Expungements – A New Meaning

12 Apr

The Minnesota Court of Appeals recently made a major departure in the impact and effectiveness expungements will have going forward. Expungements are designed to seal all records relating to the arrest, charge, and subsequent conviction. But, because of separation of powers concerns, the courts had refused to extend an expungement order beyond the judiciary branch of the government. Meaning, even after a person successfully had his or her criminal records expunged, the Bureau of Criminal Apprehension, for instance, still maintained and publicly disseminated its records because it was part of the executive branch of the government and not subject to the expungement order. So, truly, the effect of an expungement order was limited.

The Minnesota Court of Appeals broke away from recent precedent in State of Minn. v. M.D.T., 2012 WL 1149347 (Minn. Ct. App. 2012). Deciding that the purpose behind an expungement is not being served in its current fashion, the Court of Appeals held that both the judiciary and executive branch records can be sealed by an expungement order. The court acknowledged that it had narrowly construed previous case law when it essentially determined that executive branch records could never be expunged. It further explained that under this narrow interpretation, “the current state of the law eviscerates the authority of courts to issue meaningful orders and permits a serious infringement of an individual’s fundamental right ….” It analyzed how the BCA maintains and disseminates records online for 15 years, and that said records are routinely utilized in backgrounds checks for employment, housing, lending, and state licensing. By restricting expungement orders to just the judiciary branch, the judiciary branch essentially ceded its role of offering a true remedy to those entitled to it or determining fair punishment of offenders. As the court noted, if the effects of the crime linger for a lifetime, prohibiting meaningful employment, the crime’s punishment is excessive.

Yet, the separation of powers tension between the judiciary and executive branches remains. To preserve this separation of powers, while also affording persons true relief in their expungements, the Court reasoned that the executive branch record-keeping function derives from the judiciary branches function in its determination of guilt. Under this derivation theory, the Court held that it may order both the judiciary and executive branches’ records be sealed under an expungement order.

This M.D.T. case is significant. Now, if the district court extends its order to the executive branch, an expungement order will have some real teeth to it. Despite this breakthrough, I still anticipate courts will be hesitant in exercising this new authority. It’s imperative for defendants to understand this case and prepare for the argument before the court as to whether expungement can only be effective if it seals both the judiciary and executive branch records. This is why it’s important that you have the right representation to guide you in getting your criminal records sealed.


This blog entry is written by James Gempeler, an associate at Thomsen Nybeck. James practices in the litigation area of the firm with a focus on general civil litigation, real estate litigation, construction litigation, and criminal law, particularly as the prosecutor for the Metropolitan Airports Commission.


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