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

2. 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

3. 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:

4. Eviction Expungements
Kristin Holmes

5. 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

6. 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

7. 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

8. Traditional Expungement by Motion
Three requirements, found in MN Statue
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…)

9. 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?

10. 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 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

11. 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)

12. 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

13. 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

14. 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

15. 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

16. Sources
Desmond, Matthew, Forced Out, New Yorker (February 8, 2016), available at
/2016/02/08/forced-out.
Dewan, Shaila, Evictions Soar in Hot Market; Renters Suffer, New York Times (August 28, 2014), available at
Evictions in Minneapolis, Minneapolis Innovation Team, July 2016
Expunging an Eviction Case, available at

17. Criminal Record Expungement
Meghan Scully

18. 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

19. 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

20. 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”

21. 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

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

23. 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

24. Cases Without Waiting Periods
Controlled substance offenses prosecuted under Minn. Stat. §
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)

25. 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

26. 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

27. 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

28. 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

29. 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

30. 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….

31. 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

32. 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

33. 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

34. 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

35. 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

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

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

38. 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

39. Where to Get Help Call SMRLS – 651-222-4731 Minnesota Judicial Branch
“Help Topics” “Criminal Expungement”

40. QUESTIONS? kristin.holmes@smrls.org or meghan.scully@smrls.org
Intake: