                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-1109

                     Grant County Social Services, Natasha Kaiser,
                                    OBO A.C.R.,
                     Ward of the Commissioner of the State of MN,
                                    Respondent,

                                           vs.

                                        S. J. M.,
                                       Appellant.

                                   Filed May 4, 2015
                                       Affirmed
                                    Hudson, Judge

                              Grant County District Court
                                File No. 26-CV-13-214

Justin R. Anderson, Grant County Attorney, Elbow Lake, Minnesota (for respondent)

Christopher J. Cadem, Cadem Law Group, PLLC, Fergus Falls, Minnesota (for appellant)

      Considered and decided by Bjorkman, Presiding Judge; Hudson, Judge; and

Smith, Judge.

                        UNPUBLISHED OPINION

HUDSON, Judge

      Appellant challenges the denial of his motion to expunge the judicial records of an

ex parte harassment restraining order issued against him. Appellant argues that the

district court applied an incorrect standard of review to the expungement motion and that
the court should expunge the records using its inherent authority because his

constitutional rights are infringed by the retention of the records and the benefit of

expungement to him is commensurate with the disadvantages of eliminating the record.

We affirm.

                                            FACTS

         Respondent Grant County Social Services filed a Petition for a Harassment

Restraining Order (HRO) against appellant S.J.M. on behalf of the minor child A.C.R.1

The petition alleged that S.J.M. was a middle-aged male who knew A.C.R. when she

resided with her biological mother and that S.J.M. sent A.C.R. gifts through social

services; attempted to obtain A.C.R.’s contact information; made inappropriate comments

to A.C.R.; and used a false name to send her a long Facebook message. The district court

issued a temporary ex parte HRO valid for two years unless S.J.M. requested a hearing

within 45 days, which S.J.M. did. At the hearing, the parties agreed that S.J.M. would

have no further contact with A.C.R. and the district court dissolved the HRO without

ruling on the merits.

         S.J.M. subsequently moved the court to use its inherent authority to expunge the

HRO petition and the ex parte HRO, claiming that they were libelous. A.C.R. took no

position on the expungement. The district court denied S.J.M.’s motion, determining that

his constitutional rights were not implicated; that the benefit of expungement to S.J.M.

was not commensurate with the disadvantages to the public and the burden on the court;



1
    For ease of reference, this opinion will refer to respondent as A.C.R.

                                               2
and that S.J.M.’s claims that A.C.R.’s statements were libelous were not relevant to an

expungement request. This appeal follows.

                                     DECISION

       S.J.M. argues that the district court abused its discretion by denying his motion to

expunge the HRO petition and the ex parte HRO. The district court has inherent power

that “governs that which is essential to the existence, dignity, and function of a court

because it is a court.” In re Clerk of Lyon Cnty. Court’s Comp., 308 Minn. 172, 176, 241

N.W.2d 781, 784 (1976). The court may exercise its inherent power to expunge records

where their retention seriously infringes a petitioner’s constitutional rights. State v.

M.D.T., 831 N.W.2d 276, 280 (Minn. 2013). Alternatively, the court may use its inherent

authority “to control court records . . . in order to reduce or eliminate unfairness to

individuals, even though the unfairness is not of such intensity as to give a constitutional

dimension.” State v. C.A., 304 N.W.2d 353, 358 (Minn. 1981). We review the “district

court’s exercise of its inherent authority to expunge records that are located within the

judicial branch [as] a matter of equity . . . under an abuse-of-discretion standard of

review.” State v. N.G.K., 770 N.W.2d 177, 180 (Minn. App. 2009). The abuse-of-

discretion standard extends to the review of an expungement denial where the petitioner

claims his constitutional rights are violated by the retention of records. State v. H.A., 716

N.W.2d 360, 363 (Minn. App. 2006). We will set aside underlying findings of fact only

if they are clearly erroneous. N.G.K., 770 N.W.2d at 180.

