A. Civil rights
Person convicted of “treason or felony” may not vote “unless restored to civil rights.” Minn. Const. art. VII, § 1. By statute, civil rights (including right to sit on jury) restored upon discharge from sentence. Minn. Stat. § 609.165, subd. 1 (“When a person has been deprived of civil rights by reason of conviction of a crime and is thereafter discharged, such discharge shall restore the person to all civil rights and to full citizenship, with full right to vote and hold office, the same as if such conviction had not taken place, and the order of discharge shall so provide.”). Two exceptions: firearms rights following a “crime of violence,” § 609.165, subd. 1a; and forfeiture of and disqualification from public office following a conviction of bribery under Minn. Stat. § 609.42, subd. 2. Juvenile adjudications do not give rise to any of the “civil disabilities” that may be imposed as a consequence of an adult conviction, except that a person adjudicated delinquent for a crime of violence as defined in Minn. Stat. § 624.712(5) “is not entitled to ship, transport, possess, or receive a firearm for the remainder of the person’s lifetime.” Minn. Stat. § 260B.245 subd. 1.
Individuals convicted of a “crime of violence,” as defined in Minn. Stat. § 624.712, subd. 5, are barred from possessing “a pistol or semiautomatic military-style assault weapon or, except for juveniles in specified monitored circumstances], any other firearm.” 624.712 subd. 1. Firearms rights are not restored automatically upon completion of sentence along with other civil rights, but may be regained by petitioning a court for restoration. § 609.165, subdsubd. 1a. Court “may grant the relief sought if the person shows good cause to do so and the person has been released from physical confinement.” § 609.165, subdsubd. 1d.1 “Crime of violence” is defined broadly in § 624.712(5) to include drug crimes and a variety of theft and burglary offenses (in addition to violent offenses).2
II. Discretionary Restoration Mechanisms
A. Executive pardon
Chapter 638 of the Minnesota Statutes sets forth the authority and procedures governing the Board of Pardons. https://www.revisor.mn.gov/statutes/?id=638&view=chapter. “The governor, the attorney general and the chief justice of the supreme court constitute a board of pardons. Its powers and duties shall be defined and regulated by law. The governor in conjunction with the board of pardons has power to grant reprieves and pardons after conviction for an offense against the state except in cases of impeachment.” Minn. Const. art. V, § 7; Minn. Stat. § 638.01-.08. “The Board has the power to grant an absolute or conditional pardon,” to people currently serving a sentence. Minn. Stat. § 638.02, subd. 1. The Board also has the power to grant a “pardon extraordinary,” to people who have completed their sentences. § 638.02, subd. 2. The commissioner of corrections, or his or her designee, is the Secretary of the Board and conducts investigations and makes recommendations to the Board. § 638.07. The Board is required to report to legislature by February 15 each year. § 638.075.
For pardon extraordinary, five crime-free years from final discharge for nonviolent crimes, or ten crime-free years for “violent” offenses as broadly defined under Minn. Stat. § 624.712, subd. 5. Stat § 638.02, subd. 2. The Board may set aside this waiting period by “expressly provid[ing] otherwise in writing by unanimous vote.” Id. (But see Minn. R. 6600.0600, providing that application for pardon extraordinary is premature if filed less than 18 months after discharge from sentence.) Federal felony offenders and persons convicted under the law of another state are not eligible for a state pardon. See Minn. Const. art. V, § 7; Minn. Stat. § 638.01. Once a pardon has been denied, reconsideration is possible only with the consent of two members of the Board. Minn. Stat. § 638.06. Individuals re-imprisoned for violation of parole or other supervision are barred from application for 12 months following their return. Minn. R. 6600.1000.
To qualify for a “pardon extraordinary,” applicant must be found to be of “good character and reputation.” Minn. Stat. § 638.02, subd. 2(2).
A “pardon extraordinary” restores all rights not otherwise regained upon completion of sentence, including firearms rights, and in addition has “the effect of setting aside and nullifying the conviction and of purging the person of it, and the person shall never after that be required to disclose the conviction at any time or place other than in a judicial proceeding or as part of the licensing process for peace officers.” Minn. Stat. § 638.02, subd. 2. However, a pardon extraordinary does not seal or expunge the record.3 After a pardon extraordinary is granted, a copy of the pardon is filed with the district court in the county of conviction; and the court is “directed” to issue an order “setting aside” the conviction, and to include a copy of the pardon in the court file. § 638.02, subd. 3.
