Minnesota
Restoration of Rights & Record Relief

                                                                                                                Last updated:  September 5, 2024 

I.  Loss & restoration of civil/firearms rights

    A.  Civil rights

Voting rights:  In 2023, Minnesota law HB28 added subsection (2a) to § 201.014 of the Election Code, limiting disenfranchisement due to a felony conviction only during a period of incarceration for a felony offense:   

An individual who is ineligible to vote because of a felony conviction has the civil right to vote restored during any period when the individual is not incarcerated for the offense.  If the individual is later incarcerated for the offense, the individual’s civil right to vote is lost only during that period of incarceration.

Prior to this amendment, the right to vote was restored upon “discharge” from sentence, along with other civil rights. 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.”).  See also Minn. Stat. § 242.31 subd. 1 (restoration of civil rights upon “final discharge” by order of the commissioner of corrections), subd. 2 (restoration upon discharge from probation by order of the court).  

In addition, HB28 created a new § 201.276 directed the secretary of state to “develop accurate and complete information in a single publication about the voting rights of people who have been charged with or convicted of a crime,” and to make it “available electronically to the state court administrator for distribution to judges, court personnel, probation officers, and the commissioner of corrections for distribution to corrections officials, parole and supervised release agents, and the public.” Correctional facilities must give notice of the right to vote upon release. § 243.205, subd. 1. Minnesota’s Voter’s Bill of Rights and polling place rosters were also amended to state a person has the right to vote if the individual is not currently incarcerated for conviction for a felony offense. §§ 204C.08, subd. 1d(8), 204C.10(a)(7). 

Office eligibility: Eligibility to hold office depends upon eligibility to vote. Minn. Const. art. VII, § 6 (“Every person who by the provisions of this article is entitled to vote at any election and is 21 years of age is eligible for any office elective by the people in the district wherein he has resided 30 days previous to the election, except as otherwise provided in this constitution, or the constitution and law of the United States.”)  It would appear that eligibility to hold office was restored along with the franchise under the 2023 law described in the preceding section. An exception on restoration to office eligibility is where conviction is for bribery, in which case the person is “forever disqualified” from public office.  See Minn. Stat. § 609.42, subdiv. 2.  

Jury eligibility:  Under Rule 808 of the Minnesota Court Rules, a person convicted of a felony is qualified to serve as a juror only if their civil rights have been restored.  

Juvenile adjudications do not give rise to any of the “civil disabilities” that may be imposed as a consequence of an adult conviction, with the exception of firearms disabilities in certain cases (see following section). 

    B.  Firearms

Individuals convicted of a “crime punishable by imprisonment for a term exceeding one year” or convicted or adjudicated delinquent 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 “any other firearm.” § 624.713, subd. 3. Significantly, Minnesota’s definition of a crime of violence includes all felony level drug offenses, even simple possession.  § 624.712, subd. 5.

Firearms rights are not restored automatically upon completion of sentence along with other civil rights, but they may be regained by petitioning a court for restoration.  § 609.165, subd. 1a.  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.1 Forms are made available through the Minnesota State Courts. FIR101.pdf (mncourts.gov)

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(b). 

Firearms rights may be restored in most cases by a pardon or expungement, § 624.712, subd. 10 (“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 definition”) except that expungement does not restore firearms rights to an individual convicted of a crime of violence, and the expungement order must so provide.  Minn. Stat. §609A.03, subd. 5a. 

II.  Pardon policy & practice

    A.  Authority of Board of Pardons

Minn. Const. art. V, § 7 provides for a Board of Pardons composed of the governor, the attorney general and the chief justice of the supreme court, whose “powers and duties shall be defined and regulated by law.” See also § 638.01. The section continues:  “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.”  Id.  The Board’s authority and procedures are specified in Ch. 638 of the Minnesota Statutes.   The Board has the power to commute or grant a reprieve of a sentence. Minn. Stat. § 638.12, subd. 1.  The Board also has the power to grant a “pardon extraordinary” to people who have completed their sentences.  § 638.12, subd. 1.  Persons convicted of federal offenses and under the law of another state are not eligible for a state pardon.  See Minn. Const. art. V, § 7; Minn. Stat.  § 638.12, subd. 1. 

Until 2023, a statute required Board decisions to be unanimous, and this statute was upheld against constitutional challenge by the Minnesota Supreme Court in 2022.2  In 2023, as part of a major administrative reform of the pardon process included in an omnibus criminal justice package (SF 2909), the requirement of unanimity was abandoned and a provision substituted providing that a grant of clemency “has no force or effect if the governor or a board majority duly convened opposes the clemency.” Minn. Stat. § 638.12 subd. 1(c). In other words, a pardon is effective if granted by a majority of the Board, as long as the governor is in the majority.  Under the comprehensive restructuring of the clemency authority and process in 2023, the board is required to report to the legislature by February 15 each year.  See below.  

Clemency Review Commission:  The 2023 reform also restructured the administrative process for investigating clemency applications and making recommendations to the Board, replacing the commissioner of corrections with a 9-member Clemency Review Commission to investigate applications and make recommendations to the Board.  Commission members are appointed in equal numbers by the members of the Board and serve for the duration of their appointing authority’s term. Minn. Stat. § 638.09. The Commission elects its own chair, who serves as the secretary of the Board; and the Board appoints a commission executive director.  Id.  The Clemency Review Commission was established effective August 1, 2023, and the reformed process is effective July 1, 2024.   The Commission’s website contains additional information about standards for applying and procedure, and a helpful series of Frequently Asked Questions covering elihibility and procedures. 

