This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0560
State of Minnesota,
Respondent,
vs.
A. Y. G., a/k/a A. Y. L.,
Appellant.
Filed December 15, 2014
Reversed
Reyes, Judge
Ramsey County District Court
File Nos. 62K007002130; 62K007002287; 62K704003454
62T707013819; 62CR122120
Lori Swanson, Attorney General, Gail A. Feichtinger, Assistant Attorney General,
St. Paul, Minnesota (for respondent)
A.Y.G., Brooklyn Park, Minnesota (pro se appellant)
Considered and decided by Reyes, Presiding Judge; Cleary, Chief Judge; and
Worke, Judge.
UNPUBLISHED OPINION
REYES, Judge
Appellant, pro se, challenges the district court’s order denying her request to
expunge criminal records maintained by the Minnesota Department of Human Services
(DHS). Because the district court abused its discretion in ruling that DHS submitted
clear and convincing evidence sufficient to overcome the statutory presumption favoring
expungement, we reverse.
FACTS
Appellant sought expungement of her criminal records relating to five separate
court files from the Second Judicial District maintained by the Judicial and Executive
Branches. All five charges were eventually resolved in appellant’s favor. In 2004,
appellant was charged with a violation of an order for protection and disorderly conduct,
but the charges were dismissed later that year. On May 29, 2007, appellant was charged
with public nuisance, but the charges were dismissed six months later pursuant to a
continuance for dismissal. On June 14, 2007, appellant was charged with felony assault
in the second degree. Twelve days later, appellant was charged with violation of an order
for protection and a domestic-abuse no-contact order. All of these charges were
dismissed on February 20, 2008, by the Ramsey County Attorney’s Office. Finally,
appellant was charged with misdemeanor theft in 2012 and was found guilty by a jury.
This court reversed the conviction in an order opinion dated October 2, 2013. State v.
Gibson, No. A12-2072 (Minn. App. Oct. 2, 2013) (order).
Pursuant to section 245C.15, subdivision 1, of the Minnesota Department of
Human Services Background Studies Act (BSA), DHS used appellant’s 2007 second-
degree assault charge as a basis for disqualifying her from any position allowing direct
contact with persons receiving services from programs licensed by DHS, Minnesota
Department of Health, Department of Corrections, and unlicensed Personal Care Provider
Organizations. Minn. Stat. §§ 245C.01-.34 (2012) (providing title in section 245C.01).
2
DHS determined that information from the St. Paul Police Department and the Ramsey
County District Court showed that there was a preponderance of evidence that appellant
committed felony second-degree assault. On February 20, 2014, DHS notified
appellant’s employer, Summit Fiscal Agency, of appellant’s disqualification.1 Appellant
was subsequently terminated from her job at Summit Fiscal Agency, a position she had
held for three years.
Appellant petitioned the court for expungement of her criminal record, and a
hearing was held on March 5, 2014. At the hearing, DHS argued that it needed access to
appellant’s record in order to respond to any potential requests for reconsideration. The
district court took the matter under advisement. On March 14, 2014, the district court
granted expungement of all five charges in appellant’s record maintained by the Judicial
and Executive Branches, but denied expungement of records maintained by DHS.2 The
district court correctly stated that, under Minnesota law, a petitioner is presumptively
entitled to expungement unless the public’s interest in keeping the records unsealed
outweighs the disadvantages the petitioner will face if expungement is not granted.
Minn. Stat. § 609A.03, subd. 5(b) (2012). The court noted that criminal records are a
necessary part of a DHS investigation into whether to disqualify an individual from
working in order to protect vulnerable citizens. Because expunging the records would
1
On February 20, 2014, DHS also sent a letter to appellant notifying her of the
disqualification. The letter was originally sent to the wrong address. DHS sent the letter
to the correct address on March 11, 2014.
2
The public-nuisance charge was expunged in its entirety because public nuisance is not
a disqualifying offense under the statute. DHS’s records of the other four charges
remained exempt.
3
impede the administrative investigation process, the district court concluded that DHS
“has provided specific reasons as to why the public’s interest outweighs [appellant’s]
interest.” Appellant challenges the district court’s decision on appeal.
DECISION
Courts have the authority, both statutory and inherent, to grant expungement relief.
State v. Davisson, 624 N.W.2d 292, 295 (Minn. App. 2001), review denied (Minn. May
15, 2001). Appellant’s petition for expungement and the district court order granting
expungement were based solely on statutory grounds. The Minnesota expungement
statute allows for the expungement of criminal records if all pending actions and
proceedings were “resolved in favor of the petitioner.” Minn. Stat. § 609A.02, subd. 3
(2012). “A dismissal is, in a plain sense, a determination in the defendant’s favor. If
there was no valid admission or finding of guilt, the courts have held that such
proceedings were resolved in favor of the petitioner.” State v. K.M.M., 721 N.W.2d 330,
333 (Minn. App. 2006).
Under the expungement statute, a petitioner is presumptively entitled to
expungement of criminal records “unless the agency or jurisdiction whose records would
be affected establishes by clear and convincing evidence that the interests of the public
and public safety outweigh the disadvantages to the petitioner of not sealing the record.”
