State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0874

State of Minnesota,
Respondent,

vs.

J. S. K.,
Appellant.

Filed March 12, 2018
Affirmed in part, reversed in part, and remanded
Peterson, Judge

Hennepin County District Court
File Nos. 27-CR-14-4811, 27-CR-14-7039,
27-CR-14-9708, 27-CR-14-11574, 27-CR-14-14958

Lori Swanson, Attorney General, Frederic J. Argir, Assistant Attorney General, St. Paul,
Minnesota (for respondents Mi nnesota Department of Huma n Services and Minnesota
Department of Health)

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent State of Minnesota)

Samuel J. Edmunds, Sieben Edmunds PLLC, Mendota Heights, Minnesota (for appellant)

Considered and decided by Reyes, Presid ing Judge; Peterson, Judge; and Bjorkman,
Judge.

2
U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this appeal from a district court or der denying appellant’s petitions to expunge
criminal records in five separa te criminal matters, appellant argues that the district court
(1) incorrectly applied the burd en of proof; (2) abused its discretion in applying the
applicable statutory factors when consider ing the petitions; and (3) erred by denying his
motion to find a provision in the expungement statute unconstitutional. We affirm in part,
reverse in part, and remand.
FACTS
During February 2014, appellant J.S.K. began exhibiting symptoms of mental
illness and was involved in the first of severa l incidents that resulted in five separate
criminal charges against him. On February 21, 2014, appellant was charged with one
felony count of fleeing a peace o fficer in a motor vehicle. On March 16, 2014, appellant
was charged with misdemeanor disorderly conduct. On Ap ril 8, 2014, appellant was
charged with misdemeanor driving while impa ired. On April 25, 2014, appellant was
charged with felony stalking (pattern of st alking conduct). Finally, on May 27, 2014,
appellant was charged with gross-misdemeanor stalking.
In proceedings on the fleeing-a-peace-o fficer charge, the district court ordered a
competency evaluation under Minn. R. Crim. P. 20.01 an d a mental examination under
Minn. R. Crim. P. 20.02 and scheduled a competency hearing to be held on April 15, 2014.
Before that hearing was held, the charge s for misdemeanor diso rderly conduct and
misdemeanor driving while impair ed were filed, and the prosecutor agreed to apply the

3
competency-evaluation report to those misdemeanors. Following the April 15 hearing, the
district court concluded that appellant was in competent to stand tria l. Consequently, the
district court dismissed the misdemeanor diso rderly-conduct and driving-while-impaired
charges and suspended proceedings on th e felony fleeing-a-peace-officer charge. See
Minn. R. Crim. P. 20.01, subd. 6(b) (if cour t finds defendant incompetent, misdemeanor
charges must be dismissed and proceedings on felony charges must be suspended). The
district court also referred appellant for civil commitment proceedings. See Minn. R. Crim.
P. 20.01, subd. 6(b)(1), (2) (if court finds defendant mentally ill or mentally deficient so as
to be incapable of understanding proceedings or participating in defense, court must
commence civil commitment pro ceeding or cause civil commi tment proceedings to be
instituted against defendant).
A second competency hearing was held on April 29, 2014, after appellant was
charged with felony stalking. Following th at hearing, the district court amended its
April 15 order by adding a provision that susp ended criminal proceed ings on the felony
stalking charge “until [appellant] has returned to a competent state of mind.”
Appellant regained competency, and, on September 15, 2014, he waived his right
to a jury trial on the fleeing-a-peace-officer charge and, pursuant to Minn. R. Crim.
P. 26.01, subd. 3, agreed w ith the prosecutor that the dete rmination of his guilt may be
submitted to and tried by the district court based on stipulat ed facts. In an order filed on
October 7, 2014, the district court conclu ded that the state proved beyond a reasonable
doubt that appellant committed the charged offense and that appellant proved that, due to
his mental illness, he was unable to know the nature of the acts he committed, or that they