    B.  Eligibility

Five-year eligibility:  The 2023 reforms of the pardon process repealed and reenacted provisions relating to the eligibility waiting period for full pardons.  For most crimes, a person must wait five years from final discharge, which requires payment of fines and restitution (see Section I above). Minn. Stat. § 638.12 subd. 2(a). The provisions of the prior law applying a 10-year waiting period to those convicted of violent crimes were repealed, as was a provision limiting reconsideration after denial.  Those convicted under the theory of liability for first degree murder or convicted of unpremeditated murder may apply for pardon immediately upon discharge under certain circumstances.  § 638.12 subd. 2(b). 

Waiver:  The Board may waive the waiting period “if there is a showing of unusual circumstances and special need,” and the Board “must grant a waiver request unless the governor or a board majority opposes the waiver.”  § 638.12 subd. 2(c).  In the past, it appears that waiver requests were rarely granted.  

Expedited review: The Board and the Clemency Review Commission may create by rule an expedited review process for non-violent offenses. Minn. Stat. § 638.23(a)(2).  “A rule adopted under paragraph (a), clause (2), must specify the types of nonviolent crimes eligible for expedited review and the level of support needed from the sentencing judge or successor, the prosecuting attorney or successor, and any victims of the crime for the board to consider the application under the expedited review process.”  

    C.  Effect

A pardon restores all rights not otherwise regained upon completion of sentence, including firearms rights, and “sets aside the conviction and purges the conviction from an individual’s criminal record.” § 638.12, subd. 1(d); see also § 624.712, subd. 10. The pardoned individual is not required to disclose the conviction “at any time or place other than: (1) in a judicial proceeding; or (2) during the licensing process for peace officers.”  Id. 

Sealing: In addition, for the first time under the 2023 reforms, after a pardon is granted, a copy of the pardon is filed with the district court in the county of conviction, which “will also seal all records wherever held.” § 638.12 subd. 1(b)3  This reform appears to be retroactive, applying to all pardons granted prior to the effective date of the new law. 

    D.  Process

Pardon Application forms are available on the Clemency Review Commission’s website here. After the new Clemency Review Commission’s initial investigation of a clemency application, the commission must notify the applicant of the scheduled date, time, and location that the applicant must appear before the commission at its “meeting” under §§ 638.13, 638.14.  The statute provides for the contents of the application.4 § 638.10.   

Commission meetings:  “The commission must meet at least four times each year for one or more days at each meeting to hear eligible clemency applications and recommend appropriate action to the board on each application.” The statute provides that the commission must give notice to victims, to the sentencing judge and prosecutor, and to the public, of the commission meeting at which the application will be heard.  “The commission must publish notice of an application in a qualified newspaper of general circulation in the county in which the applicant’s crime occurred.” All commission meetings shall be open to the public unless there are security or victim privacy issues warranting closure.  § 638.14, subd. 1.  An applicant for clemency “must appear before the commission either in person or through available forms of telecommunication.”  Id. at subd. 5. Victims, the sentencing judge and prosecutor, may also appear.  Before its next meeting the commission must send its recommendation to the board, and within 14 calendar days “must notify the applicant in writing of its recommendations under this subdivision.” § 638.15, subd. 4(b). . When a pardon is denied, reapplication is only after five years unless a waiver is granted by the commission “based only on new and substantial information that was not and could not have been previously considered by the board or commission.”  § 638.19(b). 

Grounds for recommending clemency are set forth in the statute, and they include “the extent to which the applicant has demonstrated rehabilitation through postconviction conduct, character, and reputation,” “the extent to which the applicant has accepted responsibility, demonstrated remorse, and made restitution to victims,” and “the applicant’s asserted need for clemency, including family needs and barriers to housing or employment created by the conviction.” § 638.15, subd. 1. 

Board meetings:  The board must meet “at least two times each year to consider and vote on clemency applications.”  § 638.16, subd. 1. A further hearing may be held before the board on the commission’s recommendation “unless all the board members decline a hearing.” Id.  At each meeting, the board “must render a decision on each clemency application considered at the meeting or continue the matter to a future board meeting. If the board continues consideration of an application, the commission must notify the applicant in writing and explain why the matter was continued.”   § 638.17. Board meetings are also open to the public. 

Court action:  After clemency has been granted, the commission must file a copy of the pardon with the district court of the county in which the conviction and sentence were imposed, and the court must set aside the conviction and seal the record “and prohibit the disclosure of the existence of the records or the opening of the records except under court order” or pursuant to other law. § 638.18.  The court must send a copy of its “expungement order” to all law enforcement agencies.  Id. at subd. 2(b).   

Report to the legislature: On February 15, 2025, and every February 15 thereafter, the commission must submit a written report to the chairs and ranking minority members of the house of representatives and senate committees with jurisdiction over public safety, corrections, and judiciary that contains at least the following information: (1) the number of clemency applications received by the commission during the preceding calendar year; (2) the number of favorable and adverse recommendations made by the commission for each type of clemency; (3) the number of applications granted and denied by the board for each type of clemency; (4) the crimes for which the applications were granted by the board, the year of each conviction, and the individual’s age at the time of the crime; and (5) summary data voluntarily reported to the legislature by applicants, including but not limited to demographic information on race, ethnicity, gender, disability status, and age, of applicants recommended or not recommended for clemency by the commission. § 638.22.