Minn. Stat. § 609A.03, subd. 5(b). Clear and convincing evidence requires “more than a
preponderance of the evidence but less than proof beyond a reasonable doubt” and is
shown where “the truth of the facts asserted is highly probable.” Weber v. Anderson, 269
N.W.2d 892, 895 (Minn. 1978) (quotation omitted). We review for abuse of discretion
4
the district court’s determination that DHS met its burden of persuasion. See State v.
R.H.B., 821 N.W.2d 817, 822 (Minn. 2012) (finding that when the district court is tasked
with weighing the equities in a balancing test, the appropriate standard of review is abuse
of discretion).
I. Appellant’s arguments
Appellant does not explicitly argue that the district court abused its discretion
when it denied her request to expunge records maintained by DHS. Instead, appellant
makes several arguments related to DHS’s initial disqualification determination and her
due-process rights.
First, appellant argues that the preponderance-of-the-evidence standard is not the
correct standard to apply when making disqualification determinations. Appellant points
out that “non-convictions” are not listed under section 245C.14, subdivision 1(1), of the
BSA and argues that, although section 245C.15 references dismissals, “one has to assume
that the dismissal derived from a conviction or plea of guilt and not an individual who has
a non-conviction.” Minn. Stat. § 245C.14, subd. 1(1) (2012); Minn. Stat. § 245C.15
(2012). But appellant did not raise any statutory interpretation arguments at the district
court and is barred from bringing one for the first time on appeal. See Thiele v. Stich, 425
N.W.2d 580, 582 (Minn. 1988). Moreover, appellant’s argument ignores the clear
language of section 245C.14, subdivision 1(a)(2), which permits disqualification if “a
preponderance of the evidence indicates the individual has committed an act or acts that
meet the definition of any of the crimes listed in section 245C.15.” Minn. Stat.
5
§ 245C.14, subd. 1(a)(2) (2012). Assault in the second degree is a crime listed under
section 245C.15. Minn. Stat. § 245C.15, subd. 1 (2012).
Second, appellant argues that the evidence DHS relied on when making the
disqualification determination—namely, the police report detailing the second-degree
assault charge—was insufficient to rise to the level of a preponderance of the evidence.
This argument mischaracterizes the issue on appeal. The crucial issue before this court is
whether the district court abused its discretion when it determined that DHS had
overcome the statutory presumption favoring expungement by providing clear and
convincing evidence that “the interests of the public and public safety outweigh the
disadvantages to the petitioner of not sealing the record.” Minn. Stat. § 609A.03, subd.
5(b) (2012). Challenges to the preponderance-of-the-evidence determination are more
apt for the reconsideration process laid out in Minnesota Statutes § 245C.21 (2012).
Under that process, a disqualified individual may request reconsideration within 30 days
of a disqualification decision. Minn. Stat. § 245C.21, subd. 2 (2012).3 If reconsideration
is denied, a person who has been permanently disqualified based on a preponderance of
the evidence, rather than a conviction, has the right to a fair hearing. Minn. Stat.
§ 245C.27, subd, 1(a) (2012); see also Minn. Stat. § 256.045, subd. 3(a)(10) (2012). An
aggrieved party may seek review of the fair hearing determination through a writ of
certiorari to this court. Minn. Stat. §§ 480A.06, subd. 3, 606.01 (2012). At that point,
3
Under certain circumstances, DHS may set aside a disqualification, but this does not
apply to those permanently disqualified pursuant to section 245C.15, subdivision 1.
Minn. Stat. § 245C.24, subd. 2 (2012). Appellant was permanently disqualified because
second-degree assault is listed under section 245C.15, subdivision 1.
6
this court would review the quasi-judicial agency decision for “questions affecting the
jurisdiction of the [agency], the regularity of its proceedings, and, as to the merits of the
controversy, whether the order or determination in a particular case was arbitrary,
oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any
evidence to support it.” Anderson v. Comm’r of Health, 811 N.W.2d 162, 165 (Minn.
App. 2012), review denied (Minn. Apr. 17, 2012). Appellant’s challenges to DHS’s
initial disqualification decision are more appropriately handled at that stage.
Third, appellant makes a general due-process argument based on the Fifth
Amendment. As required by section 245C.17, DHS notified appellant of her
disqualification and informed her about the reconsideration process. Minn. Stat.
§ 245C.17 (2012). While the letter was originally sent to the wrong address, DHS
corrected its mistake as soon as it learned of it and allowed the 30-day deadline to begin
once the letter was delivered to the correct address. Appellant contends that this mistake
should rescind the disqualification based on section 245C.22, subdivision 2, which states
that “[t]he commissioner shall rescind the disqualification if the commissioner finds that
the information relied upon to disqualify the subject is incorrect.” Minn. Stat. § 245C.22,
subd.2 (2012). Because nothing in the record indicates that the disqualification decision
was based upon the mistake in appellant’s home address, it is unclear how her due-
process rights have been violated.