4
were wrong. Accordingly, the district court found appellant not guilty by reason of mental
illness of fleeing a peace officer.
On March 20, 2015, pursuant to Minn. R. Crim. P. 30.01, the state dismissed the
felony stalking compla int against appellant and stated in writing that it dismissed the
complaint in the interests of justice and because, in the fleeing-a-peace-officer case,
appellant was found not guilty by reason of me ntal illness and appellant was under a stay
of civil commitment as a result of that case. See Minn. R. Crim. P. 30.01 (prosecutor may
dismiss complaint without court’s approval and must state reasons for dismissal in writing
or on the record). The prosecutor in the gro ss-misdemeanor stalking case dismissed that
charge because the events that were the basis for the char ge were part of the pattern of
conduct that was the basis for the felony stalking charge.1
Appellant filed petitions seek ing expungement of the criminal records in each of the
five cases in which he was charged, claiming that the only reason why the offenses occurred
“was because brand new mental health diso rders came on and [he] was untreated at the
beginning,” but now that he is “under appropriate medical care, there is no worry that [he]
will engage in this type of behavior ever again.” Appellant requested a hearing on his
petitions under Minn. Stat. § 609A.03, subd. 4 (2016).
Respondent State of Minnesota opposed ex pungement of records in the fleeing-a-
peace-officer and felony stalking cases. The stat e asserted that a verd ict of not guilty by
reason of mental illness is not a verdict “in favor of” appellant and that appellant’s fleeing-

1 The record does not clearly demonstrate when the misdemeanor stalking charge was
dismissed, but the parties do not dispute that it was dismissed.

5
a-peace-officer offense is excluded from the statutory remedy of expungement. The state
also asserted that, in the felony stalking case, appellant is not entitled to expungement under
the court’s inherent authority. In response, appellant moved for a finding that Minn. Stat.
§ 609A.02, subd. 3(a)(1) (2016), is unconstitutional as applied to him and that he qualifies
for inherent-authority expungement because that relief will remedy a constitutional
violation.
Respondents Minnesota Department of Human Services (MDHS) and Minnesota
Department of Health (MDH) opposed expunge ment of records in the felony and gross-
misdemeanor stalking cases. Respondents asserted that records in those cases are needed
to fulfill their responsibilities under Minnesot a Statutes chapters 245A and 245C to
evaluate risks presented by “ind ividuals who wish to provide care for, or have access to,
the state’s most vulnerable citizens.”
The district court denied appellant’s petitions. This appeal followed.
D E C I S I O N
This court reviews a district court’s exp ungement decision for abuse of discretion.
State v. M.D.T. , 831 N.W.2d 276, 279 (M inn. 2013). “Under an abuse of discretion
standard, we will not overrule the district court unless the court exercised its discretion in
an arbitrary or capricious manner or based its ruling on an erroneous interpretation of the
law.” State v. R.H.B., 821 N.W.2d 817, 822 (M inn. 2012). We review a district court’s
findings of fact supporting expungement for clear error. State v. A.S.E., 835 N.W.2d 513,
517 (Minn. App. 2013). But the “interpreta tion of the expungement statute is a legal

6
question subject to de novo review.” State v. D.R.F. , 878 N.W.2d 33, 35 (Minn. App.
2016) (quotation omitted).
The expungement statute, Minn. Stat. §§ 609A.01 to .04 (2016), provides “grounds
and procedures” for expunging criminal r ecords. Minn. Stat. § 609A.01. The
expungement statute specifies various circumstances under which an expungement petition
may be filed. Among the pe rmitted circumstances, the statute provides that “[a] petition
may be filed under section 609A.03 to seal all records relating to an arrest, indictment or
information, trial, or verdict . . . if . . . all pending actions or proceedings were resolved in
favor of the petitioner.” Minn. Stat. § 609A.02, subd. 3(a)(1).
When a petition is filed under this provisio n, “the court shall grant the petition to
seal the record unle ss the agency or jurisdiction wh ose records would be affected
establishes by clear and convinci ng evidence that the interest s of the public and public
safety outweigh the disadvantages to the petitioner of not sealing the record.” Minn. Stat.
§ 609A.03, subd. 5(b). “In determining whet her a case was resolved in favor of the
petitioner under Minn. Stat. § 609A.02, subd. 3, the existence of an admission or finding
of guilt is the deciding factor.” State v. C.P.H., 707 N.W.2d 699, 704 (Minn. App. 2006).
The expungement statute, howe ver, specifically provides that “a verdict of not guilty by
reason of mental illness is not a resolution in favor of the petitioner.” Minn. Stat.
§ 609A.02, subd. 3(a)(1).
The Minnesota Supreme Court has explai ned that when Minn. Stat. § 609A.02,
subd. 3(a)(1) and (2), are read together with Minn. Stat. § 609A.03, subd. 5(b), they create
a “two-step procedure for statutory expungement.” R.H.B., 821 N.W.2d at 821. Under