    E.  Frequency of grants

The Annual Reports to the Legislature of the Board of Pardons are available back to 1992 on the Department of Corrections website.  They reveal a regular process with consistently modest productivity over the years.   While the number of applications has increased in the past five years, prior to the 2023 reforms only 10-20 “pardons extraordinary” were granted each year, between 1/3 and 1/2 of all cases docketed (deemed eligible, according to the statutory criteria).   For the most part, prior to the 2023 restructuring of the pardon process, pardons were granted to people who committed unremarkable crimes while relatively young, most of whom had been required to wait at least a decade before applying. 

    F.  Contact

Clemency Review Commission

520 Lafayette Road North

St Paul, MN. 55155

E-mail: clemency.review.commission@state.mn.us

Phone: 651-539-2610

III.  Expungement, sealing & other record relief

    A.  Expungement/sealing of adult records – overview

Minnesota has two types of record-clearing relief, common law and statutory. In recent years, notably since 2014, statutory expungement has expanded to cover many “qualifying offenses” and most non-conviction records. Statutory expungement is automatic in some circumstances; petition-based in others, and considered by a panel for cannabis-related offenses

Automatic expungement:  In 2023, as part of a comprehensive reform of the criminal justice system, the Minnesota legislature made expungement relief automatic in most cases already eligible for petition-based expungement. At the same time, courts have tightened requirements for common law (“inherent authority”) sealing. 

We present statutory relief below, followed by a brief note on common law sealing.  Relief for non-conviction records is presented in a separate section, as is relief for cannabis convictions and pardoned convictions. 

    B.  Statutory expungement of adult conviction records 

Since 2014, Minnesota courts have had statutory authority to seal (or “expunge,” a term used interchangeably) judicial and executive branch records in a broad range of “qualifying offenses” and other criminal matters: misdemeanors, gross misdemeanors and a long list of minor non-violent felony convictions after waiting periods ranging from two to five years. See generally Minn. Stat. § 609A. Listed below are the waiting periods.

A person petitioning for an expungement must establish that the need to expunge the record outweighs the risk to public safety.  Minn. Stat. § 609A.03, et seq.  The law protects employers from liability where a record was expunged and requires background screening companies to delete expunged records.  See infra Part IV. For a survey of the provisions of the comprehensive 2014 law, see Emily Baxter, Minnesota’s sweeping new expungement law takes effect, CCRC, Jan 1, 2015. 

The comprehensive criminal justice reform enacted in 2023 made few changes to this basic law governing petition-based expungement, though did expand the list of “qualifying offenses” to include certain drug crimes.

Eligibility:  Those successfully completing the terms of a diversion program or stay of adjudication must wait one conviction-free year; those convicted of or who received a stayed sentence for a misdemeanor must wait two conviction-free years after completion of sentence; those convicted of a gross misdemeanor must wait three years (reduced from four years in 2023); and those convicted of a list of more than 50 eligible felonies (primarily fraud and drug crimes) listed in subd. 3(b) as “qualifying offenses” must not have been convicted of a new crime for at least four years (reduced from five years in 2023) since discharge of the sentence for the crime. Unpaid fines and restitution may delay discharge, and thus extend the period prior to eligibility for up to 10 years after the “due date,” or until the end of probation, whichever is later. Minn. Stat. § 609.104, subds. 1, 2, Minnesota Judicial Branch Policy #209 (July 15, 2010). Failure to pay restitution while on a suspended sentence may lead to extension of probation for up to one year beyond the otherwise maximum term. Id. § 609.135 subd. 2(hg).

In 2023, fifth degree drug crimes were added to those eligible for expungement by petition, with a waiting period of four years.  In 2024, the Minnesota state legislature added convictions of a felony deemed to be a gross misdemeanor, not listed as a “qualifying offense,” eligible if not convicted of a new crime for at least five years. H.F.No. 5216 (effective May 22, 2024). If a felony offense is not listed on the list of eligible felony convictions, which falls outside those deemed to be a gross misdemeanor, the matter is never eligible for an expungement no matter how much time has passed.  Individuals with these types of cases should look to the pardon process for relief.  See supra Part II.

Importantly, when a conviction is reduced from a felony to a gross misdemeanor or misdemeanor following a stay of imposition (§ 609.135), this change does not reduce the offense for purposes of expungement eligibility. See State v. S.A.M., 891 N.W.2d 602 (2017).  The records of a conviction for which registration is required may not be expunged. Minn. Stat.  § 609A.02, subd. 4.

Non-Conviction Records: Expungement 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).  See further description in Section  

Procedures and Standards for Expungement Petitions: Minn. Stat. § 609A.03, subd. 1-3 sets forth procedures for filing a petition for expungement, including service on interested agencies. In all cases involving a petition for expungement, the court holds a hearing where it applies a balancing test to determine eligibility. 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).

