Eviction Expungements Criminal record Expungements Kristin Holmes Meghan Scully Southern Minnesota Regional Legal Services

SMRLS Southern Minnesota Regional Legal Services (SMRLS) provides, free, high quality legal help to low-income people in critical civil matters. Founded in 1909, SMRLS is the oldest legal aid provider in the state. Serving residents in 33 counties 9 Offices St. Paul (2), Shakopee, Albert Lea, Mankato, Moorhead, Rochester, Winona, Worthington

How to Get Help INTAKE Call: 651-222-4731 or 1-888-575-2954 Monday – Friday 9:00am – 11:45am; 1:00pm to 3:00pm Online: https://www.justice4mn.org/a2j/

Eviction Expungements Kristin Holmes

The facts Records of evictions (UDs) make it extremely difficult for individuals to find housing Many landlords look back as far as 7 years (84 months) Creates a cycle where individuals are forced to live in bad conditions (Only “bad” landlords will rent to them; once in the property, will not complain about repairs for fear of retaliation, etc.) Leads to de facto housing segregation Even worse in the Twin Cities than elsewhere* Housing segregation: evictions are disproportionally represented in racially concentrated areas of poverty Milwaukee: 1 in 8, New Jersey: 1 in 6, Maine is 21%, and North Minneapolis is half of all tenants have been evicted in the last 3 years

The basics What does expungement mean? Court filings are public records (even if no hearing) Evictions are reported and public as soon as they are filed Tenant screening agencies How can eviction cases be expunged? By motion (asking the court) By agreement (stipulation) of the parties

Without basis in law or fact In Court’s inherent authority Eviction Expungement By Agreement By Motion Without basis in law or fact In Court’s inherent authority

Traditional Expungement by Motion Three requirements, found in MN Statue 484.014 1. The case is without a basis in fact or in law; (What was wrong with the landlord’s case?) 2. Expungement is clearly in the interests of justice; (It would be fair to take this off my record because…) 3. And those interests are not outweighed by the public's interest in knowing about the record. (The reasons I need an expungement are more important than the public knowing about my record because…)

Traditional Expungement by motion, cont’D. Requirement 1: Without basis in law or fact Tenant prevailed: by court decision or dismissal Tenant should have prevailed There was an agreement that case would be expunged Requirements 2&3: Interests of justice/public’s right to know What is the harm to the tenant? What is the harm to the owner? What is the harm to a potential owner/landlord?

INHERENT AUTHORITY EXPUNGEMENT MOTION 504B.345 Subd. 1(c)(2): “[T]he court may expunge the records relating to the action under the provisions of section 484.014 or under the court's inherent authority at the time judgment is entered or after that time upon motion of the defendant.” This is discretionary Look to mitigating factors: no money owed to landlord still living in the unit victim of domestic violence whose break-lease was rejected cannot find another place to rent because of UD

HOW TO FILE A MOTION Fill out sample motion form (LawHelpMN or court website) and IFP/fee waiver Go to the courthouse where eviction was filed Ask the court for a hearing date Mail a copy of the motion papers to the owner/landlord File an affidavit of service with the court (Show up to court date)

BARRIERS TO EXPUNGEMENT Money: If a tenant owes the landlord money, the court will likely NOT grant the expungement. Lost at trial: If the eviction case went to trial and the tenant lost, the court will likely NOT grant the expungement. Contested hearing: Landlord and/or attorney for the landlord can show up to court date and contest expungement

EXPUNGEMENT BY AGREEMENT The parties can agree that the case will be expunged Requires no court appearance Can by done through Stipulation or Affidavit of Compliance Tenant should ask owner/landlord about this at the eviction hearing Often will agree “upon compliance” with Settlement Agreement Put it in writing in the Settlement Agreement If already complied (or case to be dismissed) at first appearance, try to get it immediately

Follow-ups after expungement Check MNCIS to make sure the case no longer appears Send expungement Order to Tenant Screening Agencies Court often provides a list of agencies Also available on LawHelpMN under “Housing—Expunging an Eviction Case” Mail out a copy of Order to every agency listed Upon request, Tenant Screening Agencies will notify anyone who received a tenant’s report (within the last 6 months) of the expungement If tenant has problems in the future, they can request their own Tenant Screening Report to check for errors

