This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Kenneth Lief Haugen,


Filed March 16, 1999


Toussaint, Chief Judge

Concurring specially, Shumaker, Judge

Clearwater County District Court

File No. K8450

Michael A. Hatch, Attorney General, Sean McCarthy, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 and

Kip Fontaine, Clearwater County Attorney, Clearwater County Courthouse, P.O. Box 757, Bagley, MN 56621 (for respondent)

Thomas S. Kuesel, Baer, Wallner & Anderson, 514 American Avenue, Bemidji, MN 56619-0880 (for appellant)

Considered and decided by Toussaint, Chief Judge, Shumaker, Judge, and Foley, Judge.[*]


TOUSSAINT, Chief Judge

Appellant Kenneth Haugen challenges the district court's denial of his petition for expungement of his conviction of third-degree criminal sexual conduct. Because the district court did not abuse its discretion in weighing legitimate factors in denying Haugen's motion, we affirm.


We review the district court's decision to deny expungement under an abuse of discretion standard. State v. M.B.M., 518 N.W.2d 880, 883 (Minn. App. 1994).

A district court has the inherent authority to control the performance of judicial functions, which extends to the issuance of expungement orders affecting court records and agents of the court. State v. C.A., 304 N.W.2d 353, 358 (Minn. 1981). Where, as here, a constitutional right is not involved, the district court must determine whether the benefit of an expungement to the petitioner is commensurate with (1) the harm to the public caused by eliminating the record; and (2) the administrative burden on the court in issuing, enforcing, and monitoring the order. Id. Expungement is an extraordinary form of relief, Barlow v. Commissioner of Pub. Safety, 365 N.W.2d 232, 233 (Minn. 1985), and courts must exercise their authority with caution so as to respect the executive and legislative branches over their constitutionally authorized functions, C.A., 304 N.W.2d at 358-59.

In denying Haugen's petition, the district court concluded that the benefit to Haugen's employment opportunities that would result from expungement of his record is not commensurate with the disadvantages to the public from the elimination of his record or with the administrative burden on the court.

Haugen contends that because the public is disadvantaged and the court is burdened in all expungement cases, these two factors should not be considered in the balancing test. To the contrary, the fact that these burdens are present in every expungement case is more, not less, of a reason to require their consideration. The supreme court has explicitly cited both as factors to be balanced with the benefit of expungement to the petitioner, C.A., 304 N.W.2d at 358, and they were properly considered here by the district court.

Haugen also argues that expungement of his record is necessary to effectuate the relief granted to him on October 23, 1997, by his pardon extraordinary. Without expungement, Haugen argues, his pardon is "hollow" because he will forever be "haunted by the record of his conviction."

The legislature is specific in directing that one copy of a pardon order be included in the court file and another be sent to the Bureau of Criminal Apprehension. Minn. Stat. § 638.02, subd. 3 (1998). Comparing this version of the statute with its earlier version, where courts were directed to seal all records upon receipt of a pardon order, we conclude that the legislature intended by its amendment that pardons would not necessarily entitle recipients to the sealing and/or expungement of their criminal records. See Minn. Stat. § 638.02, subd. 3 (1990) (requiring that upon a court's receipt of a pardon order, "all records pertinent to the conviction [shall be] sealed") (emphasis added). Haugen's receipt of a pardon extraordinary cannot in itself substitute for the balancing test the supreme court instructed district courts to perform in expungement decisions.

Because the district court did not abuse its discretion in balancing legitimate factors, we affirm the denial of Haugen's petition for expungement.


SHUMAKER, Judge (concurring specially)

Because the district court has very broad discretion in expunction motions that do not implicate constitutional rights, I concur in the result reached by the majority. I do so reluctantly, however, because I believe that the denial of the motion results in the de facto evisceration of appellant's pardon extraordinary.

The essence of the pardon is that it reaches backward and removes the taint of the criminal conviction. By law, the pardon nullifies the conviction, purges appellant of it, and expressly permits appellant to refrain from disclosing the conviction except for very limited purposes. Minn. Stat. § 638.02, subd. 2(2) (1998). The law affords this extraordinary relief only after the convicted individual affirmatively demonstrates that he has satisfied all conditions of his sentence and is now "of good character and reputation." Minn. Stat. § 638.02, subd. 2 (1998). Once the board of pardons files a copy of the pardon with the district court of the county of conviction, that "court shall order the conviction set aside." Minn. Stat. § 638.02, subd. 3 (1998).

Despite the pardon and the order setting aside the conviction, without a sealing of the public record two significant consequences of the original crime remain. First, the taint of the conviction continues because any member of the public can readily obtain the pardoned individual's prior criminal record. Second, the pardoned individual is presented with a lamentable dilemma. On the one hand, he can deny his prior conviction as the pardon and the laws entitle him to do, but anyone who checks his record will likely conclude that he lied. Now he is both a criminal and a currently dishonest person. On the other hand, he can admit the conviction and thus forego one of the principal benefits of the pardon, namely, nondisclosure.

I appreciate the fact that the pardoned individual can represent that, even though he once committed a crime, he has been fully rehabilitated, as evidenced by the pardon extraordinary. That does not, however, seem quite to satisfy the privileges of purgation and nondisclosure that the law ostensibly provides to the pardoned individual. Without a sealing of the record from public access the lofty words of the pardon have little substance and even less practical effect.

[*] Retired judge of the Minnesota Court of Appeals, serving by apointment pursuant to Minn. Const. art. VI, § 10.