Prosecutor Initiated Expungement: In some cases, prosecutors may initiate record expungement. Upon prosecutor agreement, following a good faith effort to notify any identifiable victims of the agreement, no expungement petition is necessary, and the court “shall seal” the record unless it determines that “the interests of the public and public safety in keeping the record public outweigh the disadvantages to the subject of the record in not sealing it.” See § 609A.025.  A balancing test also applies to expungement of non-conviction records, but there is a presumption in favor of relief. See discussion below.

The Minnesota Attorney General’s Office, and several County Attorney Offices, offer prosecutor-initiated expungement.  While there is no guarantee these agencies will accept a person’s case, individuals may apply for consideration free of charge.  Information is provided on the Attorney General’s website.

No petition is necessary with the agreement of the prosecutor, and the court “shall seal” the record unless it determines that “the interests of the public and public safety in keeping the record public outweigh the disadvantages to the subject of the record in not sealing it.” See § 609A.025.  A balancing test also applies to expungement of non-conviction records, but there is a presumption in favor of relief. See discussion below.

    C. Automatic expungement

In 2023, as part of a comprehensive reform of the criminal justice system, SF 2909 authorized automatic expungement of non-conviction records, most misdemeanors, and many non-violent felonies — all already eligible for petition-based expungement, effective January 1, 2025. See Minn. Stat. § 609A.015. Drug convictions, as well as felonies reduced to gross misdemeanors, and gross misdemeanors reduced to misdemeanors, are not eligible for automatic expungement. Expungement by petition remains available in these cases. The courts are responsible for informing defendants in cases before them of their eligibility for automatic expungement, and the Bureau of Criminal Apprehension is responsible for identifying eligible cases and expunging its records, and informing the courts and law enforcement agencies so that they may expunge/seal their records.  Id., subdiv. 5.

SF2909 also authorized automatic expungement of pardoned convictions § 609A.035 (see separate section below), and cases of mistaken identity. § 609A.017. In addition, a separate law that legalized cannabis will automatically expunge many marijuana misdemeanor records. See HF 100 discussed below.

    D.  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. Almost unique among the states, 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).5

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., 831 N.W.2d 276 (Minn. 2013) (“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 is 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.”

    E.  Effect of expungement

Expungement’s remedy “is limited to a court order or grant of expungement under 609A.15 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.”  Minn. Stat. § 609A.01. 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 (unless notice was given and the order was directed to the commissioner of human services).  See § 609A.03 subd. 7a.  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.

Firearms: Firearms rights may be restored by expungement, § 624.712, subd. 10 (“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 definition”) except that expungement does not restore firearms rights to an individual convicted of a crime of violence, and the expungement order must so provide.  Minn. Stat. §609A.03, subd. 5a. 

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 distributed or 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:  In 2008, Minnesota tightened its law limiting 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. 3(b), subd. 3a. See also Subdiv. 4. Date and notice required (“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.”).

    F.  Pardoned convictions – automatic expungement 

Effective August 1, 2023, when a pardon has been granted by the state Board of Pardons, all records relating to the case shall be automatically expunged, without the need to file a petition. See Minn. Stat. § 609A.035, SF2909 (discussed in Part II, supra.). Previously, what was then called a “pardon extraordinary” had the effect of “nullifying” and “setting aside” the conviction, but it did not expunge or seal the record.  The 2023 expungement reform appears to be retroactive.  

    G.  Cannabis convictions – automatic expungement

In 2023, Minnesota enacted a comprehensive regulatory scheme legalizing adult-use cannabis. See HF 100. Among other things, this law authorized possession of 2 ounces or less of cannabis by persons at least 21 years of age (2 pounds or less in the person’s residence), and provided for automatic expungement of many “nonfelony cannabis offenses” involving the sale or possession of cannabis in the fourth and fifth degree, and non-conviction records. Minn. Stat. § 609A.055. The Bureau of Criminal Apprehension is responsible for identifying eligible cases and informing the court. All told, up to 60,000 cannabis misdemeanor cases will be eligible for automatic expungement.  While there is no provision for informing individuals that their records have been expunged, the law does provide in § 609A.055, subd. 3(e) that

The bureau shall provide information on its publicly facing website clearly stating that persons who are noncitizens may need copies of records affected by a grant of expungement relief for immigration purposes, explaining how they can obtain these copies after expungement or other granted relief, and stating that a noncitizen should consult with an immigration attorney. 

Minnesota’s cannabis legalization law also established a Cannabis Expungement Board composed of the members of the Board of Pardons (see above) and other public officials. This board will review all felony conviction records involving the sale or possession of cannabis to determine if they should be recommended for expungement or resentenced to a lesser offense. Eligible records include the convictions or stayed adjudications for felony cannabis offenses, as well as misdemeanor and petty misdemeanors that were not eligible for automatic expungement. § 609A.06.

Expungement in these cases is “presumed to be in the public interest unless there is clear and convincing evidence that an expungement or resentencing to a lesser offense would create a risk to public safety.” § 609A.06, subd. 7(a). Accordingly, any offense involving “a dangerous weapon, the intentional infliction of bodily harm on another, an attempt to inflict bodily harm on another, or an act committed with the intent to cause fear in another of immediate bodily harm or death” is not eligible for expungement or resentencing by the Cannabis Expungement Board. Id. 

    H.  Felony reduction to misdemeanor  

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 reduction program.  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 reduction authority 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 (March 20, 2017). 

