                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2012).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-0560

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                A. Y. G., a/k/a A. Y. L.,
                                      Appellant.

                               Filed December 15, 2014
                                      Reversed
                                     Reyes, Judge

                             Ramsey County District Court
                File Nos. 62K007002130; 62K007002287; 62K704003454
                             62T707013819; 62CR122120

Lori Swanson, Attorney General, Gail A. Feichtinger, Assistant Attorney General,
St. Paul, Minnesota (for respondent)

A.Y.G., Brooklyn Park, Minnesota (pro se appellant)

      Considered and decided by Reyes, Presiding Judge; Cleary, Chief Judge; and

Worke, Judge.

                        UNPUBLISHED OPINION

REYES, Judge

      Appellant, pro se, challenges the district court’s order denying her request to

expunge criminal records maintained by the Minnesota Department of Human Services

(DHS). Because the district court abused its discretion in ruling that DHS submitted
clear and convincing evidence sufficient to overcome the statutory presumption favoring

expungement, we reverse.

                                         FACTS

       Appellant sought expungement of her criminal records relating to five separate

court files from the Second Judicial District maintained by the Judicial and Executive

Branches. All five charges were eventually resolved in appellant’s favor. In 2004,

appellant was charged with a violation of an order for protection and disorderly conduct,

but the charges were dismissed later that year. On May 29, 2007, appellant was charged

with public nuisance, but the charges were dismissed six months later pursuant to a

continuance for dismissal. On June 14, 2007, appellant was charged with felony assault

in the second degree. Twelve days later, appellant was charged with violation of an order

for protection and a domestic-abuse no-contact order. All of these charges were

dismissed on February 20, 2008, by the Ramsey County Attorney’s Office. Finally,

appellant was charged with misdemeanor theft in 2012 and was found guilty by a jury.

This court reversed the conviction in an order opinion dated October 2, 2013. State v.

Gibson, No. A12-2072 (Minn. App. Oct. 2, 2013) (order).

       Pursuant to section 245C.15, subdivision 1, of the Minnesota Department of

Human Services Background Studies Act (BSA), DHS used appellant’s 2007 second-

degree assault charge as a basis for disqualifying her from any position allowing direct

contact with persons receiving services from programs licensed by DHS, Minnesota

Department of Health, Department of Corrections, and unlicensed Personal Care Provider

Organizations. Minn. Stat. §§ 245C.01-.34 (2012) (providing title in section 245C.01).


                                             2
DHS determined that information from the St. Paul Police Department and the Ramsey

County District Court showed that there was a preponderance of evidence that appellant

committed felony second-degree assault. On February 20, 2014, DHS notified

appellant’s employer, Summit Fiscal Agency, of appellant’s disqualification.1 Appellant

was subsequently terminated from her job at Summit Fiscal Agency, a position she had

held for three years.

       Appellant petitioned the court for expungement of her criminal record, and a

hearing was held on March 5, 2014. At the hearing, DHS argued that it needed access to

appellant’s record in order to respond to any potential requests for reconsideration. The

district court took the matter under advisement. On March 14, 2014, the district court

granted expungement of all five charges in appellant’s record maintained by the Judicial

and Executive Branches, but denied expungement of records maintained by DHS.2 The

district court correctly stated that, under Minnesota law, a petitioner is presumptively

entitled to expungement unless the public’s interest in keeping the records unsealed

outweighs the disadvantages the petitioner will face if expungement is not granted.

Minn. Stat. § 609A.03, subd. 5(b) (2012). The court noted that criminal records are a

necessary part of a DHS investigation into whether to disqualify an individual from

working in order to protect vulnerable citizens. Because expunging the records would


1
  On February 20, 2014, DHS also sent a letter to appellant notifying her of the
disqualification. The letter was originally sent to the wrong address. DHS sent the letter
to the correct address on March 11, 2014.
2
  The public-nuisance charge was expunged in its entirety because public nuisance is not
a disqualifying offense under the statute. DHS’s records of the other four charges
remained exempt.

                                             3
impede the administrative investigation process, the district court concluded that DHS

“has provided specific reasons as to why the public’s interest outweighs [appellant’s]

interest.” Appellant challenges the district court’s decision on appeal.

                                     DECISION

       Courts have the authority, both statutory and inherent, to grant expungement relief.

State v. Davisson, 624 N.W.2d 292, 295 (Minn. App. 2001), review denied (Minn. May

15, 2001). Appellant’s petition for expungement and the district court order granting

expungement were based solely on statutory grounds. The Minnesota expungement

statute allows for the expungement of criminal records if all pending actions and

proceedings were “resolved in favor of the petitioner.” Minn. Stat. § 609A.02, subd. 3

(2012). “A dismissal is, in a plain sense, a determination in the defendant’s favor. If

there was no valid admission or finding of guilt, the courts have held that such

proceedings were resolved in favor of the petitioner.” State v. K.M.M., 721 N.W.2d 330,

333 (Minn. App. 2006).

       Under the expungement statute, a petitioner is presumptively entitled to

expungement of criminal records “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.”