New possibilities SMRLS and other agencies working on new initiatives: Expungement clinics, asking for expungement immediately Requesting more “inherent authority” expungements outside the Metro area UD filing not public until disposition Automatic expungement in certain circumstances

Sources Desmond, Matthew, Forced Out, New Yorker (February 8, 2016), available at http://www.newyorker.com/magazine /2016/02/08/forced-out. Dewan, Shaila, Evictions Soar in Hot Market; Renters Suffer, New York Times (August 28, 2014), available at http://www.nytimes.com/2014/08/29/us/evictions-soar-in-hot-market-renters-suffer.html?_r=0 Evictions in Minneapolis, Minneapolis Innovation Team, July 2016 Expunging an Eviction Case, available at https://www.lawhelpmn.org/issues/housing/expungement-of-eviction-records

Criminal Record Expungement Meghan Scully

Criminal Records Records are created at nearly every contact with the justice system Arrest, corrections, courts, probation Many agencies maintain the records Bureau of Criminal Apprehension (BCA), courts, police, sheriff, city attorney, county attorney, diversion programs, probation, corrections, MN Department of Human Services (DHS), MN Department of Health (MDH), FBI Private data companies collect records and sell background checks Adult records available to the public forever even if the case was dismissed or the client was acquitted BCA for 15 years from the date released from probation

What is a Criminal Record Expungement? Expungement is the process of going to court to ask a judge to seal a record and prohibit future disclosure of the record. Expungement does not mean erasing, eliminating, or destroying the record. The record can be reopened or disclosed by court order or under statutory authority Example: applicants for police jobs or subsequent criminal investigation, prosecution or sentencing, immigration

Types of Criminal Record Expungements Return of Arrest Records Inherit Authority Expungements Juvenile Record Expungements Statutory Expungements Return of Arrest Records Minn. Stat § 299C.11 Not really expungement, written request for return or destruction of records Requirements: Arrest-only or dismissal prior to finding of probable cause AND No felony or gross misdemeanor convictions in ten years preceding Juvenile Record Expungements Applies to juvenile delinquency records Minn. Stat. § 260B.198, subd. 6 Statutory Expungements All Government Held Records Minn. Stat. § 609A.02 Inherit Authority Expungements aka “Court Records Only”

Juvenile Record Expungement Minn. Stat. § 260B.198 Subd. 6 The court may expunge all records relating to delinquency at any time if the court determines that expungement of the record would yield a benefit to the subject of the record that outweighs the detriment to the public and public safety in sealing the record and the burden on the court and public agencies or jurisdictions in issuing, enforcing, and monitoring the order.” Age, education, experience, and background, including mental and emotional development, of the subject of the record at the time of commission of the offense Circumstances and nature and severity of the offense, including any aggravating or mitigating factors in the commission of the offense Victim and community impact, including age and vulnerability of the victim Level of participation of the subject of the record in the planning and carrying out of the offense, including familial or peer influence in the commission of the offense Juvenile delinquency and criminal history of the subject of the record Programming history of the subject of the record, including child welfare, school and community-based, and probation interventions, and the subject’s willingness to participate meaningfully in programming, probation, or both Other aggravating or mitigating circumstance bearing on the culpability or potential for rehabilitation of the subject Benefit that expungement would yield to the subject of the record in pursuing education, employment, housing, or other necessities

Statuary Criminal Record Expungement Record created when the individual was an adult Most common type AKA – “Full Expungement All government records held

Waiting Periods for Statutory Expungement Qualify for expungement if petitioner “has not been convicted of a new crime for at least X years since discharge of the sentence for the crime.” “Off paper” Minimum amount of time that the person must be off probation for any offense with no new convictions

Cases Without Waiting Periods Controlled substance offenses prosecuted under Minn. Stat. § 152.18 Deferred prosecution for certain first time drug offenders Cases involving juveniles prosecuted as adults Resolved in Favor Case Criminal proceedings resolved in favor of the petitioner Is there an admission of guilt, finding of guilt, or admission of facts on the record? Inherent authority of court records only, except for limited exceptions (constitutional violation, abuse of discretion in executive branch) May be useful if there is no BCA record (some petty misdemeanors and misdemeanors)

