State of Minnesota, Respondent, vs. Richard Leroy Pflepsen, Appellant.

State of Minnesota, Respondent, vs. Richard Leroy Pflepsen, Appellant. A04-2085, Court of Appeals Unpublished, August 9, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2085

 

State of Minnesota,

Respondent,

 

vs.

 

Richard Leroy Pflepsen,

Appellant.

 

Filed August 9, 2005

Affirmed

Randall, Judge

 

Hennepin County District Court

File No. 82900099

 

Mike Hatch, Attorney General, Steven M. Gunn, Assistant Attorney General, 1400 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Amy Klobuchar, Hennepin County Attorney, William T. Richardson, Assistant County Attorney, 2100-C Government Center, Minneapolis, MN 55487; and

 

Mark Allen Horton, City of Bloomington, 1800 West Old Shakopee Road, Bloomington, MN 55431-3027 (for respondent)

 

Richard Leroy Pflepsen, 1904 Sapphire Point, Eagan, MN 55122 (pro se appellant)

 

            Considered and decided by Randall, Presiding Judge; Lansing, Judge; and Forsberg, Judge.*

 

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            Pro se appellant Richard Pflepsen contends that the district court erred in denying his motion to modify an expungement order, claiming (1) the court should have exercised its inherent authority to order the Minnesota Board of Chiropractic Examiners (the board) to seal its records; (2) his civil rights were violated under the Minnesota Constitution's provision for ex post facto laws; and (3) the board subjected appellant to double jeopardy when it revoked appellant's chiropractic license.  We affirm on all issues.

FACTS

 

            In June 2004, appellant filed a petition in the district court for expungement of a controlled-substance offense from 1982.  The Minnesota Attorney General's Office waived its appearance and took no position on the expungement.  The Hennepin County Attorney's Office waived its appearance but objected to the expungement.  The Bloomington City Attorney's Office waived its appearance and did not oppose the expungement. 

            In August 2004, the district court granted appellant's expungement request and ordered the following agencies to seal all records related to appellant's 1982 controlled-substance offense:  (1) the Hennepin County District Court, Department of Community Corrections, and Sheriff, (2) the Bloomington Police and City Attorney, (3) the Minnesota Bureau of Criminal Apprehension, and (4) the Minnesota Attorney General.  The district court indicated that the Minnesota Board of Chiropractic Examiners (the
board) was to be provided with a copy of the order, but stated that the board was not required to take any specific action and that the order was for the board's information only.           

            Appellant later filed a motion to modify the expungement order.  The district court summarized appellant's motion as follows.

[Appellant] now brings this ex parte motion to modify the expungement on the basis that this expungement was in violation of the Double Jeopardy Clause because it was not sealed in 1983, that the statute under which he was charged did not refer to the expungement statute § 609A, and that the court should order the Minnesota Chiropractic Board to seal all its records since 1983 regarding [appellant] and this case.

 

The district court filed an order in October 2004, denying appellant's motion to modify the expungement.  This appeal followed.

            The attorney general filed a statement of the case on behalf of the board, explaining that appellant "litigates the question of whether the [board] should have been ordered to expunge their records in the August 2004 order."  The attorney general stated:

            In 1982, appellant's license to practice chiropractic was revoked.[1]  He apparently believes that an expungement of his criminal records in 2004 means that he can ask the respondent to reinstate his license after 22 years.  This is not a proper action to obtain that result.  The respondent was not a party to the expungement petition(s) . . . .  An order to expunge criminal records directed to respondent is not appropriate since the respondent was never a party to the proceeding below.  Such an order in no event would be appropriate.  Further, appellant "appealed" the 1982 revocation of his chiropractic license in 1995.  [The district court] dismissed this challenge with prejudice . . . .  Appellant did not appeal [the district court's] order in 1995 or at any other time.

 

            In his informal brief to this court, appellant contends that (1) the board is an executive-branch agency, and the district court had jurisdiction to use the court's inherent authority to order the board to seal its records; (2) his civil rights were violated under the Minnesota Constitution's provision for ex post facto laws; and (3) the board subjected appellant to double jeopardy when it used information from a 1977 drug offense and the 1982 drug offense to revoke his chiropractic license. 