Minn. Stat. § 609A.03, subd. 5(b). Clear and convincing evidence requires “more than a

preponderance of the evidence but less than proof beyond a reasonable doubt” and is

shown where “the truth of the facts asserted is highly probable.” Weber v. Anderson, 269

N.W.2d 892, 895 (Minn. 1978) (quotation omitted). We review for abuse of discretion


                                             4
the district court’s determination that DHS met its burden of persuasion. See State v.

R.H.B., 821 N.W.2d 817, 822 (Minn. 2012) (finding that when the district court is tasked

with weighing the equities in a balancing test, the appropriate standard of review is abuse

of discretion).

I.     Appellant’s arguments

       Appellant does not explicitly argue that the district court abused its discretion

when it denied her request to expunge records maintained by DHS. Instead, appellant

makes several arguments related to DHS’s initial disqualification determination and her

due-process rights.

       First, appellant argues that the preponderance-of-the-evidence standard is not the

correct standard to apply when making disqualification determinations. Appellant points

out that “non-convictions” are not listed under section 245C.14, subdivision 1(1), of the

BSA and argues that, although section 245C.15 references dismissals, “one has to assume

that the dismissal derived from a conviction or plea of guilt and not an individual who has

a non-conviction.” Minn. Stat. § 245C.14, subd. 1(1) (2012); Minn. Stat. § 245C.15

(2012). But appellant did not raise any statutory interpretation arguments at the district

court and is barred from bringing one for the first time on appeal. See Thiele v. Stich, 425

N.W.2d 580, 582 (Minn. 1988). Moreover, appellant’s argument ignores the clear

language of section 245C.14, subdivision 1(a)(2), which permits disqualification if “a

preponderance of the evidence indicates the individual has committed an act or acts that

meet the definition of any of the crimes listed in section 245C.15.” Minn. Stat.




                                              5
§ 245C.14, subd. 1(a)(2) (2012). Assault in the second degree is a crime listed under

section 245C.15. Minn. Stat. § 245C.15, subd. 1 (2012).

       Second, appellant argues that the evidence DHS relied on when making the

disqualification determination—namely, the police report detailing the second-degree

assault charge—was insufficient to rise to the level of a preponderance of the evidence.

This argument mischaracterizes the issue on appeal. The crucial issue before this court is

whether the district court abused its discretion when it determined that DHS had

overcome the statutory presumption favoring expungement by providing clear and

convincing evidence that “the interests of the public and public safety outweigh the

disadvantages to the petitioner of not sealing the record.” Minn. Stat. § 609A.03, subd.

5(b) (2012). Challenges to the preponderance-of-the-evidence determination are more

apt for the reconsideration process laid out in Minnesota Statutes § 245C.21 (2012).

Under that process, a disqualified individual may request reconsideration within 30 days

of a disqualification decision. Minn. Stat. § 245C.21, subd. 2 (2012).3 If reconsideration

is denied, a person who has been permanently disqualified based on a preponderance of

the evidence, rather than a conviction, has the right to a fair hearing. Minn. Stat.

§ 245C.27, subd, 1(a) (2012); see also Minn. Stat. § 256.045, subd. 3(a)(10) (2012). An

aggrieved party may seek review of the fair hearing determination through a writ of

certiorari to this court. Minn. Stat. §§ 480A.06, subd. 3, 606.01 (2012). At that point,


3
 Under certain circumstances, DHS may set aside a disqualification, but this does not
apply to those permanently disqualified pursuant to section 245C.15, subdivision 1.
Minn. Stat. § 245C.24, subd. 2 (2012). Appellant was permanently disqualified because
second-degree assault is listed under section 245C.15, subdivision 1.

                                              6
this court would review the quasi-judicial agency decision for “questions affecting the

jurisdiction of the [agency], the regularity of its proceedings, and, as to the merits of the

controversy, whether the order or determination in a particular case was arbitrary,

oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any

evidence to support it.” Anderson v. Comm’r of Health, 811 N.W.2d 162, 165 (Minn.

App. 2012), review denied (Minn. Apr. 17, 2012). Appellant’s challenges to DHS’s

initial disqualification decision are more appropriately handled at that stage.

       Third, appellant makes a general due-process argument based on the Fifth

Amendment. As required by section 245C.17, DHS notified appellant of her

disqualification and informed her about the reconsideration process. Minn. Stat.

§ 245C.17 (2012). While the letter was originally sent to the wrong address, DHS

corrected its mistake as soon as it learned of it and allowed the 30-day deadline to begin

once the letter was delivered to the correct address. Appellant contends that this mistake

should rescind the disqualification based on section 245C.22, subdivision 2, which states

that “[t]he commissioner shall rescind the disqualification if the commissioner finds that

the information relied upon to disqualify the subject is incorrect.” Minn. Stat. § 245C.22,

subd.2 (2012). Because nothing in the record indicates that the disqualification decision

was based upon the mistake in appellant’s home address, it is unclear how her due-

process rights have been violated.