These cases are not eligible for automatic expungement but may be expunged only on petition.  

    I.  Non-conviction dispositions and expungement

1. Stay, deferral, diversion

Minnesota courts have statutory authority to stay imposition of sentences for first-time drug offenders over the objection of the prosecutor.  See Minn. Stat. §§ 152.152, 152.18.  A person who enters a guilty plea pursuant to this authority may have the case deferred pursuant to a pretrial diversion program or continued for dismissal on conditions. Minn. Court Rules of Criminal Procedure 15, Appx. A. Sealing is available under §§ 609A.03, subd. 1, subd. 3(a)(2).

Otherwise, courts have no inherent authority to order a deferred sentence over the objection of the prosecutor:  “A district court may only grant a stay of adjudication over the prosecution’s objection ‘for the purpose of avoiding an injustice resulting from the prosecutor’s clear abuse of discretion in the exercise of the charging function.'” State v. Halsana, 2008 WL 5058623 (Minn. Ct. App., 2008), citing State v. Lee, 706 N.W.2d 491, 496 (Minn.2005) (“clear abuse of the prosecutorial charging function must be found by the court before it may order a stay of adjudication over the prosecutor’s objection”).  

Authorities for diversion managed by prosecutors: County attorneys are authorized to create pre-charge diversion programs for non-person crimes, for individuals with no prior person convictions.  Minn Stat. § 401.065

Deferred prosecution of first drug offenders: A special authority for diversion of first drug offenders who have not previously participated in a diversion program, or been convicted of a felony, was enacted as part of the comprehensive 2023 law.  In certain cases, courts are required to defer prosecution.  Minn. Stat. § 152.18. 

2. Expungement of non-conviction records

Expungement by petition for non-conviction records:  Prior to enactment of the 2023 comprehensive reform of the expungement process, expungement of non-conviction records (cases “resolved in favor of the petitioner”) was subject to a petition-based process that required a balancing test.  See 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.)  For dismissed charges and other favorable dispositions there is no waiting period; for diverted and deferred cases, there is a one-year waiting period after successful completion of conditions in which there may be no new charges. (Prior to the 2023 amendments, there was a conviction-free waiting period of between two and five years for diverted or stayed sentences depending on the nature of the charges).   

The balancing test under Minn. Stat. § 609A.03, subd. 5 applies even to sealing of non-conviction records, but unlike the test that applies to conviction records, there was 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 State v. Bragg, 577 N.W.2d 516, 521 (Minn. Ct. App. 1998)(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, subdiv. 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.”). 

Automatic expungement of certain non-conviction records:  Effective January 1, 2025, non-conviction records will be automatically expunged under authority of §609A.015, subd. 1 (dismissed charges and exoneration) and id. subd. 2 (diversion and stay of adjudication of a “qualifying offense” that is not a felony if the person “has not been petitioned or charged with a new offense, other than an offense that would be a petty misdemeanor” for one year after completion).

Destruction of arrest records:  In cases where no charges were filed or all changes were dismissed prior to a determination of probable cause, Minn. Stat. § 299C.11 provides for mandatory destruction of arrest records and certain identifying information by the Minnesota Bureau of Criminal Apprehension (BCA) and other state agencies (police departments, county attorneys).  In such cases, no petition under chapter 609A is required “if the person has not been convicted of any felony or gross misdemeanor, either within or without the state, within the period of ten years immediately preceding the determination of all pending criminal actions or proceedings in favor of the arrested person.” See State v. Bragg, supra.   

Helpful information about how to apply for expungement is available on the Minnesota courts website.  Forms are available at Minnesota Judicial Branch – Get Forms | Minnesota Judicial Branch (mncourts.gov).  See also Geffen & Letze, supra.

    J.  Administrative sealing of adult records

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.

    K.  Firearms restoration

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.”  Id. at, subd. 1d.

    L.  Juvenile records

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, the 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., 831 N.W.2d 260, 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 individuals 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. 

IV.  Criminal record in employment & licensing

    A.  Public employment and licensing

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, subd. 3.

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 despite efforts to make restitution).

Rehabilitation

Even where a crime is found to be directly related to the public employment or license sought, a 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).

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 decisions.  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

Complaints or grievances against public employers are processed and adjudicated in accordance with the Administrative Procedures Act. Minn. Stat. § 364.06, subd. 1; 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).  Convictions 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, as are other licenses and endorsements.  Minn. Stat. § 364.09.  See Woollett, 540 N.W.2d at 834.

Exceptions

Since 1974, the  list of excepted professions and employment has been enlarged gradually.  The 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)).  The chapter does not apply to juvenile corrections employment if crime involved sexual misconduct.  Id.  The 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.”)  The chapter also does not apply to a license to practice medicine that has been denied or revoked.  § 364.09(d). 

Significantly, the chapter does not apply to licenses issued by the Department of Human Services and the Department of Health, which control access to hundreds of thousands of jobs in the state, and whose restrictions are severe. See discussion in the final section (“Human Services Licensing Restrictions”).

