenile Cases (kind of) Statutory Authority under § 260B.198, Subd. 6 “Subd. 6. Expungement. 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.” Juvenile petty offenses may be expunged under § 260B.235, Subd. 9 Only the record of the Juvenile Adjudication of Delinquency can be sealed In the Matter of the Welfare of J.J.P., 831 N.W.2d 260 (Minn. 2013) Contested

17. § 152.18 Drug Diversion Statutory Authority under § 609A.02, Subd. 1 All records can be sealed Contested (but many prosecutors do not object) “Restores the person to the status the person occupied before the arrest or indictment.” § 609A.03, Subd. 6 Hennepin County has begun to “uncouple” § 152.18 charges from DWI offenses

18. Misd. Small Amount of MJ Criminal convictions for a small amount of marijuana for an offense that occurred prior to April 11, 1976 (de-criminalization) Statutory Authority in § 152.18, Subd. 3 All records can be sealed Court “shall grant”

19. Gun Rights Conviction for a misdemeanor crime of domestic violence (domestic assault, disorderly conduct, interference with a 911 call, etc.) U.S.C. Title 18, Part I, Chapter 44, § 922(g)(9) U.S.C. Title 18, Part I, Chapter 44, § 921(a)(33)(B)(ii) – “shall not be considered convicted if expunged” Permits to carry and permits to purchase

20. Defendants with no BCA record Non-targeted misdemeanor offenses are not booked (thefts in particular) No booking means no arrest or conviction record with the BCA Petty misdemeanor offenses Police reports are less conspicuous if the defendant did not live in that jurisdiction

21. 15+ year-old offenses Under the Government Data Practices Act, BCA records are no longer public information 15 years after discharge from probation. § 13.87, Subd. 1(b) M.D.T. was silent on cases more than 15 years old, and the reasoning that the legislature mandated records be public no longer applies Benefit to defendant outweighs disadvantage to the public because records are no longer public At the least, records only available with defendant’s informed consent

22. Expungement in name only Some employers represent they will hire as long as a disqualifying criminal conviction has been expunged – even if only judicially “Safe Hiring Law” took effect August 1, 2009 ( § 181.981) prohibits the use of expunged employee criminal records in a civil action against the employer “Ban the Box” took effect January 1, 2014 ( § 364.021) that prohibits employer inquiries about criminal history until an interview or offer of employment Amounts to a certificate of rehabilitation

23. Executive branch departments that take no position or will agree to seal Argue that if an executive branch department does not object, those records should be sealed because there will be no basis for appeal (BCA does not respond if no opposition) Some executive branch departments will oppose, but will abide by an order to seal records and not appeal if one is granted by a judge (talk to agency representatives)

24. Inherent Authority Exceptions Constitutional right violation To protect a core judicial function Executive branch abuse of discretion - Police Department booking records

25. Which clients currently do not find expungement a meaningful remedy?

26. Plea and/or conviction Inherent authority only where the Defendant wants executive branch records truly hidden Multiple convictions

27. Driving Offenses/DWIs § 171.12 requires record keeping by the Department of Public Safety Inherent authority is trumped by legislative mandate Felony convictions involving use of a motor vehicle, DWIs, accidents, IPS must be permanent DWIs have possible lifetime enhancement issues (B-cards, felonies)

28. Predatory Offender Registrants Expungement is prohibited under § 609A.02, Subd. 4 “Convicted of an offense for which registration is required under § 243.166” Anyone ever charged with an offense where registration was required and all charges were ultimately not resolved in defendant’s favor But, still possible for juvenile adjudications of delinquency

29. Not Guilty By Mental Illness Not considered “resolved in favor” under § 609A.02, Subd. 3 Still may petition under inherent authority

30. Gun Rights – Crimes of Violence Expungement of a crime of violence (§ 624.712, Subd. 5) will not cure ability to possess firearms Under § 609A.03, Subd. 5, expungement orders for crimes of violence must state the person is still not entitled to ship, transport, possess or receive firearms for life Should do a petition under § 609.165, Subd. 1d instead

31. Partial Expungement Where a Defendant has been charged with multiple counts, pleads guilty to one and the others are dismissed The court is not allowed to expunge the dismissed counts - State v. A.V.G., No. A09-892 (Minn. Ct. App. 2010) All charges of a single incident must be resolved in favor of Defendant Administrative nightmare

32. DHS Disqualifications Expunged record may be opened for purposes of a background study under § 245C.08 unless the expungement order is directed at the Commissioner of DHS DHS is an executive branch department State v. M.L.A, n/k/a M.L.M., 785 N.W.2d 763 (Minn. 2010) reaffirmed courts may not order DHS to seal records

33. Alternative Strategies, Arguments, Practice Tips

34. Limit criminal records Avoid a conviction to keep records off the public internet databases for MNCIS and BCA Reduce convictions to petty misdemeanor offenses to keep records off the BCA public internet database Avoid jail sentences for those who were never booked Advise especially misdemeanor offender clients to avoid having a warrant issued at all costs – make court appearances, keep in contact with probation If a plea deal involves pleading guilty to a lesser count, consider amending the more serious count to cover it up on both the public and courthouse MNCIS database

36. Ensure executive branch records are correct (i.e. stay of imposition still noted as a felony with the BCA) Request driving record be “cleaned” by DPS Include language in the order that “pursuant to Minn. Stat. § 332.70, Subd. 3(b), a private data collection company is required to delete records related to this offense.” Ask to have the executive branch departments update their records to reflect judicial expungement pursuant to § 13.04, Subd. 4, which requires public and private data must be accurate Plea withdrawal Argue enhancement not a prohibition to expungement. See § 609A.03, Subds. 6 (152.18) and 7(b)(1) (can be reopened for prosecution)

37. Proposed Legislative Changes

38. Chaired by Rep. Debra Hilstrom and Sen. Bobby Jo Champion Began meeting in September 2013; have met four times Four main ideas/proposals Expungement Working Group

39. Rep. John Lesch bill: statutory authority for all types of cases (leave it to judicial discretion) County Attorney’s Position Paper: Waiting periods: 15 (F), 10 (GM), 7 (M), 3 (PM) years for person crimes, 5 (F), 3 (GM), 2 (M), 1 (PM) years for property and drug offenses) Council on Crime and Justice Proposal: had waiting periods; now on board with Champion Senator Champion Proposal: 3 years (PM, M, GM), 5 years (F levels 1 and 2), except domestics and crimes of violence

40. Statutory authority to include stays of adjudication and plea diversions after one year Seal all records in juvenile cases Broader statutory authority for more cases Waive hearings for “shall grant” expungements (Hennepin County started July 7, 2011) Regulate private data harvesting companies Outlaw for-profit websites like Mugshots.com Require employers to disclose disqualifying criminal records and which private data harvesting company was used

41. Juvenile records Felony offenses for offenders age 16 and 17 Passed in 1986 in response to serious juvenile offenses of interest to the public House File 392 passed in 2013, that mandated the court continue to have open hearings, but no record available on MNCIS The Supreme Court Juvenile Rules Committee has rejected the legislation as overstepping separation of powers, and as too cumbersome Hearing was held on Monday, February 17, 2014