       Finally, appellant argues that DHS violated the constitutional prohibition against

double jeopardy because DHS does not have the authority to retry appellant for offenses

for which she was deemed innocent. The Double Jeopardy Clauses of the United States


                                              7
and Minnesota Constitutions operate to protect a criminal defendant from (1) a second

prosecution for the same offense after acquittal; (2) a second prosecution for the same

offense after conviction; and (3) multiple criminal punishments for the same offense.

State v. Humes, 581 N.W.2d 317, 320 (Minn. 1998). The Double Jeopardy Clause

protects “only against imposition of multiple criminal punishments for the same offense.”

Id. (emphasis in original). Because DHS has not imposed additional criminal

punishments, appellant’s double jeopardy argument is unavailing.

II.    The district court’s determination

       As previously noted, appellant, who appears pro se, does not explicitly argue that

the district court abused its discretion when it denied her expungement request. Despite

appellant’s oversight, this court will address whether an abuse of discretion occurred.

See State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990) (“[I]t is the

responsibility of appellate courts to decide cases in accordance with law, and that

responsibility is not to be diluted by counsel’s oversights, lack of research, failure to

specify issues or to cite relevant authorities.”) (quotation omitted). In doing so, this court

asks whether the district court abused its discretion by ruling that DHS had presented

evidence sufficient to overcome the statutory presumption favoring expungement. See

R.H.B., 821 N.W.2d at 821.

       The parties do not dispute that appellant’s second-degree assault charge was

eventually dismissed, thereby entitling appellant to a statutory presumption favoring

expungement. See Ambaye, 616 N.W.2d at 257. In State v. R.H.B., the supreme court

clarified that the presumption can only be overcome if the party opposing expungement


                                              8
“establishes by clear and convincing evidence” that it met its burden of persuasion. 821

N.W.2d at 820-22; Minn. Stat. § 609A.03, subd. 5(b). In R.H.B., the court held that the

state failed to meet its burden of persuasion because the three affidavits it submitted

presented “little more than generalities explaining why it is beneficial . . . to maintain the

criminal records of an acquitted defendant.” 821 N.W.2d at 822. The court referred to

such statements as “unremarkable and generalized, and could be submitted in nearly

every expungement case.” Id. Finally, the court analyzed the specific disadvantages to

the petitioner, noting that “inherent disadvantages” are suffered by any expungement

petitioner. Id. at 824.

       Here, DHS presented minimal evidence to the district court. DHS argued that

refusing to seal the records would benefit public safety because “[d]efendant was charged

with assaultive behavior. Defendant works with vulnerable populations, and she has

indicated that she wishes to continue to do so. Accordingly, the balancing test clearly

weighs in favor of denying Defendant’s petition.” At the expungement hearing, DHS

argued that because appellant could potentially request reconsideration in the future, DHS

would need access to the records in order to carry out that administrative proceeding. In

support of these two arguments, DHS submitted only one exhibit: the original letter

notifying appellant that she had been disqualified. DHS makes the same arguments on

appeal.

       DHS’s arguments are mere generalities. When faced with a statutory presumption

favoring expungement, DHS is burdened with providing clear and convincing evidence

showing that keeping the records unsealed would benefit the public such that the burden


                                              9
on the petitioner would be outweighed. For example, DHS argues that appellant’s simple

indication that she wishes to continue her work with vulnerable adults is enough to

overcome the burden of persuasion. But such an argument is certainly not enough to

constitute clear and convincing evidence sufficient to overcome the statutory presumption

favoring expungement. Instead, these statements are of the type that are “unremarkable

and generalized, and could be submitted in nearly every expungement case.” R.H.B., 821

N.W.2d at 822.

       DHS’s argument relating to the need for future access to the records is

unconvincing. At its core, DHS argues that it might need access to appellant’s records in

the future. In addition to being circular, this argument once again is unremarkable,

generalized, and of the type that could be offered in every expungement case. If allowed

to make this type of argument here, then DHS could make a similar argument at every

future expungement hearing in which the reconsideration process has not been exhausted.

In similar scenarios in the future, the district court would be reduced to rubberstamping

DHS opposition to the expungement petition. Because this argument “could be

submitted in nearly every expungement case,” it is little more than the type of generality

that the supreme court warned against. Id.

       Finally, DHS fails to acknowledge the specific disadvantages to appellant and how

the interests of the public and public safety are outweighed by those disadvantages. In

R.H.B., the supreme court upheld a decision granting expungement when the only

specific disadvantages to the defendant were “inherent disadvantages caused by unproven

criminal accusations—such as personal and professional reputational damage.” Id. at


                                             10
824. While R.H.B. illustrated that “a petitioner is not required to prove specific

disadvantages that he or she will suffer if the petition is denied,” here, the appellant can

in fact point to specific disadvantages—the loss of her job which she had held for the past

three years, and the potential loss of future employment in her field. Id. Because

appellant faces both inherent and specific disadvantages, the benefit to the public must be

that much more substantial if the balancing test is to weigh in favor of expungement. As

the previous discussion indicates, no such showing was made.

       Because the only evidence offered appears to be of the type specifically

discredited in R.H.B., the district court abused its discretion when it determined that DHS

offered clear and convincing evidence that the benefits to public safety outweigh the

burden on appellant.

       Reversed.




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