A lawsuit that accused the attorney general of distributing a critic’s expunged criminal records to journalists in the run-up to Tuesday’s primary has been voluntarily withdrawn.
The move came hours after plaintiff D’Andre Norman’s petition for a temporary restraining order against Attorney General Lori Swanson was denied Wednesday morning.
Norman, who describes himself as a former member of Swanson’s inner circle and a kind of office enforcer until he was fired in 2014, fared poorly in Ramsey County Judge John H. Guthmann’s courtroom Wednesday.
“At every level, the court concludes, at this stage of the litigation, that the plaintiff cannot make even a doubtful showing that he will succeed on the merits,” Guthmann said.
“I urge the parties to talk about this, follow whatever their own research reveals and not waste any time or resources if they don’t need to be expended,” Guthmann said. “That is simply some friendly advice from the judge.”
“Crystal clear, your honor,” replied Norman’s attorney, Marty Carlson, a former lawyer in the attorney general’s office now in private practice.
In his written notice of voluntary dismissal, Carlson does not concede that Norman has no case. But it is clear that he is following the judge’s advice.
“This voluntary dismissal is not intended and should not be construed as a concession that plaintiff’s claim lacks merit,” the letter says. “But it is motivated by the desire to respect the limited resources of all parties concerned, particularly in light of this morning’s motion.”
Guthmann convened the hearing Wednesday to hear Norman’s request for a temporary restraining order. The request sought to enjoin Swanson and her agents from disclosing any details about Norman’s expunged criminal record. It further sought an order commanding Swanson to contact anyone who had already received that information and “instruct them not to publish that information further.”
The request also sought an order requiring Swanson to preserve documents and a demand for expedited discovery.
The lawsuit was filed—in haste, Carlson admitted to the court—after Ben Wogsland, Swanson’s press spokesman, began distributing damaging information about Norman. Minnesota Lawyer received documentation on a civil case and a felony insurance fraud criminal complaint.
Carlson said the felony charge was dismissed after Norman complied with court conditions; Wogsland did not mention that in his email to Minnesota Lawyer. The civil case remains open.
Carlson said that Wogsland also sent an email to Minnesota Public Radio detailing five misdemeanor assault charges that predated his tenure with the attorney general’s office. Norman was hired to work there by former Attorney General Mike Hatch and stayed on for almost a decade under Swanson.
Minnesota Lawyer did not receive that email or any other information about Norman’s assault record from Wogsland, and he did not answer this newspaper’s questions when asked about it.
Norman maintains that in 2014, when he was still working for Swanson, Hatch represented Norman as a private, pro bono attorney to work out an expungement of Norman’s assault cases, all of which had already been dismissed.
In his civil complaint, Norman maintains that Hatch telephoned Swanson and put her on speaker phone to tell her that Norman’s records were expunged. If they were, then the Swanson’s office would have violated state law for distributing sealed criminal records to reporters.
Norman’s civil complaint accused the attorney general of violating Minnesota Statute 609A.01, which prohibits the distribution of expunged records without a court order.
It didn’t take long Wednesday for Guthmann to get a concession from Norman’s attorney that those records were, in fact, never expunged. Guthmann noted that the complaint never spells out the circumstances under which Hatch supposedly tried to get the records expunged.
More importantly, Guthmann said, legal procedures for securing expungements for Norman were never even initiated.
Any expungements under Chapter 609A require that a petition be signed by the defendant, Guthmann pointed out. The petition then has to be heard in open court, and there has to be a judge’s order. None of that happened, he said. Carlson conceded that was true.
Carlson said he filed his complaint believing that a private attorney could sign the petition for a client, which Guthmann pointed out is not true.
Carlson then shifted his argument to something only obliquely referenced in Norman’s complaint. He argued that even if a judicial expungement is lacking in the case, Norman had secured a non-judicial expungement by dint of the phone call between Hatch and Swanson.
That argument relies on Chapter 299c, which deals with the destruction of “identifiable data” by state agencies “upon demand.” Because Swanson was on notice in the phone call with Hatch that Norman wanted her to destroy identifiable information held by her office, she should have done so. That would have made it impossible for Wogsland to distributed information like criminal case file numbers to reporters.
“If that’s not identification data, I don’t know what is,” Carlson said.
No irreparable harm
Swanson, who finished third in the DFL primary the night before Wednesday’s hearing, was not present in the courtroom. Her attorney, Solicitor General Alan Gilbert, complained that Swanson’s legal team was never briefed on Carlson’s Chapter 299c argument. He argued that the case relied entirely on Chapter 609A, which the judge had already found didn’t apply.
Guthmann said that the reference to nonjudicial expungements was mentioned in the complaint, putting Swanson’s side on notice that the argument would be made.
Gilbert maintained that argument held no weight, either. He said that the statute’s plain language discusses things like fingerprints, known aliases and street names and identifying physical marks. Gilbert said that Carlson is wrong to claim that the catch-all phrase “other identification data” in the chapter refers to publicly available criminal case file numbers.
Further, Gilbert said, the chapter directs “the bureau”—meaning the Bureau of Criminal Apprehension—to destroy identifiable information on demand. Sheriff’s offices, police departments and juvenile community corrections also have obligations under the statute. The attorney general’s office does not, Gilbert said.
Ultimately, in ruling from the bench, Guthmann agreed.
“There is no obligation on the attorney general to collect identification data and therefore it would have no obligation to destroy identification data,” the judge said.
Guthmann ruled that Norman’s case failed to meet any of the Dahlberg factors for temporary restraining orders.
Foremost among those, Guthmann said, was Norman’s failure to show he had been “irreparably harmed” by the dissemination of publicly available court records. He suggested that Swanson suffered equally when Norman’s statements went on record in The Intercept last week to confirm claims by anonymous staffers that Swanson is running a highly politicized office.
Swanson, despite leading in some pre-primary polls, finished a distant third Tuesday. “The attorney general is probably wondering what went wrong,” Guthmann said. “And these news stories in this case are probably on her list. So harm is a two-way street.”
After the hearing, Norman expressed disappointment in the judge’s ruling. He still insists that Hatch represented to him that his records were expunged. He said he thought the records were being expunged not entirely for his own benefit. The move was supposed to protect Swanson from political damage, should Norman’s criminal record leak to the public while he was working in her office.
He said he believes that Swanson and Hatch directed Wogsland to send his court record to journalists. “They talk to each other about everything,” Norman said. “There are not too many decisions that are made without Hatch’s input or advice, in my experience of working with them.”
Regardless of the ruling, Norman said, he feels that his trust was betrayed by his former employer. “Right now, I am just heartbroken,” he said.
Norman said that, had he known his criminal records were still public, he might not have spoken to the Intercept.
“I never would have pushed this this hard,” he said. “I believed my records were expunged because my attorney—my friend, looked at as family—told me that my record was expunged.”