Supreme Court Quickly Reins in Court of Appeals on Expungements

6 Jun

Well, that didn’t last long. Just over a year ago, the Minnesota Court of Appeals departed from case precedent to grant an expungement that encompassed not only the sealing of judicial records, but also the sealing of executive records. The Minnesota Supreme Court quickly and decisively held otherwise.

Many have thought that expungements do not grant a meaningful remedy because records held by the executive branch – such as the Bureau of Criminal Apprehension (“BCA”) – are not sealed and, thus, still available for review by prospective employers or landlords. Understanding the unfairness caused by the BCA still making records available to the public – and likely abiding by the adage “the ends justifies the means” – the Court of Appeals opined that, because the executive branch records originate from court records, the judiciary’s inherent authority in granting an expungement extended to records created by the judicial branch, but maintained by the executive branch. In turn, an expungement under the Court of Appeals logic had a meaningful impact in sealing both the court records and also records held in the BCA. Arguably logical, this conclusion is unsupported by law and policy – at least according to the Supreme Court.

The Supreme Court’s analysis begins with its pronouncement that the judicial branch’s inherent authority is limited to what is necessary to the performance of a judicial function. And to the Supreme Court, the unfairness argument the Court of Appeals relied upon exceeds the court’s inherent authority: “[b]ut the authority the judiciary has to control its own records does not give the judiciary inherent authority to reach into the executive branch to control what the executive branch does with records held in that branch, even when those records were created in the judiciary.”

Further explaining this is the Supreme Court’s continued reliance on the “separation of powers” doctrine. To the Court, the extent of the relief sought via an expungement is limited by what it claims are clear “legislative expressions of policy.” First, under the expungement chapter (Minn. Ch. 609A), the legislature provides for the expungement of all records, including those maintained by the executive branch, for certain limited criminal records. Second, the Minnesota Government Data Practices Act (“MDPA”) establishes a presumption that records are public. Specifically, “data created, collected, or maintained by the BCA” relating to the crime, conviction, and sentence are public data for 15 years. Through these actions, the legislature, according to the Supreme Court, decided against extending the expungement remedy to include records held by the executive branch, such as the BCA.

So, is an expungement truly an “illusory remedy” as the dissent claims? Yes and no. It certainly does not have the teeth it would have if a district court could seal both the court records and BCA records. But, an expungement is still a viable option for those looking to clear their criminal history if doing so is important for job and/or housing considerations. Additionally, as the Supreme Court pointed out, there are certain criminal records wherein an expungement order can include sealing records maintained by the executive branch.

If you are considering an expungement, you should retain counsel to ensure that you are maximizing the remedy available and not simply getting an “illusory remedy.”

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, construction litigation, criminal defense, and is a prosecutor for the Metropolitan Airports Commission.


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