Solo Contendere

Here we are on Day 6 of the Minnesota Government Shutdown, and for those attorneys not practicing administrative, tax, or workers’ compensation law, things are operating pretty much as before. There has been plenty of coverage of all the people affected, but in the legal field, the courts are still open and operating as normal. There is one interesting legal issue to come out of the whole debacle, though, and it has to do with expungements.

For those who don’t practice in the quasi-criminal field, an expungement is a petition filed with the court to seal the criminal record of the petitioner. If a petitioner can show that enough time has passed since their sentence, that they have taken steps to rehabilitate themselves, and that they are continuing to suffer harm because of their criminal record (because, for instance, they have been turned down for a job, license, or housing), they can ask the court to expunge their record. Some expungements are statutory, but mostly they fall under the inherent power of the court. If the petition is granted, the record is sealed, and the petitioner starts his or her new life as a law-abiding member of society.

… or so the theory goes. In fact, while expungements are fairly regularly granted by the courts, what petitioners who go through the process don’t always know is that an expungement may actually have little or no effect. This is because courts thus far have most commonly only granted expungement of judicial records. The Bureau of Criminal Apprehension (BCA), however, is part of the executive branch, and the BCA keeps criminal records frequently searched by employers and others performing similar background checks. After going through all the work of getting their judicial records expunged, some petitioners find themselves no better off than they were before, because courts only rarely order the expungement of executive records: those kept by the BCA. Despite the purpose of expungements — to give a new start to people who have paid their debt to society — courts most often hide behind invoke the doctrine of separation of powers, and refuse to order the Executive to seal its records. The result of this is that a petitioner will spend their time and money (as well as the court’s time and money, and the time and money of the law enforcement agencies who participate in the process) going through a process with little practical effect.

So what does this have to do with the government shutdown? Well, Attorney General Lori Swanson and the Minnesota Judicial Council filed a petition with the Ramsey County District Court asking the court to rule on whether core functions of the judicial branch should remain open in the event of a shutdown. On June 28, the court issued its order, commanding the Office of Management and Budget — an agency of the Executive — continue to fund the judicial branch. The court based its determination, in part, on the inherent powers of the court. (Order, page 5).

Of course, the shutdown of the courts would be a constitutional crisis with the potential for harm dwarfing the harm done to those whose records are not expunged. It’s a 1L truism that bad facts make bad law, and just because the court was willing to use its inherent powers to prevent the shutdown of our courts does not mean they will use that same power to order the Executive to perform other functions (like sealing BCA records). But the two are not fundamentally different; in both cases, the court is using its inherent power to force the Executive to do something. The difference is merely in the level of harm suffered.

The court may — and likely will — continue to decline to order the Executive to seal its criminal records based solely on the inherent powers of the court. But they cannot argue that there is no precedent for it.