The 2005 report of the Board describes a “unique case” presented to it that year, in which a foreign national whose conviction for a minor drug offense had been set-aside under Minn. Stat. § 152.18 sought pardon to avoid deportation by federal immigration authorities. The Board was presented with the problem that its constitutional and statutory authority is limited to granting clemency for “convictions.” The Office of the Attorney General issued an opinion that the Board did have the authority under these unique circumstances to grant the applicant a pardon extraordinary to avoid deportation.4
For general pardons and commutations, Secretary of Board screens applications to determine eligibility, and makes recommendations to the Board. Minn. R. 6600.0500. Application forms must be obtained directly from the Secretary’s Office by mail after eligibility requirements have been reviewed. Minn. R. 6600.0300 (“Applications for relief shall be made on forms approved by the board and supplied by the secretary to the applicant.”). Application forms typically are sent only to those deemed eligible by the Secretary. See http://www.doc.state.mn.us/pages/files/8214/1114/1010/BOP_2011_report.pdf (Board of Pardons’ 2011 annual report indicating that “[a]s in the past, when an inquiry for application is made, the staff makes every effort to determine whether the potential applicant meets the eligibility requirements before an application is sent”). In 2010, 178 applications were sent out by the Board, and 32 applications were sent in 2011.5 See http://www.doc.state.mn.us/pages/files/9614/1114/1009/BOP_2010_report.pdf (2010 annual report); http://www.doc.state.mn.us/pages/files/8214/1114/1010/BOP_2011_report.pdf (2011 annual report). Applications the Secretary deems “undeserving” on the merits may also be excluded from consideration, with a report to the Board summarizing the application and basis for the exclusion. Minn. R. 6600.0500.
“The board of pardons shall hold meetings at least twice each year and shall hold a meeting whenever it takes formal action on an application for a pardon or commutation of sentence. All board meetings shall be open to the public. . . .” Minn. Stat. § 638.04. For pardons extraordinary, except for less serious offenders discharged more than five years before, applicant must attend a hearing at which application is considered. Minn. R. 6600.0900. Persons seeking a waiver of the eligibility waiting period must also attend in person. Judge and DA are asked their views, and victims notified. Decision of Board usually announced at the conclusion of the hearing. See generally Minn. R. 6600.0200-.1100, available at https://www.revisor.mn.gov/rules/?id=6600. “Every pardon or commutation of sentence shall be in writing and shall have no force or effect unless granted by a unanimous vote of the board duly convened.” Minn. Stat. § 638.02, subd. 1.
Frequency of grants
The following data is derived from the Annual Reports to the Legislature of the Board of Pardons, available back to 2009 at https://mn.gov/doc/data-publications/legislative-reports/. In the past decade, between 10 and 25 pardons extraordinary have been granted each year, about half of those that are docketed (deemed eligible, according to the statutory criteria). In recent years the percentage of applications granted has increased significantly. In 2015 and 2016, 33 of 83 individuals who applied for a pardon extraordinary were granted relief. According to the 2008 report of the Board, applications for waiver have increased as collateral consequences have become more onerous: “Over the years as the collateral consequences of criminal conviction appear to have increased, there has also been an increase in the number of applicants seeking waiver of the waiting period, which the statute permits upon the unanimous written consent of the Board.”
Applications Sent (all forms relief)
Applications for Relief
Pardon Extraordinary (considered/granted)
Pardon Extraordinary + Waiver of Waiting Period
Leave to Reapply
Randolph Hartnett, Secretary of the Board
B. Judicial sealing or expungement
Under legislation signed into law in April 2014, the courts are now authorized to expunge judicial and executive branch records in a broad range of criminal matters: juvenile delinquency adjudications, cases resolved in an individual’s favor, cases resulting in diversion or a stay of adjudication after a one-year waiting period, and misdemeanor and minor non-violent felony convictions after waiting periods ranging from two to five years after completion of sentence. In a case involving a conviction, a person must be able to establish that the need to expunge the record outweighs any risk to public safety. The law protects employers from liability where a record has been expunged, and requires background screening companies to delete expunged records. The law is effective January 1, 2015, except for domestic violence convictions which are expungeable effective July 1, 2015. For a survey of the provisions of this comprehensive new law, see Emily Baxter, Minnesota’s sweeping new expungement law takes effect, http://ccresourcecenter.org/2015/01/01/minnesotas-sweeping-new-expungement-law-takes-effect/.
Minnesota has two types of expungement, common law and statutory.
Effective January 1, 2015, Minnesota law specifically authorizes its courts to expunge (or seal, a term used interchangeably) court and executive branch records where all pending actions or proceedings are resolved in favor of the petitioner, and in cases involving misdemeanor convictions and a long list of non-violent felonies. See Minn. Stat. § 609A.02, subd. 3. For a more detailed overview of the statutory expungement scheme, see Emily Baxter, Minnesota’s sweeping new expungement law takes effect, Collateral Consequences Resource Center, http://ccresourcecenter.org/2015/01/01/minnesotas-sweeping-new-expungement-law-takes-effect (January 1, 2015).
Eligibility: Those convicted of or who received a stayed sentence for a misdemeanor must wait two years after completion of sentence; those convicted of a gross misdemeanor must wait four years; and those convicted of 50 eligible felonies listed in subd. 3(b) must wait five years. The records of a conviction for which registration is required may not be expunged. § 609A.02 subd. 4. Minn. Stat. §§ 609A.01, 609A.02, subds. 1, 3. Note that a felony-to-misdemeanor reduction following deferred sentencing does not reduce the offense for purposes of expungement eligibility. See “Deferred sentencing,” infra.