            The attorney general, acting on behalf of the board in this appeal, declined to file a brief, listing the following reasons.  First, the board was not a party to the litigation leading to the August 2004 expungement order and the district court did not order the board to take any action.  Second, it is unclear why appellant served the board with a copy of his appeal papers and it does not appear as though appellant served the Hennepin County Attorney.  Third, appellant failed to take action after the board informed appellant that he could request the board to place an addendum in his file indicating that his 1982 charge was dismissed.  Fourth, while the relief sought by appellant is unclear, appellant is not seeking any order which would affect the board, as the board was not a litigant in the case. 

            In March 2005, appellant filed a motion to clarify the scope of review captioned "Executive Branch Agencies Includes Chiropractic Board."  In this motion, appellant asserted that the district court should have ordered the board to seal its records of the 1982 offense because all executive agencies share the same interest and "all appealing and non-appealing executive agencies should be involved."  Appellant also repeated his double-jeopardy argument.  The attorney general responded by letter, stating that appellant's

motion is inappropriate since the issue of adding the expungement appeal to include the sealing of the records of the [board] was never raised below in the district court.  Further, the interests of the [board] are separate and different from the interests of the . . . Minnesota Department of Public Safety in maintaining records and being able to utilize such records related to the conduct of its licensees in the past.  Finally, the [board] was not a party to the district court action below.

 

The attorney general went on to state that if appellant has a claim, that claim should be made in the district court first to allow a district court judge to determine the facts. 

D E C I S I O N

I.

            A district court may order expungement of a petitioner's criminal records pursuant to either statutory authority or the court's inherent authority to expunge such records.  State v. Ambaye, 616 N.W.2d 256, 256 (Minn. 2000).  A district court has inherent authority to expunge criminal records in two situations.  First, "where the petitioner's constitutional rights may be seriously infringed by retention of his records."  Id.at 258 (quoting In re R.L.F., 256 N.W.2d 803, 807-08 (Minn. 1977)).  Second, where a petitioner's constitutional rights are not involved, "the court must decide whether expungement will yield a benefit to the petitioner commensurate with the disadvantages to the public from the elimination of the record and the burden on the court in issuing, enforcing and monitoring an expungement order."  Id.(quoting State v. C.A., 304 N.W.2d 353, 358 (Minn. 1981)). 

            Here, the district court granted appellant's expungement motion based on the court's statutory authority as set forth in Minn. Stat. §§ 609 A. 01 - .03 (2004) (setting forth grounds and procedures for expungement of criminal records).  The district court noted that appellant successfully completed probation and that his 1982 controlled-substance charge was dismissed in July 1984, pursuant to Minn. Stat. § 152.18 (1982) (setting forth procedures for dismissal of certain controlled-substance offenses). 

            Appellant now argues that the district court erred in denying appellant's motion for modification because the court failed to exercise its inherent authority to order the board to expunge its records.  Appellant contends that "all executive branch agencies share identical interests" and because the board is an executive agency, "the court had jurisdiction to order the [board] through inherent authority" to seal its records.  For support, appellant cites State v. P.A.D., 436 N.W.2d 808, 810-11 (Minn. App. 1989) (stating that "[t]he court, to fashion a meaningful remedy for [petitioner], is empowered to order the expungement of all records held by the BCA which are now available to the public"), review denied (Minn. March 12, 1989).. 

            In denying appellant's motion for modification, the district court relied upon State v. Schultz, 676 N.W.2d 337, 345 (Minn. App. 2004), for the proposition that the court has limited jurisdiction over executive branch agencies in terms of what it can order them to seal and held that the court does not have jurisdiction to order the board to seal its
records.  The Schultz court recognized P.A.D., but stated that "[t]o the extent that P.A.D. appears to condone judicial intrusion, without constitutional implications, into the affairs of other branches of government, it must be read cautiously [and] construed narrowly . . . ."  Schultz, 676 N.W.2d at 343. 