Preliminary determination

In 2022, the legislature enacted a binding preliminary determination procedure “as to whether a criminal record or conviction that may be considered by the state licensor under state law would make the individual ineligible to receive an occupational or professional license, registration, or certificate issued by the state licensor.”  The law also enacted reporting requirements applicable to these preliminary determinations.  See Sec. 37 of HF3255, Minn. Stat. § 214.035, subd.3. The state licensor must issue a written decision within 60 days of receiving a completed preliminary application. If the state licensor determines that a criminal record or conviction would make the applicant ineligible to receive a professional or occupational license, registration, or certificate, the written decision must: (1) state all reasons the professional or occupational license, registration, or certificate would be denied, including the standard used to make the decision; and (2) inform the applicant of any action or additional steps the applicant could take to qualify for a professional or occupational license, registration, or certificate.  If a state licensor determines that no criminal records or convictions would make the applicant ineligible to receive a professional or occupational license, registration, or certificate, that decision is binding on the licensor unless the decision is clearly erroneous under state law or:

(1) the applicant is convicted of a crime or commits any other disqualifying act that may be considered by the state licensor under state law after submission of the preliminary application;

(2) the applicant provided incomplete information in the preliminary application;

(3) the applicant provided inaccurate or fraudulent information in the preliminary
application; or

(4) changes to state law were enacted after the date the decision was issued, making the applicant ineligible under state law to receive a license, registration, or certificate.

    B.  Records that may not be considered 

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. 3(a).  See Part II B, above. 

    C.  Public and private ban-the-box

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). Effective August 1, 2023, the law was further extended to cover applicants “for appointment to multi member agencies, including boards, commission, agencies, committees, councils, authorities, advisory task forces, and advisory councils.” until the applicant moved to the interview or selected as a final candidate. See 2023 Minn. Sess. Law. Serv. Ch. 52 (S.F. 2909). 

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 inquiries about an applicant’s criminal record on an application for employment for positions covered by Section 364.  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.6  The City of Minneapolis followed suit.  See Minneapolis City Council, Resolution 2006R-642).7

    D.  Negligent hiring

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.  See, e.g., Maltby, Lewis and Douglas, Roberta Meyers. “Second Chance Employment: Addressing Concerns About Negligent Hiring Liability,” Legal Action Center and National Workrights Institute, July 2023.

In 2009 the Minnesota Legislature enacted Minn. Stat. § 181.981 to clarify the liability of employers for hiring someone with a criminal record and to limit liability regarding certain records, including those that have been expunged or sealed.  It was further amended in 2013 and 2023, to now read: 

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

(i) a court order sealed any record of the criminal case;

(ii) any record of the criminal case was sealed as the result of an automatic expungement, including but not limited to a grant of expungement made pursuant to section 609A.015; or

(iii) the employee or former employee received a pardon;

(3) the record is of an arrest or charge that did not result in a criminal conviction; or

(4) the action is based solely upon the employer’s compliance with section 364.021.

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 limited 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). A 2023 amendment limited liability for criminal cases automatically sealed under 609A.015. See 2023 Minn. Sess. Law Serv. Ch. 52 (S.F. 2909). 

    E.  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.

    F.  Juvenile adjudications

Juvenile adjudications may not “disqualify the child in any future civil service examination, appointment, or application.”  Minn. Stat. § 260B.245, subd. 1.

    G.  Health and human services licensing restrictions 

In Minnesota, any person seeking to work or even volunteer in a facility licensed by the Minnesota Department of Human Services (“DHS”) or the Minnesota Department of Health (“MDH”) must “pass” a Background Study (“BGS”). See Minn. Stat. ch. 245C, et. seq.  These jobs include hundreds of thousands of positions located at nursing homes, childcare centers, dentists’ offices, medical clinics, chemical use treatment facilities, and more. Minn. Stat. §§ 245C.03–04.  It also includes those who seek a license from DHS or MDH to provide foster care, residential childcare, drug and alcohol treatment and more.  Id.  DHS notes that it received over 500,000 background study application requests in 2023.  https://mn.gov/dhs/general-public/background-studies/

A Background Study is conducted by DHS to determine whether the employer is permitted to hire the applicant.  An employer who permits a disqualified person to access vulnerable individuals risks losing their license to provide care.  Minn. Stat § 245C.09.  In Minnesota, many criminal cases result in DHS “disqualifying” the individual from providing any “direct care” in licensed facilities.  See Minn. Stat. § 245C.15.

Disqualifications are separated into five categories:

    • Permanent Disqualification (subd. 1)
    • 15-year disqualification (subd. 2)
    • 10-year disqualification (subd. 3)
    • 7-year disqualification (subd. 4)
    • 5-year disqualification (subd. 4b)

See Minn. Stat. § 245C.15.

Note, if the disqualification is based on a conviction, the waiting periods described above begin to toll when the person finishes the terms of their sentence.  See Minn. Stat. § 245C.15, subd. 1 (a). For example, if a person is convicted of a felony in 2010 and is released from probation in 2015, then the person is disqualified until 2030.  Please note below that DHS may disqualify individuals who were never convicted of a crime.  See “Non-convictions Can Still Disqualify an Individual,” below.  

Permanent Disqualification: A permanent disqualification, as the name implies, does not expire.  Permanent disqualifications exist for thirty-six (36) criminal matters including but not limited to, murder, criminal sexual conduct, aggravated robbery, kidnapping, and more.  See Minn. Stat. § 245C.15, subd. 1.

15-Year Disqualification: 15-year disqualifications involve most felony matters.  Id. subd. 2.