Non-conviction records: Sealing may also be sought under § 609A.02 where all pending actions or proceedings were “resolved in favor of the petitioner.” § 609A.02, subd. 3(a)(1). Individuals who have completed a deferred adjudication or other diversion program may have the related arrest, indictment, trial, or other records sealed after remaining crime-free for a one-year waiting period. § 609A.02, subd. 3(a)(2). Juveniles prosecuted as adults may have their records sealed under this authority upon discharge. § 609A.02, subd. 2. Sealing under § 609A.02 may not be sought where destruction of the records available under Minn. Stat. § 299C.105 (see below).
Procedures and Standards: Procedures for filing a petition for expungement are set forth in Minn. Stat. § 609A.03, subd. 5(a). (Under a new provision effective in January 2015, no petition is necessary with the agreement of the prosecutor. See § 609A.025.) In all cases involving conviction records, a balancing test applies. Expungement of conviction records is
an extraordinary remedy to be granted only upon clear and convincing evidence that it would yield a benefit to the petitioner commensurate with the disadvantages to the public and public safety of: (1) sealing the record; and (2) burdening the court and public authorities to issue, enforce, and monitor an expungement order.
§ 609A.03, subd. 5(a). A balancing test also applies to expungement of non-conviction records, but there is a presumption in favor of relief. See discussion below.
Common law expungement
For convictions that do not fall within the list of statutorily eligible offenses, common law expungement may still be available, though the procedures set forth in § 609A.03 apply. Minnesota courts have inherent authority to expunge records generated by the judicial branch in two situations: 1) when a convicted offender’s constitutional rights may be seriously infringed by not expunging the record; and 2) even if no constitutional infringement, when expungement will yield a benefit to the offender commensurate with the disadvantages to the public from the elimination of the record and the burden on the court in issuing, enforcing, and monitoring an expungement order. See State v. S.L.H., 755 N.W.2d 271, 274 (Minn. 2008); State v. Ambaye, 616 N.W.2d 256, 258 (Minn. 2000); see generally Lindsay W. Davis, An Amicus Perspective on Recent Minnesota Criminal Expungement, 2 Wm. Mitchell J. L. & Prac. 4 (2009); Jon Geffen & Stephanie Letze, Chained to the Past: An Overview of Criminal Expungement Law in Minnesota – State v. Schultz, 31 Wm. Mitchell L. Rev. 1331 (2005).
It is not clear to what extent the standards developed and applied in common law expungement cases will be supplanted by the new statutory factors in § 609A.03. See Ambaye, 616 N.W.2d at 258; see also State v. H.A., 716 N.W.2d 360, 364 (Minn. Ct. App. 2006). The seriousness of the offense has been regarded as an important consideration in determining whether records should be expunged. Compare Ambaye, 616 N.W.2d at 261 (agreeing with district court determination of “compelling interest” in maintaining record of violence, in part due to underlying charge of first degree murder) with State v. Schultz, 676 N.W.2d 337, 341 (Minn. Ct. App. 2004) (listing mitigating circumstances following plea to charge of felony assault supporting trial court exercise of discretion to expunge).6
The Minnesota Supreme Court held in May 2013 that courts’ inherent authority to expunge records created by the judicial branch does not extend to records maintained by the executive branch. State v. M.D.T., — N.W.2d —-, 2013 WL 2220826 (Minn. 2013) at *14 (“expungement of M.D.T.’s records held in the executive branch is not necessary to the performance of a unique judicial function”). The court reasoned that because the Minnesota Government Data Practices Act “establishes a presumption that government data are public” for 15 years, see Minn. Stat. § 13.87, subd. 1(b) (see above), “[r]ecognition of inherent judicial authority to expunge M.D.T.’s criminal records held in the executive branch would effectively override the legislative policy judgments expressed in both of these statutes.” 2013 WL 2220826 * 12.
Effect of expungement
Minn. Stat. § 609A.01: “The remedy available is limited to a court order sealing the records and prohibiting the disclosure of their existence or their opening except under court order or statutory authority. Nothing in this chapter authorizes the destruction of records or their return to the subject of the records.” Expungement seals the record, which remains available for law enforcement purposes, for purposes of evaluating a candidate for a law enforcement position, or for purposes of background checks by the Department of Human Services. See § 609A.03 subd. 7. In addition, “upon request by law enforcement, prosecution, or corrections authorities, an agency or jurisdiction subject to an expungement order shall inform the requester of the existence of a sealed record and of the right to obtain access to it as provided by this paragraph. For purposes of this section, a “‘criminal justice agency’ means courts or a government agency that performs the administration of criminal justice under statutory authority.” Id.
Consideration in employment and licensing: Records of arrest not leading to conviction, convictions that have been expunged, or misdemeanors for which a prison sentence could not be imposed, may not be considered in connection with public employment or licensing decision. Minn. Stat. § 364.04.