       Relying on Barlow v. Comm’r of Pub. Safety, 365 N.W.2d 232, 234 (Minn. 1985),

the district court concluded that its inherent powers to expunge even a civil file “are


                                             3
properly exercised only where a person’s constitutional rights might be seriously

infringed by retention of public records.” S.J.M. argues that (1) the district court’s

conclusion misstates the law and (2) petitions seeking only judicial record expungement

are subject to a “lower standard” than those seeking to expunge executive level records.

S.J.M. cites no authority for his second proposition, and therefore we reject it. See

Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (declining to

address allegations unsupported by legal analysis or citation). As to his first claim, the

district court’s statement—standing alone—does misstate the law. See C.A., 304 N.W.2d

at 358 (stating that a court’s inherent authority to control records may apply even where

there is not a constitutional dimension). But we note that later in its order, the district

court correctly cites and addresses its inherent authority to expunge records, even when

the claim does not rise to the level of a constitutional violation. In addition, we observe

that the district court was faced with an unusual procedural and substantive posture.

Unlike a motion for the expungement of criminal or eviction records, there is no statutory

basis for a petitioner to seek expungement of HRO records. See Minn. Stat. §§ 609A.01-

.04 (2014) (detailing the grounds and procedures for expunging certain types of criminal

records, including the violation, but not the issuance, of an HRO); Minn. Stat. § 484.014

(2014) (explaining the process for expunging eviction case court files). Nor have we

found any relevant caselaw regarding the expungement of civil HRO records. In the

absence of such guidance, the district court applied the criminal expungement standard

and we see no error requiring correction.




                                            4
       S.J.M. next asserts that the creation and retention of the HRO records infringes

upon his constitutional rights. We disagree. S.J.M. alleges that the retention of the

records violates his right to due process because the harassment claims were not proven

and he had no opportunity to rebut the claims. But the HRO statute specifically allows

for the issuance of an ex parte HRO on “reasonable grounds to believe that [a party] has

engaged in harassment” prior to a hearing on the merits.          Minn. Stat. § 609.748,

subd. 4(b), (c) (2014) (allowing the court to issue an ex parte HRO without notice to the

responding party). And S.J.M. does not contest the constitutionality of this statute. He

next claims that his constitutional rights are infringed upon because the statements are

libelous and he contends that an expungement is the only available remedy to address the

infringement. But S.J.M. has not proven that the statements were libelous—or even

false—such that he is entitled to any remedy. Instead, the ex parte HRO was dismissed

with the agreement that S.J.M. would “have no contact whatsoever” with A.C.R.; no

decision was made on the merits of those allegations.

       For the first time on appeal, S.J.M. also argues that the HRO violated his

constitutional interest in freedom of association with A.C.R. But freedom of association

is not relevant to the retention of records and we generally do not address constitutional

issues raised for the first time on appeal. See In re Welfare of C.L.L., 310 N.W.2d 555,

557 (Minn. 1981) (declining to address a constitutional issue raised for the first time on

appeal from a termination of parental rights).

       As noted earlier, even where a constitutional right is not infringed upon, the court

may use its inherent authority to expunge records, including civil case records. See


                                             5
Barlow, 365 N.W.2d at 234 (applying the inherent-authority expungement basis to

appellant’s request to expunge records of his driver’s license revocation). In making this

determination, we first consider whether the requested relief is necessary to the

performance of the judicial function. State v. S.L.H., 755 N.W.2d 271, 275 (Minn. 2008).

“Inherent judicial power governs that which is essential to the existence, dignity, and

function of a court because it is a court.” C.A., 304 N.W.2d at 358 (quotation omitted).

The court does not “resort to inherent authority to serve the ‘relative needs’ or ‘wants’ of

the judiciary, but only for ‘practical necessity in performing the judicial function.’”

S.L.H., 755 N.W.2d at 275 (quoting In re Clerk of Lyon Cnty., 308 Minn. at 181, 241

N.W.2d at 786).