Finally, appellant argues that DHS violated the constitutional prohibition against
double jeopardy because DHS does not have the authority to retry appellant for offenses
for which she was deemed innocent. The Double Jeopardy Clauses of the United States
7
and Minnesota Constitutions operate to protect a criminal defendant from (1) a second
prosecution for the same offense after acquittal; (2) a second prosecution for the same
offense after conviction; and (3) multiple criminal punishments for the same offense.
State v. Humes, 581 N.W.2d 317, 320 (Minn. 1998). The Double Jeopardy Clause
protects “only against imposition of multiple criminal punishments for the same offense.”
Id. (emphasis in original). Because DHS has not imposed additional criminal
punishments, appellant’s double jeopardy argument is unavailing.
II. The district court’s determination
As previously noted, appellant, who appears pro se, does not explicitly argue that
the district court abused its discretion when it denied her expungement request. Despite
appellant’s oversight, this court will address whether an abuse of discretion occurred.
See State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990) (“[I]t is the
responsibility of appellate courts to decide cases in accordance with law, and that
responsibility is not to be diluted by counsel’s oversights, lack of research, failure to
specify issues or to cite relevant authorities.”) (quotation omitted). In doing so, this court
asks whether the district court abused its discretion by ruling that DHS had presented
evidence sufficient to overcome the statutory presumption favoring expungement. See
R.H.B., 821 N.W.2d at 821.
The parties do not dispute that appellant’s second-degree assault charge was
eventually dismissed, thereby entitling appellant to a statutory presumption favoring
expungement. See Ambaye, 616 N.W.2d at 257. In State v. R.H.B., the supreme court
clarified that the presumption can only be overcome if the party opposing expungement
8
“establishes by clear and convincing evidence” that it met its burden of persuasion. 821
N.W.2d at 820-22; Minn. Stat. § 609A.03, subd. 5(b). In R.H.B., the court held that the
state failed to meet its burden of persuasion because the three affidavits it submitted
presented “little more than generalities explaining why it is beneficial . . . to maintain the
criminal records of an acquitted defendant.” 821 N.W.2d at 822. The court referred to
such statements as “unremarkable and generalized, and could be submitted in nearly
every expungement case.” Id. Finally, the court analyzed the specific disadvantages to
the petitioner, noting that “inherent disadvantages” are suffered by any expungement
petitioner. Id. at 824.
Here, DHS presented minimal evidence to the district court. DHS argued that
refusing to seal the records would benefit public safety because “[d]efendant was charged
with assaultive behavior. Defendant works with vulnerable populations, and she has
indicated that she wishes to continue to do so. Accordingly, the balancing test clearly
weighs in favor of denying Defendant’s petition.” At the expungement hearing, DHS
argued that because appellant could potentially request reconsideration in the future, DHS
would need access to the records in order to carry out that administrative proceeding. In
support of these two arguments, DHS submitted only one exhibit: the original letter
notifying appellant that she had been disqualified. DHS makes the same arguments on
appeal.
DHS’s arguments are mere generalities. When faced with a statutory presumption
favoring expungement, DHS is burdened with providing clear and convincing evidence
showing that keeping the records unsealed would benefit the public such that the burden
9
on the petitioner would be outweighed. For example, DHS argues that appellant’s simple
indication that she wishes to continue her work with vulnerable adults is enough to
overcome the burden of persuasion. But such an argument is certainly not enough to
constitute clear and convincing evidence sufficient to overcome the statutory presumption
favoring expungement. Instead, these statements are of the type that are “unremarkable
and generalized, and could be submitted in nearly every expungement case.” R.H.B., 821
N.W.2d at 822.
DHS’s argument relating to the need for future access to the records is
unconvincing. At its core, DHS argues that it might need access to appellant’s records in
the future. In addition to being circular, this argument once again is unremarkable,
generalized, and of the type that could be offered in every expungement case. If allowed
to make this type of argument here, then DHS could make a similar argument at every
future expungement hearing in which the reconsideration process has not been exhausted.
In similar scenarios in the future, the district court would be reduced to rubberstamping
DHS opposition to the expungement petition. Because this argument “could be
submitted in nearly every expungement case,” it is little more than the type of generality
that the supreme court warned against. Id.
Finally, DHS fails to acknowledge the specific disadvantages to appellant and how
the interests of the public and public safety are outweighed by those disadvantages. In
R.H.B., the supreme court upheld a decision granting expungement when the only
specific disadvantages to the defendant were “inherent disadvantages caused by unproven
criminal accusations—such as personal and professional reputational damage.” Id. at
10
824. While R.H.B. illustrated that “a petitioner is not required to prove specific
disadvantages that he or she will suffer if the petition is denied,” here, the appellant can
in fact point to specific disadvantages—the loss of her job which she had held for the past
three years, and the potential loss of future employment in her field. Id. Because
appellant faces both inherent and specific disadvantages, the benefit to the public must be
that much more substantial if the balancing test is to weigh in favor of expungement. As
the previous discussion indicates, no such showing was made.
Because the only evidence offered appears to be of the type specifically
discredited in R.H.B., the district court abused its discretion when it determined that DHS
offered clear and convincing evidence that the benefits to public safety outweigh the
burden on appellant.
Reversed.
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State of Minnesota v. A. Y. G., a/k/a A. Y. L.
Combined Opinion