Negligent hiring standard: “Information relating to a criminal history record of an employee, former employee, or tenant that has been expunged before the occurrence of the act giving rise to the civil action may not be introduced as evidence in a civil action against a private employer or landlord or its employees or agents that is based on the conduct of the employee, former employee, or tenant.” Minn. Stat. § 609A.03, subd. 5(e).
Background screening companies: The new bill closes the gap on private data mining records: if a business screening service knows that a criminal record has been sealed, expunged, or is the subject of a pardon, the screening service shall promptly delete the record. Minn. Stat. 332.70 subd 3a.7
Expungement has been a frequently sought remedy in Minnesota. According to press accounts prior to enactment of the new law, more than 100 applications for expungement are filed annually in Hennepin County alone. See Nick Coleman, This Diva Changed her Tune and her Life, Minneapolis Star Tribune, Sept. 18, 2005, at 1B.
Unless expunged, juvenile records are retained and made available to certain government agencies, schools, and victims only until the person reaches age 28, with certain exceptions. If the person commits a felony as an adult, or the court convicts a child as an “extended jurisdiction juvenile,” the court “shall retain the juvenile records for as long as the records would have been retained if the offender had been an adult at the time of the juvenile offense.” See Minn. Stat. § 260B.171, subd. 1. Juvenile records may be used to enhance subsequent adult criminal charges and sentences; disqualify adults from working at jobs or volunteer opportunities involving vulnerable adults, patients, or children; restrict access to firearms; and prevent access to public housing.
Under Minn. Stat. § 260B.198, subd. 6, as amended in April 2014 and effective January 1, 2015, the district court is authorized to expunge from executive branch and court files all records relating to a delinquency adjudication, after determining 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.” In making this determination the court must consider a variety of factors set forth in subd. 6(b), including the age, education, experience, and background, including mental and emotional development, of the subject of the record at the time of commission of the offense; the nature and severity of the offense, including any aggravating or mitigating factors; victim and community impact; and the overall background and history of the subject of the record. This legislation effectively over-rules the holding of the Minnesota Supreme Court in In re Welfare of J.J. P., — N.W.2d —-, 2013 WL 2220283 (Minn. 2013).
A new report from the Center for Crime and Justice outlines how juvenile records are created, maintained, and accessed; it describes when juvenile records are public and when they are private; and it both identifies and defines the many collateral consequences – legal disabilities and practice barriers – that an individual with a juvenile record may face as they grow into adulthood. These collateral consequences often severely limit a youth’s ability to access employment, higher education, and housing, sometimes long after an individual’s time in juvenile court is complete. See “Juvenile Records in Minnesota,” http://www.crimeandjustice.org/pdffiles/Juvenile%20Records%20in%20Minnesota.pdf.
Effect of a pardon
A pardon extraordinary “nullifies” and “sets aside” the conviction, but it does not expunge or seal the record.
A felony conviction will be “deemed to be” a gross misdemeanor or misdemeanor if 1) the sentence imposed was no greater than that authorized for a misdemeanor; or 2) the imposition of the prison sentence is stayed, the defendant is placed on probation, and the defendant is thereafter discharged without a prison sentence. Minn. Stat. § 609.13, subd. 1. The purpose and effect of this statute is to avoid imposition of most legal disabilities that accompany a felony conviction, including those in administrative licensing proceedings. See id., advisory committee cmt., quoted in Matter of Woollett, 540 N.W.2d 829, 831 (Minn. 1995) (“It is believed desirable not to impose the consequences of a felony if the judge decides that the punishment to be imposed will be no more than that provided for misdemeanors or gross misdemeanors”).
However, in recent years courts have chipped away at the effect of the deferred sentencing reduction. The conviction will still be counted as a felony for purposes of prosecution as a felon in possession, and for subsequent sentencing. See Woollett. Also, in Woollett, the Supreme Court of Minnesota held that a stay of sentencing did not convert a felony conviction for third-degree assault into a misdemeanor for purposes of peace officer licensing, because the Board of Peace Officer Standards and Training had specific statutory authority to disqualify an individual based on a felony conviction. The court compared the Minnesota statute with the California statute on which it was modeled (see Cal. Penal § 17(b)(1) and (b)(3), described in the California profile), and found its coverage less comprehensive. See Woollett, 540 N.W.2d at 832, n. 3.
