This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).








State of Minnesota,









Filed September 25, 2007


Toussaint, Chief Judge

Dissenting, Klaphake, Judge


Hennepin County District Court

File No. 92016112


Michael O. Freeman, Hennepin County Attorney, William T. Richardson, Linda M. Freyer, Assistant County Attorneys, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487; and


Peter A. MacMillan, MacMillan & Wallace, 9955 59th Avenue North, Suite 125, Minneapolis, MN 55422; and


Lori Swanson, Attorney General, Paul R. Kempainen, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)


Kim M. Ruckdaschel-Haley, Lindquist & Vennum P.L.L.P., 4200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)


            Considered and decided by Klaphake, Presiding Judge; Toussaint, Chief Judge; and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

This appeal challenges an order denying in part appellant S.L.H.’s petition to expunge all records relating to her 1992 conviction of fifth-degree controlled substance offense.  Because the district court did not err in its conclusion that, absent a constitutional violation, it lacked inherent authority to expunge criminal records housed in the executive branch, we affirm.


A court may expunge judicial criminal records when it is authorized to do so by statute or when it has inherent authority.[1]  State v. Ambaye, 616 N.W.2d 256, 257 (Minn. 2000).  Absent statutory authorization, a district court has inherent authority to expunge criminal records when the petitioner’s constitutional rights may be seriously infringed if expungement is not ordered or when the benefit of expungement to the petitioner is commensurate with the disadvantage to the public and the burden on the court.  Id. at 258.  Here, the district court granted expungement of appellant’s judicial records after weighing the interests; that ruling has not been appealed.

But criminal records maintained by the executive branch, or non-judicial criminal records, implicate the separation of powers doctrine and require scrutiny beyond a balancing of interests.  Appellant challenges the district court’s denial of expungement of her non-judicial records.  Because the district court’s determination that courts have limited inherent authority to expunge non-judicial records is a question of law, this court’s review is de novo.  State v. T.M.B., 590 N.W.2d 809, 811 (Minn. App. 1999) (citing Hibbing Educ. Ass’n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985)), review denied (Minn. June 16, 1999). 

Appellant argues that expungement is a unique judicial function and that a court may expunge non-judicial records when expungement is necessary to fashion a meaningful remedy.  The judiciary’s inherent authority to fashion remedies, however, is not without restriction.  State v. C.A., 304 N.W.2d 353, 358 (Minn. 1981) (stating that in “cases to which our statutory scheme does not extend, the court’s inherent power is limited to instances where the petitioner’s constitutional rights may be seriously infringed by retention of his records”).  Inherent authority derives from the separation of powers doctrine and the “concomitant need for judicial self-preservation.”  T.M.B., 590 N.W.2d at 811.  But inherent authority may not be used to extend the jurisdiction of the court.  Id.  Indeed, the court may not intrude upon the functions of the other two branches of government unless it is essential to preserve its functions as a court.  Id. at 812.  “The function of preparing and maintaining criminal records is a unique constitutional function of the executive branch.”  Id. at 812 (emphasis added).  It follows that a court’s inherent authority to expunge non-judicial records extends to executive branch records only when executive agents abuse their discretion or otherwise infringe on a petitioner’s constitutional rights.  Id. at 812-13.  T.M.B.’s holding has been repeatedly relied on.  See, e.g., State v. L.W.J., 717 N.W.2d 451, 456 (Minn. App. 2006); State v. H.A., 716 N.W.2d 360, 366 (Minn. App. 2006); State v. A.C.H., 710 N.W.2d 587, 591 (Minn. App. 2006); State v. Schultz, 676 N.W.2d 337, 343 (Minn. App. 2004).

Appellant also contends that C.A.authorizes expungement of her non-judicial records.  C.A. discusses, in dictum, whether, under certain circumstances, officials of the executive branch may be considered officers of the court and therefore “within the reach of the court’s inherent power to control its internal processes,” but affirms the district court’s denial of expungement on technical grounds.[2]  C.A., 304 N.W.2d at 360-61.  Therefore, not controlling on appellant’s issue.

