Many Minnesotans with a criminal record impeding their chances for employment and other opportunities can pursue a second chance by petitioning for expungement of their record. The new Second Chance Law, effective January 1, will now provide a meaningful and full remedy. Ambiguities remain for the courts to address and access to the remedy remains limited, but for those who qualify, there is new hope.
Effective January 1, 2015, Minnesota’s new Second Chance Law will overhaul the current expungement law. The end result is that more Minnesotans will finally get a meaningful remedy when they successfully petition for an expungement of their criminal record.
While expungement has been an available remedy previously, in practice it did not accomplish its purpose. Limitations in the statute and in the scope of relief ordered pursuant to the inherent authority of the court frustrated those seeking relief. Understanding the impact of the new law therefore requires some understanding of the basics of expungement, the current law, and its limitations.
An expungement is a court-ordered sealing of a person’s criminal record, which may be held by several government agencies. A person seeking an expungement typically must prove by clear and convincing evidence that the benefit in having their record sealed is commensurate with the disadvantages to the public.1 The record is not destroyed.2 And the record may be opened under specific circumstances prescribed by Minn. Stat. §609A.03, subd. 7a.
A criminal record is more than just the record relating to the criminal charges or citations and the disposition. In addition to the court records, a criminal record may include some or all of the following public information: arrest data, requests for service information, transcripts of 911 calls, responses to requests for services, criminal investigative data, booking photographs, identification data, and DNA data.3 And this information may be held by some or all of the following government agencies: Bureau of Criminal Apprehensions (“BCA”), Minnesota Court Information System, police departments, city or county attorney’s offices, sheriff’s departments, Attorney General’s Office, Department of Corrections, and Department of Human Services (“DHS”).
Individuals seek an expungement of their criminal record so that the record may not have to be disclosed in an application and will not show up on a background check performed when applying for jobs and housing. In a 2012 survey,4 the Society for Human Resource Management found that 69 percent of employers performed criminal background checks for all job candidates, while 18 percent did so for select job candidates. That means that 87 percent of employers run criminal background checks. And it’s not just felonies or violent crimes that stand in the way of a job offer being extended to a qualified candidate. Twenty-six percent of employers in this survey stated that they would not extend an offer to someone with a nonviolent misdemeanor conviction. The impact of a misdemeanor conviction is compounded by the fact that for individuals licensed by the DHS certain misdemeanor convictions will result in a seven-year disqualification.5
A criminal record can have an adverse impact even if there is no conviction. For instance, a retail store manager not uncommonly will decline to further consider a job applicant if a background check reveals the applicant has an arrest record, regardless of the outcome in criminal court. When there are other qualified candidates, the mere fact of a candidate’s arrest may be enough to prompt many employers to move on to the next applicant.
The wide range of potentially damaging information that may turn up during a background check of a record gives the individual involved a strong incentive to seek an expungement. An old criminal conviction that oftentimes is not representative of the individual today may mean the difference between getting a job or apartment or not.
There are essentially two types of expungement under current law: an expungement on statutory grounds and an expungement pursuant to the court’s inherent authority.
The statutory grounds for an expungement are found in Minn Stat. §609A.02. Currently, the statutory grounds are limited to the following:
- Certain first-time drug possession offenses resolved under specific statutes;
- Offenses committed by juveniles who were prosecuted as adults; and
- When criminal proceedings were resolved in favor of the petitioner.
Courts have interpreted “resolved in favor of the petitioner” quite narrowly to mean only when there has been no admission or finding of guilt. This essentially limits application of this principle to criminal proceedings that resulted in a dismissal, acquittal, completion of a diversion program without admitting guilt as a prerequisite,6 or a negotiated resolution to a continuance for dismissal (commonly referred to as a “CWOP”).