Individuals who have completed a deferred adjudication or other diversion program may have the related arrest, indictment, trial, or other records sealed after remaining crime-free for a one-year waiting period. § 609A.02, subd. 3(a)(2). (See below). In March 2017, the Minnesota Supreme Court held that felony-to-misdemeanor deferred sentencing reduction did not reduce the offense level for the purpose of expungement eligibility under Minn. Stat. § 609A.02. See State v. S.A.M., A15-0950 (Minn. 2017); see also Mike Mosedale, Supreme Court Limits Expungement Eligibility, Minnesota Lawyer, http://minnlawyer.com/2017/03/20/supreme-court-limits-expungement-eligibility (March 20, 2017),
Expungement may be sought for non-conviction records (cases “resolved in favor of the petitioner”) under Minn. Stat. § 609A.02, subd. 3(a)(1), and for deferred sentencing/adjudication cases under subd. 3(a)(2). (Expungement authority under this statute discussed above as applied to conviction records.) Sealing under § 609A.02 may not be sought where relief available under Minn. Stat. § 299C.105, which provides for mandatory destruction of arrest record and certain identifying information by the Minnesota Bureau of Criminal Apprehension (BCA) and other state agencies (police departments, county attorneys) in cases where no charges filed or all changes dismissed prior to a determination of probable cause. Section 299C.105 applies only if the individual has not been convicted of a felony or gross misdemeanor for the 10 years prior.
A balancing test applies to consideration of sealing as authorized under § 609A.02(a)(1) and (a)(2), but unlike the test that applies to conviction records, there is a presumption in favor of sealing. See § 609A.03, subd. 5(b): “the court shall grant the petition to seal the record 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.” In applying the balancing test, the court is directed to consider a number of factors, including the nature and severity of the underlying crime, the risk the petitioner poses to individuals or society, the length of time since the crime occurred, the steps taken by the petitioner toward rehabilitation, aggravating or mitigating factors relating to the underlying crime, the reasons expungement is sought, the petitioner’s overall criminal record, official recommendations and the recommendations of victims, and payment of restitution. § 609A.03, Subd. 5(c).
See also Minn. Stat. § 152.18 (deferred prosecution and expungement for minor drug offenses); § 609A.03, subd. 6 (“If the court orders the sealing of the record of proceedings under [Minn. Stat. § 152.18], the effect of the order shall be to restore the person, in the contemplation of the law, to the status the person occupied before the arrest, indictment, or information.”).
Minn. Stat. § 299C.11. The Minnesota Bureau of Criminal Apprehension (BCA) and other state agencies (police departments, county attorneys) must destroy an individual’s arrest record and certain identifying information upon request if the individual has not been convicted of a felony or gross misdemeanor within 10 years before the determination of all pending criminal actions in favor of the arrested person; and either no charges were filed or all changes were dismissed prior to a determination of probable cause. See State v. Bragg, 577 N.W.2d 516 (Minn. Ct. App. 1998). The balancing test under Minn. Stat. § 609A.03, subd. 5 applies even to sealing of nonconviction records. See Bragg, supra, 577 N.W. 2d at 521 (noting that petitioner in that case could have proceeded under § 299C.11 but chose instead to proceed under § 609A.03). See also Minn. Stat. § 152.18 (deferred prosecution and expungement for minor drug offenses); § 609A.03, subd. 6 (“If the court orders the sealing of the record of proceedings under [Minn. Stat. § 152.18], the effect of the order shall be to restore the person, in the contemplation of the law, to the status the person occupied before the arrest, indictment, or information.”).
Helpful information about how to apply for expungement is available on the Minnesota courts website at http://www.mncourts.gov/selfhelp/?page=276. Forms are available at http://www.mncourts.gov/selfhelp/?page=332. See also Geffen & Letze, supra.
Conviction information maintained by the Bureau of Criminal Apprehension will not be publicly disseminated 15 years after discharge of sentence, Minn. Stat. § 13.87, subd. 1(b), except that information “created or collected by law enforcement agencies which document any actions taken by them to cite, arrest, incarcerate or otherwise substantially deprive an adult individual of liberty shall be public at all times in the originating agency.” § 13.82, subd. 2.
A person convicted of a crime of violence and thus deprived of firearms rights under Minn. Stat. § 609.165, subd. 1a, may petition a court for restoration, and “the court may grant the relief sought if the person shows good cause to do so and the person has been released from physical confinement.” § 609.165, subd. 1d.
III. Nondiscrimination in Licensing and Employment:
A. Minnesota Criminal Rehabilitation Act
The Minnesota Criminal Rehabilitation Act (1974), Minn. Stat § 364.01 et seq., prohibits discrimination in public employment and licensing:
The legislature declares that it is the policy of the state of Minnesota to encourage and contribute to the rehabilitation of criminal offenders and to assist them in the resumption of the responsibilities of citizenship. The opportunity to secure employment or to pursue, practice, or engage in a meaningful and profitable trade, occupation, vocation, profession or business is essential to rehabilitation and the resumption of the responsibilities of citizenship.
Public employers and licensing agencies may not disqualify a person “solely or in part” based on criminal conviction unless 1) there is a “direct relationship” between occupation or license and conviction history, measured by the purposes of the occupation’s regulation and the relationship of the crime to the individual’s fitness to perform the duties of the position; and 2) the individual has not shown “sufficient rehabilitation and present fitness to perform” the duties of the public employment or licensed occupation. § 364.03, subd. 1.
