EXPUNGEMENT

1. EXPUNGEMENT Erasing an eviction case record

2. Expungement: ERASING AN EVICTION CASE RECORD • Effect of eviction case (or “UD”) on rental history • Legal standards for expungement • Discretionary expungement • Mandatory expungement • Common law/inherent authority expungement • Procedure for requesting expungement • Factors affecting the outcome of an expungement motion • Steps after expungement motion granted • Miscellaneous considerations

3. Effect of eviction case on rental history of a tenant • Mere filing of eviction case creates public record • Record remains public regardless of outcome, even if case is dismissed or tenant obtains judgment • At present, eviction case records preserved indefinitely in the Minnesota Court Information System (MNCIS) • Eviction case filings tracked by tenant screening agencies • Local, specialized credit reporting agencies • Eviction case records can be reported for seven years • One eviction case in rental history will often lead to denial of rental application • If application is approved, eviction case in rental history may lead to double damage deposit, rent premium, month-to-month lease instead of term lease, etc.

4. LEGAL STANDARD – DISCRETIONARY EXPUNGEMENT Minn. Stat. § 484.014, subd. 2 The court may order expungement of an eviction case court file only upon motion of a defendant and decision by the court, if the court finds that the plaintiff's case is sufficiently without basis in fact or law, which may include lack of jurisdiction over the case, that expungement is clearly in the interests of justice and those interests are not outweighed by the public's interest in knowing about the record.

5. Legal standard – discretionary expungement • Three-part test for discretionary expungement: • Whether case was sufficiently without basis in fact or law • Whether expungement is in the interests of justice • Whether interests of justice are outweighed by the public’s interests in knowing about the record

6. Legal standard – discretionary expungement • Interpretation and application of test • First part of test – lack of sufficient basis in fact or law – is often determinative of a Motion for Expungement in Hennepin County District Court • Met by showing a jurisdictional, procedural, or substantive defect • May hinge on interpretation and application of law governing claimed defect in the case • No defect in case  expungement unlikely • Dependent on venue – learn as much as possible about the audience for the argument

7. LEGAL STANDARD – MANDATORY EXPUNGEMENT Minn. Stat. § 484.014, subd. 3 The court shall order expungement of an eviction case commenced solely on the grounds provided in section 504B.285, subdivision 1, clause (1), if the court finds that the defendant occupied real property that was subject to contract for deed cancellation or mortgage foreclosure and: (1) the time for contract cancellation or foreclosure redemption has expiredandthe defendant vacated the property prior to commencement of the eviction action; or (2) the defendant was a tenant during the contract cancellation or foreclosure redemption period and did not receive a notice under section 504B.285, subdivision 1a, 1b, or 1c, to vacate on a date prior to commencement of the eviction case.

8. LEGAL STANDARD – INHERENT AUTHORITY • Tests from State v. C.A., 304 N.W.2d 353 (Minn. 1981) • Whether expungement is necessary to the performance of a judicial function • Whether expungementwill yield a benefit to the moving party commensurate with the disadvantages to the public from the elimination of the record and the burden on the court in issuing and enforcing the order

9. LEGAL STANDARD – INHERENT AUTHORITY • Common law inherent authority standard • Derived from interpretation of separation of powers doctrine under state constitution • Exercise of relief under standard is discretionary and equitable – test of fairness under particularized facts and circumstances • State v. M.D.T., 831 N.W.2d 276 (Minn. 2013) • Expungement of criminal records held by the executive branch not necessary to the performance of a unique judicial function

10. PROCEDURE • Motion practice • Concise argument about any defects in the record of the case • Citation to statute, rule, or case that is authoritative or persuasive on claimed defect • Forms available http://povertylaw.homestead.com/ResidentialUnlawfulDetainer.html

11. PROCEDURE • Basic steps and timeline: • Draft Motion and Affidavit to Proceed In Forma Pauperis for verification by the Defendant/tenant • E-File IFP Affidavit and Motion with a Certificate of Representation • Court issues IFP Order and schedules hearing, typically 4-8 weeks after filing of Motion in Hennepin County • Court issues Order on service of Motion and filing of Affidavit(s) of Service • Serve Motion (and any attachments/exhibits) by mail at least 10 days prior to hearing • E-file affidavit of service at least 3 business days before hearing

12. Factors affecting the outcome of an expungement motion • Primary factor favoring expungement • An undisputed or proven jurisdictional, procedural, or substantive defect in the eviction case • Examples of legal issues potentially supporting expungement • Improper service of the Summons and Complaint • Filing of the action by the wrong plaintiff • Landlord’s failure to disclose a street address at least 30 days prior to commencement of the eviction action • Repair and habitability problems • Waiver of claim by acceptance of rent

13. Factors affecting the outcome of an expungement motion • Additional factors favoring expungement • Lapse of time since eviction case was filed(10 years) • Lack of other eviction cases in the tenant’s rental history • Lack of opposition to Motion • Demonstration of actual harm caused by the existence of the record (e.g., multiple denials of applications for housing or credit, double- or triple-rent security deposit, etc.)

14. FACTORS AFFECTING THE OUTCOME OF AN EXPUNGEMENT MOTION • Primary factor weighing against expungement • Lack of undisputed or proven defect in the case • Additional factors weighing against expungement: • Extraordinary nature of relief – elimination of public record • Tendency to consider substance over procedure, e.g.,unpaid rent at the time of the filing of the eviction case • Procedural history • Default judgment against tenant • Judgment against tenant for failure to meet deadline imposed by court • Violation of settlement agreement by tenant • Recency of case • Opposition by the landlord

15. STEPS AFTER MOTION GRANTED • Court will expunge/erase the public record of the case • File purged and MNCIS entry deleted • General timeline is 2-3 weeks after order granting Motion • Tenant must notify local tenant screening agencies to delete references to the case in their records • Letter and copy of expungement order • http://povertylaw.homestead.com/ResidentialUnlawfulDetainer.html

16. List of tenant screening agencies

17. Miscellaneous issues and considerations • Discrepancy in file maintenance and MNCIS record • Paper files for non-judgment cases destroyed after one year, but MNCIS record remains • Can be used to tenant’s advantage – the public has an interest in complete and accurate records • Requesting immediate expungement in cases in which tenant prevails • Defect that leads to dismissal/judgment for tenant is probably a solid basis to argue for expungement • Option to seek judge review if Motion is denied • Good option if issue for review regards interpretation and/or application of the law governing a claimed defect in the case

18. CONTACT INFORMATION Drew P. Schaffer, Managing Attorney Mid-Minnesota Legal Aid 430 First Avenue North, Suite 300 Minneapolis, MN 55401-1780 Electronic Mail: dpschaffer@midmnlegal.org Telephone: 612.746.3644 Facsimile: 612.746.3644 Legal Aid Intake: 612.334.5970