7
step one, if all pending criminal actions or proceedings have been resolved “in favor of”
an individual, he may petition the district court to seal the records related to the action or
proceeding, and there is a st atutory presumption that the court will grant the petition. Id.
(quotation omitted).
Once a petitioner meets the legal threshol d set forth in Minn. Stat. § 609A.02,
subd. 3(a)(1), or (2), he is “presu mptively entitled to expungement.” Id. (quotation
omitted). But the statutory presumption is not absolute; rather “it is a rebuttable statutory
presumption that shifts the burden of persuasion to the opposing party.” Id. (quotation
omitted). Under the second step, the agency or jurisdiction holding the record may prevent
expungement if it satisfies its burden of persuasion set forth in section 609A.03,
subdivision 5(b). Id.
In addition to statutory expungement authority under chapter 609A,
[t]he district court also has inherent authority to expunge court
records: (1) when the petitioner’s constitutional rights may be
seriously infringed by retention of petitioner’s records; or (2) if
constitutional rights are not invo lved, when the court finds
expungement will yield a benefit to the petitioner
commensurate with the disadvant ages to the public from the
elimination of the record and the burden on the court in issuing,
enforcing, and monitoring an expungement order.

State v. L.W.J., 717 N.W.2d 451, 456 (Minn. App. 2006) (quotation omitted).
The supreme court has explained that “the authority the judiciary has to control its
own records does not give the judiciary inhe rent authority to r each into the executive
branch to control what the ex ecutive branch does with records held in that branch, even
when those records were created in the judiciary.” M.D.T., 831 N.W.2d at 282. In M.D.T.,

8
the supreme court held that, because expungement of the petitioner’s criminal records held
in the executive branch was not necessary to the performance of a unique judicial function,
the district court did not have authority to ex punge criminal records held in the executive
branch. Id. at 284.
Four dismissed cases
Appellant argues that, with respect to the f our cases that were dismissed, the district
court applied the wrong statutory standard when it “did not shift the burden of proof to the
government to offer clear and convincing ev idence, as required under § 609A.03, subd.
5(b).” We agree.
The district court concluded in paragraph 51 of its order that it would not seal the
executive-branch records in the four cases that were dismissed because MDHS and MDH
use those records to conduct background st udies, and conducting those studies is not a
unique judicial function. In reaching this conclusion, the district court applied principles
related to the court’s inhere nt expungement authority, instead of applying only the
requirements for statutory expungement under Mi nn. Stat. § 609A.03, subd. 5(b). Under
the expungement statute, executive-bran ch records may be sealed even if the records are
not necessary to the performance of a unique judicial function.
Because there was no admission or finding of guilt in the cases that were dismissed,
appellant is presumptively entitled to e xpungement under Minn. Stat. § 609A.03,
subd. 5(b), and the district court should ha ve determined whether respondents met their
burden of establishing by clear and convincing evidence that the interests of the public and
public safety in sealing the records outweigh the disadvantages to appellant of not sealing