            As discussed, appellant has failed to show that his constitutional rights were infringed on.  As in Schultz, we limit our analysis to the inherent power of the court to grant expungement in the absence of constitutional concerns.  See id. at 341.  "The exercise of a court's inherent power to expunge is a matter of equity, and we therefore review the district court's conclusion under an abuse of discretion standard."  Id.  The Schultz court concluded that "the important separation-of-powers issues implicated in expungement questions and the public policy concerns presented in those questions" compelled the decision that "the district court in this case overstepped its authority by ordering the executive branch to seal non-judicial records."  Id.at 343-44.  Based on these same issues and concerns, we cannot say that the district court abused its discretion here by choosing not to exercise its inherent authority and declining to order the board to expunge its records. 

II.

            Appellant contends that his civil rights were violated under the Minnesota Constitution's prohibition against ex post facto laws when the district court denied appellant's motion to modify the expungement order.  The Minnesota Constitution provides that "[n]o bill of attainder, ex post facto law, or any law impairing the obligation of contracts shall be passed, and no conviction shall work corruption of blood or forfeiture of estate."  Minn. Const. art. I, § 11.  An ex post facto law "renders an act punishable in a manner in which it was not punishable when it was committed."  Starkweather v. Blair, 245 Minn. 371, 386, 71 N.W.2d 869, 879 (1955).  To constitute an ex post facto law, a statute must "(1) punish as a crime an act which was innocent when committed; (2) increase the burden of punishment for a crime after its commission; or (3) deprive one charged with a crime of a defense that was available when it was committed."  State v. Manning, 532 N.W.2d 244, 247 (Minn. App. 1995), review denied (Minn. July 20, 1995). 

            Appellant argues that the district court violated the prohibition against ex post facto laws by applying the 2002 versions of Minn. Stat. §§ 152.18 (setting forth procedures for dismissal of certain controlled-substance offenses) and 609 A. 02 (setting forth grounds and procedures for expungement of criminal records), rather than the 1982 version of Minn. Stat. § 152.18.  Appellant seems to believe that application of Minn. Stat. § 152.18 (1982) would have entitled him to an automatic expungement in 1984.  The district court addressed this issue as follows. 

            While [appellant] is correct that at the time of his charge, Minn. Stat. § 152.18 did not reference Minn. Stat. § 609A, regarding expungements, he is inaccurate that the statute called for an automatic expungement.  Minn. Stat. § 152.18 is a procedure for discharge and dismissal of a case upon completion of certain court requirements without a conviction ever being adjudicated.  [Appellant's] case was discharged and dismissed on July 1, 1984, pursuant to the statute.  The statute did not at the time of the offense call for an automatic expungement.  It stated at the time of [appellant's] charge that upon dismissal the petitioner "[may] apply to the district court in which the trial was had for an order to expunge from all official records, . . . all recordation relating to arrest, indictment or information, trial and dismissal and discharge pursuant to subdivision1."  [Minn. Stat. § 152, subd. 2 (1982).]  However, the statutes remain consistent in that one must apply for an expungement and at no time was it automatic.  Therefore, [appellant's] case was properly ordered sealed on August 3, 2004. 

 

The district court's analysis is sound.  We agree that appellant's civil rights were not violated under the prohibition against ex post facto laws.

III.

            The Fifth Amendment to the United States Constitution provides that "[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb. . . ."  U.S. Const. amend. V.  The Minnesota Constitution provides that "no person shall be put twice in jeopardy of punishment for the same offense. . . ."  Minn. Const. art. I, § 7.  "The Double Jeopardy Clauses of the United States and Minnesota Constitutions prohibit both multiple punishment and successive prosecution."  City of Pine Springs v. Harley Davidson, 555 N.W.2d 749, 750 (Minn. App. 1996) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076 (1969)).            

            Appellant contends that "double jeopardy is brought up from the order and hearing from the [board] when they bring up the 1977 charges and 1982 charges and say convictions and use that information to revoke my chiropractic license."  This issue is not properly before us on appeal.  Appellant challenged the board's revocation order in 1995, and the district court dismissed his complaint with prejudice.  Further, the record does not indicate that this is the same double-jeopardy argument raised below.  Appellate
courts generally do not consider matters not raised and argued in the district court.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that appellate courts generally will not consider matters not argued and considered in the district court). 

            Affirmed.

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

[1] Appellant filed a motion to clarify the scope of review on March 1, 2005.  Attached to this motion is a copy of a letter from the board dated September 21, 2004, indicating that the board issued an order revoking appellant's license in 1983.