       The court’s judicial function includes the power to “control court records and

agents of the court in order to reduce or eliminate unfairness to individuals, even though

the unfairness is not of such intensity as to give a constitutional dimension.” C.A., 304

N.W.2d at 358. The court may use its inherent authority to expunge judicial records

when “the relief requested by . . . the aggrieved party [is] necessary to the performance of

the judicial function as contemplated in our state constitution.” S.L.H., 755 N.W.2d at

275 (quotation omitted). Here, we conclude that a request for expungement of judicial

records related to an ex parte HRO can be a type of relief necessary for the performance

of a judicial function and therefore that a request for an expungement can be an

appropriate circumstance for the court to invoke its inherent authority to control its own

records.




                                             6
       We must then decide whether S.J.M.’s request for expungement, if granted, “will

yield a benefit to the petitioner commensurate with the disadvantages to the public from

the elimination of the record and the burden on the court in issuing, enforcing and

monitoring the order.” Barlow, 365 N.W.2d at 234 (quotation omitted). There are five

factors for the district court to consider in determining whether the benefits are

commensurate with the disadvantages. H.A., 716 N.W.2d at 364. But only three of those

factors apply to HRO records: (1) “the extent that a petitioner has demonstrated

difficulties in securing employment or housing as a result of the records sought to be

expunged,” (2) “the potential risk that the petitioner poses and how this affects the

public’s right to access the records,” and (3) “other objective evidence of hardship under

the circumstances.” Id.

       In Barlow, the petitioner sought to expunge his driver’s license revocation records

after the revocation was rescinded. 365 N.W.2d at 233. The supreme court observed that

even though the petitioner’s license was reinstated, there may have been grounds for the

initial revocation. Id. at 234; see also S.L.H., 755 N.W.2d at 277 (noting the difference

between the unfairness of retaining harmful records after a conviction has been set aside

as opposed to where a conviction was not challenged). The court held that petitioner’s

potential increased insurance expenses did not rise to a constitutional violation and that

there was “no basis for the intrusion of inherent judicial power.” Barlow, 365 N.W.2d at

234.

       S.J.M. argues that the benefit to him of expunging the HRO records is

commensurate with the disadvantage to the public in eliminating the record and the


                                            7
burden on the court in monitoring the order.       While he claims that it is common

knowledge that an HRO record will affect his housing and employability—more so than

the Barlow petitioner who only speculated that his insurance rates would increase—we

are not persuaded. S.J.M. has not submitted any evidence demonstrating that his housing

or employment has actually been affected.       See N.G.K., 770 N.W.2d at 180 (“[A]

petitioner may not justify expungement with ‘speculative’ evidence.”).

      S.J.M. also argues that it is unfair for the court to maintain the HRO petition

because it contains false facts and it does not allege that S.J.M. was previously asked to

stop contacting A.C.R. But the record is clear that the ex parte HRO was vacated by

agreement of the parties; the district court made no decision on the merits. And while

S.J.M. claims that his contact with A.C.R. was innocuous, there is an advantage to the

public in keeping records of an adult male’s seemingly inappropriate contact with a

teenage girl. Additionally, the dismissal included the agreement that S.J.M. would not

contact A.C.R., an important record. S.J.M. does not document any other hardships

associated with maintaining the record, other than speculative claims that the allegedly

false statements will result in “embarrassment, ridicule, and defamation of character.”

While S.J.M. is correct that it would likely not burden the court to monitor the

expungement, this does not tip the balancing test in his favor. We thus conclude that the

benefit to S.J.M. is not commensurate with the disadvantage to the public and his request

does not overcome the presumption of access to the records. See Star Tribune v. Minn.

Twins P’ship, 659 N.W.2d 287, 295 (Minn. App. 2003) (holding that a presumption of

access to judicial records exists under common law and the First Amendment).


                                            8
Therefore, the district court did not abuse its discretion by denying the expungement

request.

       Affirmed.




                                         9