9
the records. We, therefore, reverse the deni al of appellant’s petition with respect to the
four cases that were dismissed and remand to permit the district court to apply to those
cases the requirements for statutory expungement under Minn. Stat. § 609A.03, subd. 5(b).
Based on its conclusion that appellant was not entitled to statutory expungement of
records held in the ex ecutive branch, the district court further concluded that, because
records of appellant’s offenses will remain available in the executive branch, there was not
“clear and convincing evidence that [appellant] will gain a benefit from only a partial
expungement of judicial records (via the court’s inherent authority) commensurate with the
burden on the court in issuing and enforcing an expungement order.” This conclusion with
respect to expungement under the court’s inherent authority is based, in part, on the district
court’s decision regarding statutory expungement . Therefore, because we have reversed
the district court’s statutory-expungement de cision, the district court must reconsider
whether appellant is entitled to expungement unde r the court’s inherent authority after it
has applied the requirements for statutory expungement.
Fleeing-a-peace-officer case
Unlike the four cases that were dismisse d, in the fleeing-a-peace-officer case,
appellant was found not guilty by reason of mental illness; the case was not dismissed. In
the district court, appellant recognized that because Minn. Stat. § 609A.02, subd. 3(a)(1),
specifically provides that “a verdict of not guilty by reason of mental illness is not a
resolution in favor of the petitioner,” his pe tition did not meet the requirement that “all
pending actions or proceedings were resolved in favor of the petitioner.” Minn. Stat.
§ 609A.02, subd. 3(a)(1).

10
Nevertheless, in an attempt to file his petition to expunge the records in the fleeing-
a-peace-officer case under Minn. Stat. § 609A. 02, subd. 3(a)(1), appe llant filed a motion
in the district court asking the court to find that Minn. Stat. § 609A .02, subd. 3(a)(1), is
unconstitutional as applied to him because it violates his rights to due process and to equal
protection of the law. Appellant did not file a memorandum of law supporting his motion,
and during the hearing on his pe tition, he argued only that the statute violated his right to
equal protection. On appeal, appellant argues that the district court erred by denying his
motion to find the statute unconstitutional and ag ain argues only that the statute violates
his right to equal protection.
In its order denying appellant’s petition, the district court did not address appellant’s
equal-protection claim. But during the hearing in the district court, appellant’s counsel did
not cite any authority that supported the claim. Counsel argued only that, if the district
court did not grant an expungement of execu tive-branch records, appellant “would be
treated differently than other people with acquittals that would get their executive branch
records expunged, and that is a constitutional infringement.” When the district court asked
counsel whether he had any authority that su pported his argument, counsel responded, “I
do not, Your Honor. I looked. I told my client when we got here today that I think we’re
probably on uncharted territory. I don’t know that anybo dy has raised this issue in this
context before.”
The district court’s failure to address an issue raised in only a conclusory fashion
and without supporting affidavits, or testimony, or argument is not error. Cf. Balder v.
Haley, 399 N.W.2d 77, 80 (Minn. 1987) (noting argument is waived if not briefed). We

11
will not address an issue not properly ra ised before the district court. See Thiele v. Stich,
425 N.W.2d 580, 582 (Minn. 1988) (stating appellate courts generally address only issues
presented to and considered by the district court).
We, therefore, conclude that, because th e fleeing-a-peace-officer case was not
resolved in appellant’s favor, appellant’s petition did not meet the requirements for filing
under Minn. Stat. § 609A.02, subd. 3(a)(1), and the district court did not abuse its discretion
when it denied appellant’s petition for statutory expungement of records in that case. We
also note, however, that, because the district court’s decision with respect to expungement
under the court’s inherent authority was base d, in part, on its decision with respect to
statutory expungement in the four dismissed cases, the district court must reconsider
whether appellant is entitled to expungement under the court’s inherent authority in the
fleeing case after it has applied the requirement s for statutory expungement in the four
dismissed cases.
Because the district court must recons ider whether appellant is entitled to
expungement, we do not consider appellant’s argument that the district court abused its
discretion in applying the applicable statutory factors when it considered his petitions.
Affirmed in part, reversed in part, and remanded.