Direct relationship test
In determining if a conviction directly relates to the position of public employment sought or the occupation for which the license is sought, the hiring or licensing authority shall consider: (a) the nature and seriousness of the crime or crimes for which the individual was convicted; (b) the relationship of the crime or crimes to the purposes of regulating the position of public employment sought or the occupation for which the license is sought; (c) the relationship of the crime or crimes to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the position of employment or occupation. Minn. Stat § 364.03, subd. 2.
Judicial Interpretation of Direct Relationship Test: The Minnesota courts have interpreted the direct relationship test broadly. See, e.g., Peterson v. Minneapolis City Council, 274 N.W.2d 918 (Minn. 1979) (conviction for attempted theft by trick directly related to the operation of a massage parlor); In re Shelton, 408 N.W.2d 594 (Minn. Ct. App. 1987) (embezzlement directly related to fitness to teach; teacher with 20 years of service terminated in spite of efforts to make restitution).
Even where a crime is found to be directly related to the public employment or license sought, person shall not be disqualified if the person can show “competent evidence of sufficient rehabilitation and present fitness to perform the duties of the public employment sought or the occupation for which the license is sought.” § 364.03, subd. 3. Rehabilitation may be established by a record of law-abiding conduct for one year after release from confinement, and compliance with all terms of probation or parole. Licensing or hiring authority shall also consider evidence regarding nature and seriousness of crime, mitigating circumstances, age at time of conviction, time elapsed since conviction, and other evidence of rehabilitation such as letters of reference. Id. A public employee may demonstrate sufficient rehabilitation if one year has elapsed since release from incarceration without subsequent conviction of another crime. In re Shelton, 408 N.W.2d 594 (Minn. Ct. App. 1987).
Various bills have from time to time been introduced into the Minnesota legislature that would add to or clarify the test of rehabilitation. Readers are encouraged to check recent enactments for the most up-to-date information, or to consult with Emily Baxter, Council on Crime and Justice, firstname.lastname@example.org.
Certain records may not be considered
Records of arrest not leading to conviction, convictions that have been expunged, or misdemeanors for which a prison sentence could not be imposed, may not be considered in connection with public employment or licensing decision. Minn. Stat. § 364.04.
Notification of reasons for denial
“If a hiring or licensing authority denies an individual a position of public employment or disqualifies the individual from pursuing, practicing, or engaging in any occupation for which a license is required, solely or in part because of the individual’s prior conviction of a crime, the hiring or licensing authority shall notify the individual in writing of the following: (1) the grounds and reasons for the denial or disqualification; (2) the applicable complaint and grievance procedure; (3) the earliest date the person may reapply for a position of public employment or a license; and (4) that all competent evidence of rehabilitation presented will be considered upon reapplication.” Minn. Stat. § 364.05.
Enforcement through administrative procedure act
Minn. Stat. § 364.06. See Commers v. Spartz, 294 N.W.2d 321, 322 (Minn. 1980) (county school board required to invoke mechanisms of the Administrative Procedure Act upon an aggrieved party’s assertion of alleged violation of Minnesota Criminal Rehabilitation Act). Conviction may be considered as an element in good character inquiry. Minn. Stat. § 364.07. Law enforcement and fire protection agencies are specifically excluded from a requirement of compliance with this statute. Minn. Stat. § 364.09. See Woollett, 540 N.W.2d at 834.
Since 1974, list of excepted professions and employments has been enlarged gradually. Chapter does not apply to the practice of law (Minn. Stat. § 364.08); or to “peace officers” and law enforcement agencies, fire protection agencies, private detectives, certain transportation licenses (including school bus drivers, EMT personnel and taxi drivers if convicted of certain serious offenses and discharged from sentence within the past ten years) (Minn. Stat. § 364.09(a)). Chapter does not apply to juvenile corrections employment if crime involved sexual misconduct. Id. Chapter does not apply to school districts or teaching licenses. Minn. Stat. § 364.09(b). See also § 364.09(c) (“Nothing in this section precludes the Minnesota police and peace officers training board or the state fire marshal from recommending policies set forth in this chapter to the attorney general for adoption in the attorney general’s discretion to apply to law enforcement or fire protection agencies.”) Chapter also does not apply to a license to practice medicine that has been denied or revoked. § 364.09(d).
B. Recent Legislative Measures to Regulate Hiring/Licensing of People with Criminal Records
Employers and licensing agencies are not permitted to consider records that have been expunged, misdemeanors not leading to a prison term, or records of arrest not leading to conviction. Minn. Stat. § 364.04. As of 2014, the number of records eligible for statutory expungement was greatly expanded. See Part IIB, above. Employers and landlords also enjoy a measure of protection for negligence claims based on expunged records. Minn. Stat. § 609A.03, subd. 5(e). Background screening companies are also subject to regulations relating to the reporting of expunged records. Minn. Stat. 332.70 subd 3a. See Part II B, above.