This means that even the positive resolution of a stay of adjudication—whereby the defendant pleads guilty but said plea is never accepted by the court (meaning the defendant is never adjudicated) and the charges are dismissed upon successful completion of the terms of the plea negotiation—is not a resolution in favor of the petitioner, because it involves an admission of guilt.7 The same can be said for any resolution that requires the defendant to admit guilt as a prerequisite to assignment to a diversion program.8 And finally, because the statute states that “all pending actions or proceedings” must be resolved in the petitioner’s favor, charges dismissed pursuant to a plea to a different charge arising out of the same conduct are said not to be resolved in the petitioner’s favor.9
As you might expect, there are few individuals with a criminal record who could qualify for an expungement under the current statutory grounds. What’s left is for the individual to pursue an expungement under the court’s inherent authority.
An “inherent authority” expungement essentially offers the same remedy for those petitioners who could not get a statutory expungement, with one key difference: the scope of relief. Expungements under the court’s inherent authority can only seal records held by the judicial branch; they do not seal records held by the executive branch (e.g., the BCA).10
The Minnesota Supreme Court in State v. M.D.T.11 relied upon the separation-of-powers argument when holding that a district court has the inherent authority to expunge only its own records and not those held by the executive branch, even though the records were generated by the judicial branch. The court further noted that sealing records held by the executive branch contravenes the intent of Chapter 609A, as determined by the legislature.
Under current law, any petitioner granted an expungement under the court’s inherent authority had his or her criminal record sealed in the judiciary, but the all-important public records held at the BCA, which are used most often during criminal background checks, remained unsealed. The result is a remedy that doesn’t really remedy anything. A client applying for a job or apartment can explain they have an expungement from the court and submit the expungement order with their application. But, why should this be necessary if a court has determined that they were entitled to an expungement after the petitioner proved by clear and convincing evidence that they deserved a second chance?
Thankfully, the new Second Chance Law fixes this major issue by making statutory expungement available in a much broader range of circumstances.
The Second Chance Law
As before, expungement based on statutory grounds will seal records held by certain government agencies. The new law dramatically expands the statutory grounds for an expungement to encompass convictions of all levels of crimes—including felonies.
Under the new Minn. Stat. §609A.02, subd. 3, a petitioner may seek an expungement of his or her criminal record not only on the previously stated statutory grounds for an expungement, but also if:
- All pending actions or proceedings were resolved in favor of the petitioner. If a petitioner seeks an expungement on this ground, the burden of proof shifts to the state to show by clear and convincing evidence that the petitioner is not entitled to an expungement;
- The petitioner has successfully completed the terms of a diversion program or stay of adjudication and has not been charged with a new crime for a least one year since completion of the diversion program or stay of adjudication. As above, the burden shifts to the state if the petitioner seeks an expungement on this ground;
- The petitioner 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;
- The petitioner was convicted of or received a stayed sentence for a gross misdemeanor and has not been convicted of a new crime for at least four years since discharge of the sentence for the crime; or
- The petitioner was convicted of or received a stayed sentence for a felony violation of an offense listed and has not been convicted of a new crime for at least five years since discharge of the sentence for the crime. Paragraph (b) of the new statute lists 50 low-level, nonviolent felonies that can be expunged.
An important caveat to these new grounds for an expungement is that they do not apply to crimes of domestic violence—such as domestic abuse, sexual assault, violations of an order for protection or a restraining order, stalking, and violations of a domestic abuse no-contact order—until July 15, 2015. The reason why these crimes are separated out until July 15 is that the legislature couldn’t agree how to handle them and ran out of time. In the next session the legislature may decide to handle them separately or take no action; if the legislature takes no action these crimes can be expunged like any other misdemeanor or gross misdemeanor crime in mid-July.
