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A petitioner who establishes that all pending criminal actions or proceedings have been favorably resolved is entitled to a rebuttable presumption of expungement under the statute.

State may have burden in some expungements

Jennifer Macaulay

A petitioner who establishes that all pending criminal actions or proceedings have been favorably resolved is entitled to a rebuttable presumption of expungement under the statute.

That Oct. 17 ruling from the Minnesota Supreme Court in State v. R.H.B. reinstated a Wright County judge’s expungement order for the petitioner, who was acquitted in 2009 of first- and third-degree assault.

One of R.H.B.’s attorneys, Jennifer Macaulay of St. Paul, said the opinion is a victory for her client and many others.

Macaulay said, “Most people who’ve been acquitted of criminal charges can tell you how important it is not only to have that acquittal, but also not to have those charges continuing to hang over your head for Lord knows how long.”

Her co-counsel, Charles Hawkins of Minneapolis, added, “The efforts by the executive branch to keep everybody’s records even when they’re found not guilty is really kind of Orwellian.”

Facts and decision

In R.H.B.’s expungement petition, he didn’t identify any specific disadvantages he would suffer if the court denied it.

That swayed the Court of Appeals in the state’s favor, reasoning that the District Court “had no specific disadvantage to R.H.B. against which to balance the interests of the public,” and that under the expungement statute, a petitioner “cannot rely solely on the fact that the criminal proceedings were resolved in his favor.”

Justice G. Barry Anderson’s 13-page decision reversed the intermediate appellate court.

Anderson explained that, read together, sec. 609A.02 subds. 3 and 5b create a two-step procedure for statutory expungement.

Under step one, if all pending criminal actions or proceedings have been resolved in favor of an individual, he or she may petition the district court to seal the records related to it, and there’s a statutory presumption that the court will grant the petition.

Under step two, the agency or jurisdiction holding the records may prevent expungement if it establishes by clear and convincing evidence that the public’s interests in keeping the records unsealed outweighs the disadvantages to the petitioner of not sealing the records.

“The decision of the court of appeals in this case contravenes the foregoing interpretation of the expungement statute. Contrary to the plain language of Minn. Stat. § 609A.03, subd. 5(b), the court concluded that ‘[a] petitioner seeking expungement cannot rely solely on the fact that the criminal proceedings were resolved in his favor,’” Anderson wrote. “That interpretation essentially ignores subdivision 5(b)’s preliminary language, which commands that a district court ‘shall grant the petition to seal the record’ if all pending proceedings have been resolved in the petitioner’s favor.”

The justices additionally found that the presumption hadn’t been rebutted. Two of the state’s affiants, both from the Wright County Department of Human Services, said that open criminal records help the agency to “streamline investigations” about past criminal activities and may help to demonstrate a history or pattern of misconduct. The other affidavit, a detective’s, stated that open criminal records give investigating officers “more tools,” “assist them in conducting their investigation,” “show potential gaps in their investigations,” and “help when they are questioning a suspect.”

“These statements are unremarkable and generalized, and could be submitted in nearly every expungement case,” Anderson wrote. “Tellingly, each of the State’s affiants said that he or she was ‘submitting [an] affidavit to outline why it is in the public’s interest to maintain a Defendant’s criminal arrest record,’ rather than why it is in the public’s interest to maintain R.H.B.’s criminal record.”

Although R.H.B.’s petition didn’t list any specific disadvantages that he would suffer without the expungement, “there are certainly inherent disadvantages caused by unproven criminal accusations — such as personal and professional reputational damage — that would be suffered by any expungement petitioner.”

Counsel’s Comments

Hawkins observed, “If you get charged with a crime and are found not guilty, you’re entitled to get your records sealed to put yourself back in the position you were in beforehand without having to prove that you’re disadvantaged by your government maintaining your records. The burden’s on the prosecution. They have to prove now, by clear and convincing evidence, that the public interests outweigh the defendant/petitioner’s – and not just some general basis to keep it, but the public interest has to be specific to an individual petitioner, which is very important.”

Macaulay emphasized, “It’s a critical part of our justice system to have that remedy available. And the notion that we have the burden, on top of being acquitted, to establish that we had some additional reason to want it off our record after acquittal kind of flies in the face of the rationale for having the statute in the first place.”

A pair of observers agreed.

Emily Baxter of the Council on Crime and Justice in Minneapolis said it’s likely that many other expungement petitioners will benefit from the opinion.

“You’re acquitted by a jury of your peers. And then there’s this criminal record, that’s easily accessible by potential employers, landlords and nosy neighbors — people with inquisitive minds who will use that record to define who you are, without paying any heed to the fact that you were actually acquitted,” Baxter said. “So we’re encouraged to see the court recognize the profound impact that these records can have.”

She added that from looking at countless pleadings from the state in opposition to petitions, “boilerplate” language, such as was used against R.H.B., is extremely common. “These objections are written with such strident authority that you would think they’re taking such personal umbrage at the petitioner’s request to seal the records. Yet, you realize there’s a good chance they never even read petition because there’s such generalized language. I’m happy the court said that doesn’t suffice.”

Like Baxter, St. Paul attorney Lindsay Davis has also examined a number of responsive pleadings from the state. Davis concentrates in expungements and is also an adjunct clinical professor at Hamline University School of Law.

Although in R.H.B.’s case, the county attorney filed affidavits and the matter was heard, elsewhere petitions are often processed on paper only, with little more than “boilerplate objections” from the state, she said. When they are heard, in Davis’ experience, if a representative of the state appears, sometimes that by itself influences courts to give them more deference than she believes is appropriate.

She said the decision will help not only those who are acquitted, like R.H.B., but also untold others who are investigated by police or arrested but not charged.

In addition, Davis said the opinion definitively settles the issue regarding the presumption. The Court of Appeals issued a similar holding in an unpublished January 2011 decision, State v. A.B.C., No. A10-641. Davis said it’s very helpful to binding authority at last.

Wright County Attorney Tom Kelly and assistant county attorney Greg Kryzer represented the state. Kelly did not return a call seeking commentary.

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