Cases With Waiting Periods Stays of adjudication and diversion cases resulting in dismissal 1 year waiting period, burden shifts to state Cannot be charged with a crime Petty misdemeanor and misdemeanor convictions 2 year waiting period Gross misdemeanor convictions 4 year waiting period Listed felony convictions 5 year waiting period Offense must be on the list Expungement Prohibited Cases that require registration as a predatory offender Resolved in favor? Is there an admission of guilt, finding of guilt, or admission of facts on the record? No = Resolved in Favor No wait period no filing fee burden shifts to state to show that the state’s interest in access to the record outweighs the petitioner’s need for expungement Yes = Not Resolved in Favor Not resolved in favor but no conviction? Stay of Adjudication or diversion 1-year wait period Burden shift to state Filing fees

Felony Convictions Only convictions for felony offenses listed in the statute are eligible for expungement, regardless of how much time has passed. This list does not apply to petty misdemeanor citations, misdemeanor convictions, gross misdemeanor convictions, resolved in favor cases, diversion cases and stays of adjudication

First Things First: Preliminary Considerations Why is the person seeking an expungement? Not post-conviction relief Accept responsibility and move on Is expungement the most effective remedy? Is there an alternative solution? It may take 6 – 9 months to seal the records Filing Fee = $325 - Can be waived Is the person eligible to file? What is the likelihood of success? “Extraordinary remedy” Harm Suffered Real vs. Hypothetical Rehabilitation Efforts

Am I Eligible For Expungement? Convicted of Misdemeanor Theft on 8/15/2014 1 year probation Released from probation on 8/15/2015 No subsequent charges or convictions Assume the individual is coming to you today Yes

Am I Eligible for Expungement? Convicted of Misdemeanor Theft on 8/15/2014 1 year probation Released from probation on 8/15/2015 Convicted of disorderly conduct (a misdemeanor) on 7/15/2017 and ordered to serve 1 year probation No

Am I Eligible for Expungement? Charged with Misdemeanor Theft in 2016 Received Stay of Adjudication 1 year probation Successfully completed probation on 08/15/2017 Charges Dismissed on 08/15/2017 Charged with disorderly conduct on 1/15/2018 No. - outcome of that case is irrelevant….

Am I eligible for Expungement? Convicted of Felony 5th Degree Controlled Substance Crime on 8/15/2010 5 years probation Released from probation on 8/15/2015 No subsequent charges or convictions

Am I eligible for Expungement? Convicted of Felony 5th Degree Controlled Substance Crime on 8/15/2010 5 years probation Released from probation on 8/15/2015 Conviction reduced to a Misdemeanor No subsequent charges or convictions

Am I eligible for Expungement? Charged with Felony 5th Degree Controlled Substance Crime on 8/15/2017 Charges were dismissed on 2/1/2018 No subsequent charges or convictions Yes…if no admission of guilty….need more information

Statutory Expungement Factors Minn. Stat. § 609A.03 Subd. 5 (c) (1-12) Nature and severity of underlying crime Risk, if any, the petitioner poses to individuals or society Length of time since the offense occurred Steps taken toward rehabilitation following the crime Aggravating or mitigating factors relating to the underlying crime, including the petitioner’s level of participation and context and circumstances of the underlying crime Reasons for the expungement, including the petitioner’s attempts to obtain employment, housing, or other necessities

Statutory Expungement Factors Minn. Stat. § 609A.03 Subd. 5 (c) (1-12) Petitioner’s criminal record Petitioner’s record of employment and community involvement Recommendations of interested law enforcement, prosecutorial, and corrections officials Recommendations of victims or whether the victims of the underlying crime were minors The amount, if any, of restitution outstanding, past efforts made by the petitioner toward payment, and the measures in place to help ensure completion of restitution payment of the record if granted Other factors deemed relevant by the court

“I am eligible to file. Great. What’s Next?”

Steps to Filing an Expungement Gather Information Draft Petition Service Filing Hearing Expungement Order

What can you do to help? Be pro active Help document harm Help provide proof of rehabilitation Connect client with resources Go to appointments with client Help Client navigate the system

Where to Get Help Call SMRLS – 651-222-4731 Minnesota Judicial Branch www.mncourts.gov “Help Topics” “Criminal Expungement” www.lawhelpmn.org

QUESTIONS? kristin.holmes@smrls.org or meghan.scully@smrls.org 651-222-5863 Intake: 651-222-4731