The new Second Chance law also allows people seeking an expungement to get one without filing a petition if the prosecutor agrees in advance.12 If this occurs, no petition is necessary and the court shall seal the criminal record, unless the court determines on its own authority that the public interest in the criminal record outweighs the disadvantages to the petitioner in not having his or her record sealed. The prosecutor may even agree to this at the time the criminal matter is resolved. Consequently, attorneys representing criminal defendants would be wise to ask for the prosecutor’s agreement at the time a resolution is negotiated, if the client agrees. How this will work in practice is unknown at this time. The new provision seems to indicate that a letter to the court would be in order. But is it necessary to copy the other government agencies involved in order for the expungement order to have its full effect? It would seem prudent and appropriate to take that route, but whether that is necessary remains unclear.
The new law also enumerates 12 factors every court will now consider when making its determination:
- The nature and severity of the underlying crime, the record of which would be sealed;
- The risk, if any, the petitioner poses to individuals or society;
- The length of time since the crime occurred;
- The steps taken by the petitioner toward rehabilitation following the crime;
- Aggravating or mitigating factors relating to the underlying crime, including the petitioner’s level of participation and the context and circumstances of the underlying crime;
- The reasons for the expungement, including the petitioner’s attempts to obtain employment, housing, or other necessities;
- The petitioner’s criminal record;
- The petitioner’s record of employment and community involvement;
- The recommendations of interested law enforcement, prosecutorial, and corrections officials;
- The recommendations of victims or whether victims of the underlying crime were minors;
- The amount, if any, of restitution outstanding, past efforts made by the petitioner toward payment, and the measures in place to help ensure completion of restitution payment after expungement of the record if granted; and
- Other factors deemed relevant by the court.13
The new law makes it clear that sealed records will not be opened for a background study by the DHS unless the DHS was properly served with notice of the petition and the expungement order is directed specifically to the DHS. Similarly, a court order must be directed to the Board of Teaching or the licensing division of the Department of Education in order for the sealed record not to be opened during a background check for a teacher or related applicant.
An individual will now be able to maintain a civil action against any government agency that knowingly opens or exchanges an expunged record in an unauthorized manner.14 The individual will be entitled to damages, costs, and reasonable attorneys’ fees. And the government entity may be liable for exemplary damages of not less than $1,000 or more than $15,000 for each violation. Further, the state is deemed to have waived any immunity claim for any action brought under this section.
While this new law is well-thought-out and addresses the main issues with the old law, there remain a few ambiguities that will be resolved by the courts over time. The most obvious ambiguity is how the courts will interpret a stay of imposition for purposes of applying the right waiting period and determining whether a conviction may be expunged under the new statute. This distinction is important for two reasons. First, if the conviction is deemed a felony, the criminal record may not be expunged if the conviction is not included in the list of felonies in the statute. But, if it is deemed a misdemeanor, then any conviction may be expunged. Second, there is a three-year difference in the waiting period.
For those unfamiliar with this result, a stay of imposition means the person is adjudicated guilty of the charge, but the court stays imposition of sentence and instead places the defendant on probation, subject to numerous terms and conditions. If the defendant successfully completes probation, then either the conviction is vacated and the charges are dismissed, or the conviction of a felony or gross misdemeanor is deemed a misdemeanor. The question is: Does the court treat a stay of imposition as a felony, as charged and initially convicted, or as a misdemeanor, as the conviction is later deemed upon completion of the terms of probation?
Obviously, the appellate courts have not yet confronted this question with relation to expungement under the new statute. But a recent Minnesota Court of Appeals case sheds light on how the statute may be analyzed. In State v. Franklin, the defendant was sentenced under the career-offender statute that says: “the judge may impose an aggravated durational departure … if the factfinder determines that the offender has five or more prior felony convictions … .” 15 The defendant was convicted of a felony in 1990, but imposition of the sentence was stayed pursuant to Minn. Stat. §609.13; upon the defendant’s completing probation, the conviction was deemed a misdemeanor.
The court of appeals looked to the intent of the applicable statute, holding that the career offender statute is most concerned with the classification of the conviction, not the underlying criminal conduct giving rise to the conviction. Accordingly, the court found that the felony conviction, later deemed a misdemeanor, was a misdemeanor for purposes of applying the career-offender statute.