10-year disqualification:  10-year disqualifications involve most gross misdemeanor matters.  Id. subd. 3.

7-year disqualification: 7-year disqualifications include certain misdemeanor matters.  Id.  at subd. 4.  Additionally, an individual is disqualified for seven years if they commit “serious or recurring maltreatment” of a minor under chapter 260E or a vulnerable adult under section 626.557.  See Minn. Stat.  § 245C.15, subd.  4 (b)(2).  These are civil maltreatment laws enforced by social services agencies and findings are based on the preponderance of the evidence.  Id.  Not all findings of maltreatment, however, rise to the level of “serious or recurring.”  Id. at subd. 4 (b)(2).  “Recurring maltreatment” means more than one incident of maltreatment for which there is a preponderance of evidence that the maltreatment occurred and that the subject was responsible for the maltreatment.  Minn. Stat. § 245c.02, subd. 16.  Serious maltreatment” means sexual abuse, maltreatment resulting in death, neglect resulting in serious injury which reasonably requires the care of a physician, advanced practice registered nurse, or physician assistant whether or not the care of a physician, advanced practice registered nurse, or physician assistant was sought, or abuse resulting in serious injury.  Id. at subd. 18.  Applicants who are disqualified on this basis, may be eligible for an administrative hearing under Minn. Stat. § 256.045.

5-year disqualification: 5-year disqualifications are new in 2023 and involve certain drug crimes.  Minn. Stat. § 245C.15, subd. 4b.  This shortened disqualification period applies to some felony, gross misdemeanor, and misdemeanor drug offenses. Id.

Not all crimes result in disqualification.  For example, misdemeanor disorderly conduct is not a disqualifying offense, but misdemeanor assault is a seven-year disqualification.  Id. at § subd. 4.  To determine which crimes result in a conviction, refer to section § 245C.15.

Individuals are disqualified in several matters involving a judicial determination or an admission.   See Minn. Stat. § 245C.14, subd. 1 (a).  even if they enter into an “Alford Plea,” admit to the offense but prosecution is suspended.  Id.

Licensed family foster care 

Recently, the Minnesota legislature changed the laws for disqualification of individuals who seek to become foster parents of a relative.  See Minn. Stat. § 245C.15, subd. 4a.  These modifications were the result of the state’s effort to ensure that relatives of children needing foster care placements were not ineligible to enroll in the program because of a crime that did not impact their ability to parent a foster child.

Non-convictions can still disqualify an individual. 

Minnesota law allows DHS/MDH to disqualify an individual even if they were not convicted of a crime.  See Minn. Stat. § 245C.14, subd. 1 (a)(2).  The law provides that DHS/MDH shall disqualify a person if the “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.”  Id. This provision results in DHS/MDH disqualifying individuals who were never convicted of a crime.  In practical terms, DHS/MDH can disqualify an individual who was acquitted of a crime because the burden is preponderance of evidence as opposed to the lofty criminal burden of “beyond a reasonable doubt.”  Note individuals who are disqualified by DHS/MDH under the POE may seek an evidentiary hearing to contest the determination.  See Minn. Stat. § 256.045.

DHS/MDH reviews juvenile matters as well.

Minnesota permits DHS/MDH to review and even use juvenile delinquency records when determining whether to disqualify an individual. Minn. Stat. § 245C.08, subd. 4.  If DHS/MDH concludes that the juvenile court matter is the same as an adult crime, the agency disqualifies the person for the corresponding period up to a permanent disqualification.  Accordingly, if a juvenile commits an act as a 14-year-old, that act will follow the juvenile into adulthood and impact their ability to work in health and human services.

Effect of expungement and pardon.

An individual can avoid these disqualifications if they obtain an expungement or pardon.  See Minn. Stat. chs. 609A and 638.  However, when requesting an expungement by petition, one must serve DHS with the Petition.  Minn. Stat. § 609A.03, subd. 7a (b)(4) (an expunged record of a conviction may be opened for purposes of a background study under section 245C.08 unless the commissioner had been properly served with notice of the petition for expungement and the court order for expungement is directed specifically to the commissioner of human service); Minn. Stat. § 245c.08, subd. 1 (b) (Notwithstanding expungement by a court, the commissioner may consider expunged records, unless the commissioner received notice of the petition for expungement and the court order for expungement is directed specifically to the commissioner).

Failure to include DHS will result in the agencies retaining the criminal record forming the basis of disqualification.  Id. Moreover, the new automatic expungement provisions in the Clean Slate Act and cannabis laws do not extend to DHS or MDH.  Minn. Stat. § 609A.055, subd. 3 (c) (The judicial branch shall not order the Department of Health or the Department of Human Services to seal records under this section); Minn. Stat. § 609A.015, subd. 4 (c)(1) (a record expunged under this section may be opened for purposes of a background study by DHS or Professional Educator Licensing and Standards Board). A person can, however, file a petition to expunge the records held by human services, health, or the licensing standards board. Id. at subd. 4(c)(2). However, an amendment added that the commissioner cannot consider automatically expunged records under 609A.017, 609A.025, or 609.035 if notice was received and the order is specifically directed to the commissioner. 2023 Minn. Sess. Law. Serv. Ch. 52 (S.F. 2909)

Set-aside of a disqualification.