A court may not expunge non-judicial records held by those in the executive branch when expungement is not essential to protect a unique judicial function.  T.M.B., 590 N.W.2d at 812.  Appellant argues that we should reject T.M.B.’s limitation on the court’s inherent authority.  The “task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court.”  Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987), review denied (Minn. Dec. 18, 1987).

In denying expungement of appellant’s non-judicial records, the district court concluded that appellant’s constitutional rights were not infringed.[3]  Appellant argues that denying expungement violates her right to due process and constitutes cruel and unusual punishment.  We review de novo whether the district court erred in its determination regarding appellant’s alleged constitutional violations.  State v. Sewell, 595 N.W.2d 207, 211 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999).

Appellant’s due process claim alleges that she should have the benefit of Minn. Stat. § 609.166 (1994), which would have set aside her conviction.  But that statute was repealed in 1996 and superseded by Minn. Stat. §§ 609A.01-.03 (1996) (applying to all petitions for expungement on or after April 3, 1996).  1996 Minn. Laws ch. 408, art. 9, § 10.  Appellant’s petitions were filed in 2000 and 2006.  Accordingly, appellant has not shown a due process violation.

Appellant’s argument that maintenance of her non-judicial records is cruel and unusual punishment similarly lacks merit.  “Ordinarily, cruel and unusual punishment relates to something that involves mental or physical agony, or a sentence of such duration that it is out of all proportion to the nature of the crime.  State v. Anderson, 280 Minn. 461, 462-63, 159 N.W.2d 892, 894 (1968).  Maintenance of criminal records is not a punishment; rather it is a collateral consequence, civil and regulatory in nature, imposed to protect the public.  See Kaiser v. State, 641 N.W.2d 900, 904 (Minn. 2002) (holding that sex offender registration is not a punitive consequence).  Therefore, appellant has failed to show cruel and unusual punishment.  See State v. Pedersen, 679 N.W.2d 368, 378 (Minn. App. 2004) (stating that defendant bears burden of showing that punishment is cruel or unusual), review denied (Minn. Aug. 17, 2004). 

The trial court correctly concluded that, absent a constitutional violation, it had no authority to expunge the non-judicial records and that appellant has not shown a violation of her constitutional rights.


KLAPHAKE, Judge (dissenting)

            I respectfully dissent.  The district court has the inherent authority to order the expungement of criminal records.  State v. Ambaye, 616 N.W.2d 256, 257 (Minn. 2000).  Respondents here have not challenged that authority; rather, they challenge the authority of the district court to order expungement of so-called non-judicial records held by executive branch agencies.  There is no question that the court’s authority to expunge is limited to matters arising out of its “unique judicial functions.”  State v. C.A., 304 N.W.2d 353, 358 (Minn. 1981).  Thus, the court may lack the authority to order the expungement of records generated by executive branch agencies, such as arrest records or investigative data.  See In re Quinn, 517 N.W.2d 895, 900 (Minn. 1994) (stating that judiciary may not interfere with the executive branch’s record-keeping function).

            But the record of an individual’s conviction is a product of a unique judicial function:  a conviction, whether after trial or following a guilty plea, is a legal judgment strictly within the purview of the judiciary.  Equally, the judiciary is the source of the record of a conviction.  If a court, in its inherent authority, decides to expunge or seal the record of a conviction, that authority must extend to records of conviction at the agencies to which the court has provided this information; otherwise, the court’s power to expunge is meaningless.  I therefore disagree with the majority’s decision to affirm the district court’s denial of expungement of appellant’s conviction records.


[1] Minnesota’s expungement statute does not authorize expungement of appellant’s non-judicial criminal records.  Minn. Stat. § 609A.02, subd. 3 (2006).

[2] In petitioning for expungement of criminal records, C.A. failed to specify the records and documents to be expunged and the person to be served with the court order.  C.A., 304 N.W.2d at 360.


[3] Appellant does not allege that any executive official abused its discretion in maintaining her records.