Arguments can be made on either side of this issue for expungement. On one hand, expungement law is concerned with sealing the criminal record. The underlying conduct is not an issue, only the classification of the conviction. And the criminal record will reflect the conviction being a misdemeanor conviction, not a felony, pursuant to a stay of imposition. On the other hand, the plain language of the new law speaks of the offense that the “petitioner was convicted of or received a stayed sentence for … .” It is unclear what the legislature intended by “stayed sentence for.” Nonetheless, it could form the groundwork for an argument that this language contemplated the possibility of a stay of imposition. Additionally, two of the twelve factors named in the statute require the court to consider the nature and severity of the underlying crime, and to determine whether there were any aggravating or mitigating factors relating to the underlying crime.
Another ambiguity is whether the courts will apply the one-year waiting period for all petitioners who completed a diversion program, including those whose disposition would be considered a resolution “in favor of” the petitioner when he or she completes a diversion program without an admission of guilt on the record. Arguably, in this latter scenario, the petitioner should be able to petition the court immediately for an expungement on grounds that the matter was resolved in his or her favor. But because the plain language states “successfully completed the terms of a diversion program,” it may be argued that the two situations no longer differ and the petitioner must wait for the one-year waiting period to elapse.
Finally, there is no explanation of how the court should interpret the waiting periods. For instance, when seeking an expungement of a misdemeanor, the petitioner must not be convicted of another crime for two years. Do the two years run forward from the date of discharge from the sentence or backward from the date the petition for the expungement is filed? The former could result in petitioners being barred from ever seeking an expungement if they are convicted of another offense during that window. That seems contrary to the intent and purpose of the new law, which is why the latter approach seems the most appropriate.
The bottom line is that this new Second Chance law will give that second chance to more Minnesotans than ever before. As practitioners, we can navigate our clients through this new law and help them put their best foot forward. And this is done not only by taking advantage of the new opportunities associated with the new law, but also in working with our clients to get the appropriate evidence they need to carry their burden. Such an effort includes but is not limited to: maintaining a log of all jobs or housing they applied for and were denied; keeping denial letters and following up on applications to obtain the reason for not being successful; obtaining certificates of completion for any treatment or counseling; getting character letters; and so forth. By doing this, you can help place your client in the best position to address each of the 12 factors and to get that second chance.
James H. Gempeler is the founding attorney of Gempeler Law, PLLC. He focuses his practice on criminal defense and expungement. You can visit his firm website at www.gempelerlaw.com or a website that he developed and maintains on the new expungement law: www.mnexpungements.com.
1 Minn. Stat. §609A.03, subd. 5.
2 Destruction of certain records is possible under very limited circumstances—which don’t occur often—pursuant to Minn. Stat. §299C.11, subd. 1(b).
3 See, Minn. Stat. §§13.82, 299C.10, and 299C.105.
4 Society for Human Resource Management. Background Checking—The Use of Criminal Background Checks in Hiring Decisions (07/19/2012). http://www.shrm.org/research/surveyfindings/articles/pages/criminalbackgroundcheck.aspx (last visited 11/24/2014).
5 Minn. Stat. §245C.15.
6 State v. Horner, 617 N.W.2d 452 (Minn. App. 2000).
7 State v. Davisson, 624 N.W.2d 292 (Minn. App. 2001).
8 State v. J.Y.M., 711 N.W.2d 139 (Minn. App. 2006).
9 State v. J.R.A., 714 N.W.2d 722 (Minn. App. 2006).
10 State v. M.D.T., 831 N.W.2d 276 (Minn. 2013).
12 Minn. Stat. §609A.025.
13 Minn. Stat. §609A.03, subd. 5(c).
14 Minn. Stat. §609A.04.
15 State v. Franklin, A13-1129 (Minn. App. 05/27/2014) (emphasis in the original). Slip op. at http://mn.gov/lawlib/archive/ctappub/2014/opa131129-052714.pdf