An individual who is disqualified may ask DHS/MDH to “set-aside” the disqualification.  If granted, the individual is permitted to work despite disqualification.  Minn. Stat. § 245C.22, subd. 5.  Individuals are eligible for a set-aside if they can prove by the preponderance of the evidence “that the applicant does not pose a risk of harm to any person” the applicant wishes to serve. Id. at subd. 4 (a).  In making this risk of harm assessment, DHS/MDH shall consider:

(1) the nature, severity, and consequences of the event or events that led to the disqualification;

(2) whether there is more than one disqualifying event;

(3) the age and vulnerability of the victim at the time of the event;

(4) the harm suffered by the victim;

(5) vulnerability of persons served by the program;

(6) the similarity between the victim and persons served by the program;

(7) the time elapsed without a repeat of the same or similar event;

(8) documentation of successful completion by the individual studied of training or rehabilitation pertinent to the event; and

(9) any other information relevant to reconsideration.

See Minn. Stat. § 245C.22, subd. 4 (b) (1-9).  When making a decision whether to set-aside a disqualification, DHS/MDH must give “preeminent weight to the safety of each person served [by the program].”  Id. at subd. 2.

Requesting a set-aside is purely a paper request and does not involve providing testimony or other forms of in-person evidence.  An individual seeking a set-aside is not entitled to an evidentiary hearing.  Minn. Stat. § 245C.27, subd. 1 (c). As such, one cannot cross examine or otherwise tailor their argument to address concerns identified by DHS/MDH in denying the set-aside.  Sweet v. Comm. Human Services, 702 N.W.2d. 314 (Minn. App. 2005) (Commissioner of DHS’s failure to provide individual with an evidentiary hearing did not deprive him of procedural due process).  This is a problematic framework for those who are not great writers, where English is not their primary language, those without adequate access to technology, or those who have some issue/disability that impacts their ability to write effectively.

Significantly, with some very minor exceptions, the law does not authorize MDH/DHS to set-aside a permanent disqualification.  Minn. Stat. § 245C.24, subd. 2.

Variances.

If disqualified, a person is still eligible to work in a direct care position if DHS/MDH approves a “variance.”  See Minn. Stat. § 245c.30.  A variance is different from a request for a set-aside.

    • Only the facility/employer can request a variance. A disqualified individual cannot request their own variance.  As such, variances are not frequently used because the employer is required to initiate the action.
    • Can include identified restrictions on employment. Unlike a set-aside, a variance can limit the scope of the person’s employment.  For example, if the applicant is disqualified based on a financial crime, the variance could include language limiting the applicant’s access to client finances.  A set-aside, if approved, cannot include any limitations on employment.
    • It is a time-limited remedy. Variances last for a definitive amount of time and then expire.  The program can seek another variance to extend the time, but it requires an affirmative action.  Set-asides, on the contrary, do not expire as long as the individual remains employed with the same program.
    • One cannot obtain a variance for a permanent disqualification. Similar to the set-aside process, DHS/MDH is not permitted to grant a variance if the underlying disqualification is a permanent disqualification. 

           § § 245C.30, subd.1; 245C.15, subd. 1.

Potential changes in the future.

In 2022, the Minnesota Legislature created the Human Services Background Study Eligibility Task Force to review the law and recommend changes. The Task Force recommended numerous changes including:

    • Limiting use of juvenile records in disqualifications
    • Shortening the length of a disqualification
    • Reducing the number of disqualifying offenses
    • Reducing the number of permanent disqualifications
    • Elimination of Preponderance of Evidence (POE) standard for non-conviction matters. See “Non-convictions Can Still Disqualify an Individual,” Infra.
    • Streamlining disqualification, appeal, and set-asides processes.

See Final Report to the Minnesota Legislature (December 2022). However, the only changes implemented in 2023 are the creation of a 5-year disqualification for certain felony drug matters.  Minn. Stat. § 245C.15, subd. 4b.  Advocates envision proposing legislation in this area in the coming years.

 

  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 Citizens 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, subd. 1(11).  
  2. The provision requiring Board decisions to be unanimous, Minn. Stat. § 638.02, subd. 1, was upheld in Shefa v. Ellison, 968 N.W.2d 818 (Minn. 2022). The Court overruled a decision by the lower court holding the scheme unconstitutional for failing to give weight to the independent role of the governor “in conjunction with” the board on which he sits. See No.: 62-CV-20-4090, 2d Dist. April 20, 2021.
  3. The 2023 law reversed an action taken in 1992 to repeal language in Minn. Stat. § 638.02 providing for “sealing” of records after pardon. See Minn. Stat. § 638.02 (historical and statutory notes); 1992 Minn. Sess. Law Serv. Ch. 569 (H.F. 2181).
  4. Prior to the 2023 reforms, the procedure for screening applications seemed designed to discourage applicants. For example, application forms could be obtained only after eligibility requirements had been reviewed and approved by the commissioner of corrections.  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 were sent only to those deemed eligible by the Secretary.  See 2011 Annual Report.  (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”).  Applications the Secretary deemed “undeserving” on the merits could also be excluded from consideration by the Board. Minn. R. 6600.0500.
  5. 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 831 N.W.2d 276 (Minn. 2013).

  6. 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.”  See City of Saint Paul Resolution.  

    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.

  7. 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 Council, Resolution 2006R-642. 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.