In 2009 the Minnesota legislature enacted a state-wide “ban-the-box” law applicable to public employment prohibiting inquiry into criminal history until the applicant has been selected for an interview, or if no interview offered employment. Minn. Stat. § 364.021. Effective January 1, 2014, the law was extended to cover private employment as well. See 2013 Minn. Sess. Law Serv. Ch. 61 (S.F. 523) (WEST).
The law does not apply to the Department of Corrections or to employers who have a statutory duty to conduct a criminal history background check or otherwise take into consideration a potential employee’s criminal history during the hiring process. It also does not prevent an employer from notifying applicants that “law or the employer’s policy will disqualify an individual with a particular criminal history background from employment in particular positions.” § 364.021. Specific additional exceptions are set forth in § 364.09 (includes fire and emergency personnel, taxicab drivers, school district personnel).
Enforcement of § 364.021 is governed by Minn. Stat. § 364.06. Complaints against public employers are handled under the state administrative procedures act. Complaints against private employers are investigated by the state human rights commissions, and violations may result in fines.
A number of municipal directives have implemented Section 364. In 2006 the City of St. Paul passed an ordinance prohibiting municipal employers from making inquiry about an applicant’s criminal record on an application for employment for positions covered by Section 364. See http://stpaul.granicus.com/MetaViewer.php?view_id=37&clip_id=308&meta_id=14447; see also http://www.nelp.org/page/-/SCLP/2010/BantheBoxCurrent.pdf?nocdn=1. A criminal records check may be made only for certain positions deemed of “sufficient sensitivity and responsibility” to require one, and then only after a conditional offer of employment has been made.8 The City of Minneapolis followed suit. See id.; see also http://www.ci.minneapolis.mn.us/www/groups/public/@council/documents/proceedings/wcms1q-070097.pdf (containing copy of Resolution 2006R-642).9
Minnesota is one of 36 states that will hold employers liable for the negligent hiring of individuals with violent backgrounds. See Ponticas v. K.M.S. Investments, 331 N.W. 2d 907 (Minn. 1983). Many employers assume this liability exposure is greater than it actually is and therefore do not hire individuals who, in fact, could be hired safely. In 2009 the Minnesota Legislature enacted Minn. Stat. § 181.981 to clarify the liability of employers for hiring someone with a criminal record and limit liability regarding certain records. Minn. Stat. § 181.981:
Subdivision 1. Limitation on admissibility of criminal history. Information regarding a criminal history record of an employee or former employee may not be introduced as evidence in a civil action against a private employer or its employees or agents that is based on the conduct of the employee or former employee, if:
(1) the duties of the position of employment did not expose others to a greater degree of risk than that created by the employee or former employee interacting with the public outside of the duties of the position or that might be created by being employed in general;
(2) before the occurrence of the act giving rise to the civil action, a court order sealed any record of the criminal case or the employee or former employee received a pardon; or
(3) the record is of an arrest or charge that did not result in a criminal conviction.
Subdivision 2. Relation to other law. This section does not supersede a statutory requirement to conduct a criminal history background investigation or consider criminal history records in hiring for particular types of employment.
A 2013 amendment that goes into effect January 2014 will also limit liability based on compliance with the ban-the-box provisions in Minn. Stat. § 364.021. See 2013 Minn. Sess. Law Serv. Ch. 61 (S.F. 523) (WEST).
Notice to college students
Minn. Stat. § 135A.157 requires all public and private postsecondary educational institutions within the State of Minnesota to give notice of the potential effects of criminal convictions on future employment. By giving future students the notice required by this law, such students will know that their options may be limited in certain fields before they invest time and money in a particular area of study. Ideally, it will also make the general public more aware of some of the onerous and often unreasonable statutory employment restrictions and lead to the change of these policies.
Juvenile adjudications may not “disqualify the child in any future civil service examination, appointment, or application.” Minn. Stat. § 260B.245 subd. 1.
- Until 2003, the right to possess firearms was automatically restored to persons convicted of a crime of violence (with the exception of persons convicted of domestic assault involving the use of a firearm) 10 years after restoration of rights or expiration of sentence, whichever occurs first, provided the person had not been convicted of another crime of violence in that 10 year period. Minn. Stat. § 624.713, subdiv. 1(b) (2002). The 2003 Minnesota Citizen’s Personal Protection Act, 2003 Minn. Sess. Law Serv. Ch. 28 (S.F. 842), modified the ban against possession of firearms to a lifetime ban for all persons discharged from sentence of court supervision on or after August 1, 1993, unless and until rights are restored by a court. See Minn. Stat. § 624.713, subdiv. 1(11).
- Because Minnesota offenders regain all three basic civil rights upon discharge from sentence, their federal firearms rights are restored along with their state firearms rights. See 18 U.S.C. § 921(a)(20) (“Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”).
