State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-2037

State of Minnesota,
Respondent,

vs.

G. R. K.,
Appellant.

Filed August 31, 2020
Reversed
Florey, Judge

Washington County District Court
File Nos. 82-CR-18-41; 82-CV-18-4

Keith Ellison, Attorney General, Zurizadai Balmakund, Assistant Attorney General,
St. Paul, Minnesota (for respondent)

Jon Geffen, The Reentry Clinic, St. Paul, Minnesota (for appellant)

Considered and decided by Florey, Presiding Judge; Reilly, Judge; and Smith, Tracy
M., Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant seeks review of the district court’s order denying her petition to expunge
elements of her criminal record with respect to two record -holding agencies, arguing that
the district court did not conform to procedural requirements of the controlling statute. We
reverse.

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FACTS
In 2018, appellant G.R.K. was charged with three crimes in two separate cases. In
January, G.R.K. was charged with domestic assault by strangulation; and in July, felony
terroristic threats and misdemeanor DANCO violation. G.R.K. never pleaded to any of the
charges. G.R.K.’s domestic partner—the alleged victim in both cases—avoided service of
subpoenas in both cases, so both cases were continued for dismissa l and later dismissed.
G.R.K. subsequently petitioned the district court for expungement of these charges.
G.R.K. argued in her petition that both cases were resolved in her favor under Minn.
Stat. § 609A.02, subd. 3(a)(1) (2018), that none of the charge s were disqualified from
expungement, and that she was therefore presumptively entitled to expungement. She
argued further that the charges interfered with her ability to obtain housing, as at least one
potential landlord denied her application as a result of these non-conviction charges.
Several entities opposed the expungement, including the Minnesota Department of
Human Services (DHS), and the Minnesota Department of Health (MDH) —the
respondents herein. 1 Respondents submitted a memorandum of law to sup port their
opposition to the expungement, but they did not appear at the hearing on the petition. In
their memorandum, respondents argued ultimately that, because G.R.K. is a licensed nurse,
she might in the future apply for a job in which she would have care of or access to children

1 While the district court denied G.R.K.’s expungement petition with respect to the records
held by respondents, it granted that same petition with respect to a number of other entities,
including the W ashington County District Court, the Minnesota Bureau of Criminal
Apprehension, the Minnesota Department of C orrections, three law -enforcement
departments, and three prosecutorial offices.

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and/or vulnerable adults. Because respondents screen and qualify applicants for certain
positions, and because the conduct alleged by the records associated with the dismissed
charges against G.R.K. would potentially be disqu alifying for employment in such
positions, respondents argue, they have a compelling interest in maintaining access to those
records. G.R.K. is currently on permanent disability and not working any job. The district
court, noting in the memorandum accomp anying its order that respondents “have a
compelling interest in reviewing and approving any such application,” exempted
respondents from the expungement order. G.R.K. appealed.
D E C I S I O N
Relevant to this appeal, expungement of criminal records is provided for by statute.
See Minn. Stat. § 609A.03 (2018). The statute provides different schemes of analysis for
different situations, and the parties do not dispute that the applicable provision here is
subdivision 5(b)—specifically in its reference to section 609A.02, subdivision 3(a)(1) —
which provides for situations in which the petitioner received a “favorable result” on the
matters for which expungement is sought. Here, all parties agree that the dismissal of the
charges at issue in the petition constitute a favorable result under the statute. We review
“favorable result” expungement decisions under an abuse -of-discretion standard. State v.
R.H.B., 821 N.W.2d 817, 822 (Minn. 2012).
Section 609A.03, subdivision 5(b ), creates a burden -shifting framework, the
starting-point of which is the presumption that the petitioner is entitled to expungement.
R.H.B., 821 N.W.2d at 821. “But the statutory presumption created under step one is not
absolute. Rather, it is a rebu ttable statutory presumption that shifts the burden of

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persuasion to the opposing party.” Id. (quotations omitted). If an agency or other record-
holding entity objects to the expungement, it may “prevent expungement if [it] . . .
‘establishes by clear an d convincing evidence’ that the public’s interest in keeping the
records unsealed ‘outweigh [s] the disadvantages to the petitioner of not sealing the
records.’” Id. (quoting Minn. Stat. § 609A.03, subd. 5(b)).
The statute further guides the analysis by enumerating twelve factors for the district
court to consider when deciding whether the record -holding agency has met its burden of
demonstrating with clear and convincing evidence that the public’s interest in keeping the
records available outweighs the dis advantages of the same to the petitioner. The
enumerated factors are:
(1) the nature and severity of the underlying crime, the
record of which would be sealed;
(2) the risk, if any, the petitioner poses to individuals or
society;
(3) the length of time since the crime occurred;
(4) the steps taken by the petitioner toward rehabilitation
following the crime;
(5) aggravating or mitigating factors relating to the
underlying crime, including the petitioner ’s level of
participation and context and circum stances of the
underlying crime;
(6) the reasons for the expungement, including the
petitioner’s attempts to obtain employment, housing, or
other necessities;
(7) the petitioner’s criminal record;
(8) the petitioner’s record of employment and community
involvement;
(9) the recommendations of interested law enforcement,
prosecutorial, and corrections officials;
(10) the recommendations of victims or whether victims of
the underlying crime were minors;
(11) the amount, if any, of restitutio n outstanding, past
efforts made by the petitioner toward payment, and the

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measures in place to help ensure completion of
restitution payment after expungement of the record if
granted; and
(12) other factors deemed relevant by the court.

