Home / Bar Buzz / Appellate court orders a second chance. Seriously. It means it.
Adam Sienkowski
Adam Sienkowski

Appellate court orders a second chance. Seriously. It means it.

Finally, someone has actually received a second chance under the statute designed to give it to him.

The second chance law allows a court to seal some criminal records, making it possible for former defendants to find housing and employment.

The Court of Appeals ordered the Hennepin County District Court to expunge J.E.H.’s  DWI conviction from 2008. It’s a remarkable order given that it is an unpublished order opinion and delivers a sharp bench slap to the District Court judge, apparently provoked by the fact it was J.E.H.’s second trip to the Court of Appeals

J.E.H. requested an expungement in 2008, but “The District Court referee, relying on generalized findings concerning the seriousness of DWI crimes and the importance of maintaining DWI records, denied the petition. The District Court minimized any benefits to J.E.H. from expungement,” wrote Judge Thomas Kalitowski in a Sept. 14 order.

The case went back down on remand because the judge erred in making findings and failed to address some of the statutory expungement factors.  The District Court effectively created a per se rule against expungement, the Court of Appeals said.

To no avail. On remand, the petition was again denied. The District Court again raised generalized concerns that J.E.H.’s records would be less available, but Kalitowski noted that the expungement statutes have accounted for these concerns and the records are still maintained for subsequent criminal prosecutions. The District Court appeared to ignore the law of the case, the Court of Appeals noted.

The District Court abused its discretion by determining that J.E.H. failed to prove the benefit from expungement is commensurate with the disadvantages to the public. Its ruling was arbitrary and against the facts of the record, the Court of Appeals said, sending it back down for entry of an expungement order.

The petitioner was represented by Adam Sienkowski and Jim Gilbert, a former justice.  The law of the case was ignored and on remand, the state didn’t put in any new evidence, said Gilbert.

At both oral arguments before the Court of Appeals, judges wondered who would qualify for expungement if J.E.H. didn’t, said Sienkowski. He said that the petitioner was exactly the sort of person the statute was written for — a one-time offender with an old conviction and exceptional community involvement who needed to get into Canada for his work.

Sienkowski and Gilbert scored at the Court of Appeals with two other arguments, the lawyers said. One was that when a criminal history is expunged, records remain for the future benefit of law enforcement so the harm to the public of having information destroyed is nonexistent. Secondly, the lawyers argued to the Court of Appeals that there are major new policies in the court system including rehabilitation, addiction treatment and restorative justice — and expungement is completely consistent with that paradigm.

The Legislature and the judicial branch are in sync on this issue, Gilbert said.

Unfortunately, J.E.H. is an unpublished order opinion and not to be cited as precedent. But it’s possible that the camel’s nose is firmly under the tent.

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