- In 1992, language in Minn. Stat. § 638.02 that provided for “sealing” of records after pardon was repealed, so that even though the conviction is “nullified” the record is not expunged or sealed. See Minn. Stat. § 638.02 (historical and statutory notes); 1992 Minn. Sess. Law Serv. Ch. 569 (H.F. 2181). Rather, the fact of the pardon is added to the record. Where there is a request from a member of the public for public criminal records, only the fact of the pardon is disseminated. When there is a background check for private data (authorized by the subject), both the conviction and the pardon are disseminated. See also State v. Stern, 297 N.W. 321 (Minn. 1941) (pardon granted defendant for previous conviction in California was not bar to imposition of enhanced punishment under Minnesota’s habitual criminal statute following conviction of crime of performing illegal operation).
- See http://www.doc.state.mn.us/pages/files/5514/1114/1008/BOP_2005_report.pdf.
- In 2011, the Board considered 45 applications for pardons extraordinary and granted 17. 28 applications for pardons extraordinary were denied, two additional applicants withdrew or were deferred prior to consideration, and 11 additional applications were not considered because the Board declined to set aside the waiting period. Nine applications for pardon/commutation were reviewed under Minn. R. 6600.0500, eight of which were deemed ineligible for review. See http://www.doc.state.mn.us/pages/files/8214/1114/1010/BOP_2011_report.pdf.
- In Ambaye, the Minnesota Supreme Court held that the district court did not abuse its discretion by refusing to expunge a violent offense:
[T]he court stated that the benefit respondent stood to gain from expungement, if granted, would override the very purpose of the background check. Employers, sometimes pursuant to law and sometimes voluntarily, have required background checks in order to ‘assess any potential risk involved with hiring certain individuals.’ Further, the district court reasoned that the public had a ‘compelling interest in maintaining [respondent’s] record of violence, particularly because the underlying offense [respondent] was charged with was murder in the first degree.’ Finally, the district court noted that respondent is ‘currently gainfully employed, thus his [criminal record] is not preventing him from obtaining employment.’
Ambaye, 616 N.W.2d at 261. In Schultz, the petitioner granted expungement had been convicted of second degree assault shortly after his 18th birthday, at a time when he was experiencing mental health difficulties that had subsequently been controlled through medication. Shultz, 676 N.W.2d at 340. In M.D.T., the court of appeals granted expungement, noting that “appellant’s offense, aggravated forgery, was a ‘non-violent misdemeanor’ and that ‘the facts surrounding the offense’ also showed that ‘the nature and seriousness’ of the offense were ‘minimal.’” State v. M.D.T., 815 N.W.2d 628, 633 (Minn. App. 2012), rev’d on other grounds by 2013 WL 2220826 (Minn. 2013).
- Subd. 3a.Deletion of expunged records: “If a business screening service knows that a criminal record has been sealed, expunged, or is the subject of a pardon, the screening service shall promptly delete the record.” See also Subd. 4 (“A business screening service that disseminates a criminal record that was collected on or after July 1, 2010, must include the date when the record was collected by the business screening service and a notice that the information may include criminal records that have been expunged, sealed, or otherwise have become inaccessible to the public since that date.”); Subd. 5.Remedies; relationship to FCRA (“A business screening service that violates this section is liable to the individual who is the subject of the record for a penalty of $1,000 or actual damages caused by the violation, whichever is greater, plus costs and disbursements and reasonable attorney fees.”
- The St. Paul resolution provides that “the City will make a good faith determination as to which specific positions of employment are of such sensitivity and responsibility that a background check is warranted. Further, certain positions of employment with the City of Saint Paul are exempted from Chapter 364 including, but not limited to, police and fire, positions working with children, and positions that handle money or sensitive information. If it has been established that a position requires a background check, the City will not conduct that check until after the applicant is determined to be otherwise qualified for that position.” Seehttp://stpaul.granicus.com/MetaViewer.php?view_id=37&clip_id=308&meta_id=14447. Moreover, the City will not conduct, request, or accept any background checks which contain information relating to (i) records of arrests not followed by a valid conviction; (ii) convictions which have been, pursuant to law, annulled or expunged; and (iii) misdemeanor convictions where no jail sentence can be imposed. Id. If the background check uncovers a prior conviction, the employee shall not be disqualified “unless the crime directly relates to the employment sought.” Id. Additionally, if a determination is made that an applicant has been convicted of a crime or crimes directly relating to the position sought, the City will comply with the notification requirements set forth in Minn. Stat. § 364.05. Id.
- The resolution of the Minneapolis City Council, approved on December 22, 2006, requires the City’s Department of Human Resources to periodically review all positions of employment with the City and “make a good faith determination as to which specific positions are of such sensitivity and responsibility that a background check is warranted.” Minneapolis City Counsel, Resolution 2006R-642, available at http://www.ci.minneapolis.mn.us/www/groups/public/@council/documents/proceedings/wcms1q-070097.pdf. Even as to those jobs, the City “will not conduct that check until after the job applicant is determined to be otherwise qualified for that position.” Id. If a determination is made that an applicant has been convicted of a crime or crimes directly relating to the position sought, the City’s Human Resources Department will comply with the notification requirements set forth in Minn. Stat. § 364.05. Id.
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