Minn. Stat. § 609A.03, subd. 5(c).
Here, the district court noted each of these factors and provided its consideration of
each in the memorandum accompanying its order. Under the heading for the second factor,
after observing that it calls for consideration of the ri sk that the petitioner poses to
individuals or society, the district court found that respondents failed to show that G.R.K.
posed such a risk. The district court ends its consideration of this factor by concluding that
respondents have a compelling interest in maintaining access to the records and “have met
their burden under Minn. Stat. 609A.03, subd. 5(b).” On appeal, G.R.K. raises a number
of specific contentions with respect to the district court’s findings, analysis, and
conclusions—the central thrust being that the district court’s order does not conform to the
statutory framework. We agree.
After finding that G.R.K. did not pose a threat, but before concluding that
respondents met their burden, the district court’s analysis of the second factor progress ed
through the following findings and comments: (1) that the threat G.R.K. poses to her
domestic partner is mitigated by other factors; (2) that a purpose of the respondent
departments involves screening applicants for certain positions involving vulnerabl e
people; (3) that G.R.K. is licensed as a nurse but does not currently work due to a disability
and that it is unknown if she ever will work; (4) that respondents would have a “compelling
interest in reviewing and approving” an application from G.R.K. if she did submit one;

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(5) that G.R.K. would have alternate avenues of potential recourse if respondents denied
her hypothetical application; (6) that an unrelated statute might authorize DHS to obtain
certain records; (7) that it finds that respondents shoul d maintain their own records “if”
G.R.K. were to submit an application to a relevant position; and (8) that respondents might
have alternative avenues of access to G.R.K.’s criminal record even if it were to be sealed.
As G.R.K. points out, these matters provide little, if any, support or explanation for the
court’s conclusion that respondents have met their ultimate burden—showing by clear and
convincing evidence that G.R.K.’s interests are outweighed by the public’s. Minn. Stat.
§ 609A.03, subd. 5(b).
First, the existence of alternative means by which the parties here might be able to
attain what they seek lacks any relevance to the balance of the interests between G.R.K.
and the public. Even if such considerations were relevant, they are unhelpful to the analysis
given that the alternative means of recourse for respondents identified by the district court
would be present in any case pursuant to this statutory framework and therefore do little to
distinguish this case from any other. Further, even if we were to assume that the district
court had sufficient reason to find that respondents have a compelling interest in preserving
the records, that finding alone does not answer the question posed to the court—whether
the public’s interests, compelling as they might be, outweigh G.R.K.’s —and answering
that question would be the only way to conclude that the respondents have “carried their
burden.” R.H.B., 821 N.W.2d at 823. Ultimately, we conclude that the district court’s
findings on the second factor do not sufficiently support its conclusion that respondents

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have met their burden; but this fact alone does not necessarily mean that the district court
abused its discretion.
We continue our review by considering the court’s handling of the remaining
factors. A finding that a petitioner does not pose a risk to individuals or society is not
necessarily outcome-determinative. The risk factor is only one of eleven relevant factors
specifically identified by the statute, and the district court may also consid er any other
relevant factors—any one or more of which could theoretically subordinate a petitioner’s
interests to those of the public. Here, however, the district court provided insufficient
findings and legal analysis to permit effective appellate revie w. Moylan v. Moylan , 384
N.W.2d 859, 865 (Minn. 1986) (stating that even where the record might support a district
court’s decision, “it is nevertheless inadequate if that record fails to reveal that the trial
court actually considered the appropriate factors”).
In its consideration of the remaining factors, the district court only listed several
uncontested facts in the record that might be relevant. It did not explain whether or to what
extent those facts are in corporated into the statutorily required balancing of the interests.
While it is possible that the district court silently factored any number of considerations
into its undisclosed analysis of the extent to which respondents fulfilled their burden, we
cannot know whether it did and therefore cannot review that analysis. Therefore, because
the district court’s order contained insufficient findings and indicates a failure to abide by
the statutory framework, we conclude that the district court abused its discretion. State ex
rel. Swanson v. 3M Co., 845 N.W.2d 808, 817 (Minn. 2014).

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Finally, we no te that our review of the record reveals that respondents could not
have met their burden under the proper analysis. They exerted minimal effort in opposing
G.R.K.’s petition, submitting a brief that contained “mere generalities” and failing to
appear at the hearing. In R.H.B., the supreme court concluded that the “the State failed to
establish by clear and convincing evidence” that the public’s intere sts outweighed the
petitioner’s because the opposing departments submitted only three affidavits from their
officials which briefly stated how maintenance of criminal records generally can be
advantageous to their goals. Id. at 822. The court characterized the state’s evidence as
“little mor e than generalities,” stating that “[t]hese statements are unremarkable and
generalized and could be submitted in nearly every expungement case. . . . the State
presented almost no evidence that sealing R.H.B.’s criminal record would present a unique
or particularized harm to the public.” Id. at 822-23. Here, while respondents’ brief was
more substantial, it was still “little more than generalities” in substance. Respondents
provided more detail with respect to their intended purposes and the potential implications
of the nature and perceived severity of the dismissed charges against G.R.K., but they did
not explain how the expungement of G.R.K.’s dismissed charges would “present a unique
and particularized harm to the public.” Id. This, in tandem with the facts that the district
court found that G.R.K. did not pose a risk to others and that there was no indication that
she would apply for a job for which respondents are responsible for screening applicants,
renders the evidence brought by respondents less than clear and convincing.
Reversed.