HF 2571

as introduced - 81st Legislature (1999 - 2000) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to criminal records management; providing 
  1.3             standards for the grant of a name change to a 
  1.4             convicted felon or person charged with a felony; 
  1.5             requiring a notice on the marriage license 
  1.6             application; clarifying provisions on the expungement 
  1.7             of certain criminal records; providing a penalty; 
  1.8             amending Minnesota Statutes 1998, sections 259.10, by 
  1.9             adding a subdivision; 259.11; 517.08, subdivision 1a; 
  1.10            and 609A.03; proposing coding for new law in Minnesota 
  1.11            Statutes, chapter 259. 
  1.12  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.13     Section 1.  Minnesota Statutes 1998, section 259.10, is 
  1.14  amended by adding a subdivision to read: 
  1.15     Subd. 3.  [CONVICTED FELON NAME CHANGE.] When a person 
  1.16  applies for a name change, the court must determine whether the 
  1.17  person has been convicted of a felony or currently is charged 
  1.18  with a felony in this or another state.  If the person has such 
  1.19  a conviction history or pending felony charge, a name change may 
  1.20  be granted only: 
  1.21     (1) if failure to allow it would infringe on a 
  1.22  constitutional right of the person; or 
  1.23     (2) upon clear and convincing evidence that it would yield 
  1.24  a benefit to the petitioner commensurate with the disadvantages 
  1.25  to the public and public safety of burdening the court and 
  1.26  public authorities with monitoring the person's prior criminal 
  1.27  history records or probation and reporting requirements, if any, 
  1.28  under a new name. 
  2.1      Sec. 2.  Minnesota Statutes 1998, section 259.11, is 
  2.2   amended to read: 
  2.3      259.11 [ORDER; FILING COPIES.] 
  2.4      (a) Upon meeting the requirements of section 259.10, the 
  2.5   court shall grant the application unless it finds that there is 
  2.6   an intent to defraud or mislead or in the case of the change of 
  2.7   a minor child's name, the court finds that such name change is 
  2.8   not in the best interests of the child.  The court shall set 
  2.9   forth in the order the name and age of the applicant's spouse 
  2.10  and each child of the applicant, if any, and shall state a 
  2.11  description of the lands, if any, in which the applicant and the 
  2.12  spouse and children, if any, claim to have an interest.  The 
  2.13  court administrator shall file such order, and record the same 
  2.14  in the judgment book.  If lands be described therein, a 
  2.15  certified copy of the order shall be filed for record, by the 
  2.16  applicant, with the county recorder of each county wherein any 
  2.17  of the same are situated.  Before doing so the court 
  2.18  administrator shall present the same to the county auditor who 
  2.19  shall enter the change of name in the auditor's official records 
  2.20  and note upon the instrument, over an official signature, the 
  2.21  words "change of name recorded."  Any such order shall not be 
  2.22  filed, nor any certified copy thereof be issued, until the 
  2.23  applicant shall have paid to the county recorder and court 
  2.24  administrator the fee required by law.  No application shall be 
  2.25  denied on the basis of the marital status of the applicant. 
  2.26     (b) When a person applies for who has been convicted of a 
  2.27  felony or who has a pending felony charge in this or another 
  2.28  state is granted a name change, the court shall determine 
  2.29  whether the person has been convicted of a felony in this or any 
  2.30  other state.  If so, the court shall, within ten days after the 
  2.31  name change application is granted, report the name change to 
  2.32  the bureau of criminal apprehension.  The person whose name is 
  2.33  changed shall also report the change to the bureau of criminal 
  2.34  apprehension within ten days.  The court granting the name 
  2.35  change application must explain this reporting duty in its 
  2.36  order.  Any person required to report the person's name change 
  3.1   to the bureau of criminal apprehension who fails to report the 
  3.2   name change as required under this paragraph is guilty of a 
  3.3   gross misdemeanor. 
  3.4      Sec. 3.  [259.115] [PENALTY.] 
  3.5      A person who has been convicted of a felony or who has a 
  3.6   pending felony charge in this state or another state and who, 
  3.7   upon marriage, uses a different surname from that used before 
  3.8   marriage without complying with sections 259.10 and 259.11 is 
  3.9   guilty of a gross misdemeanor. 
  3.10     Sec. 4.  Minnesota Statutes 1998, section 517.08, 
  3.11  subdivision 1a, is amended to read: 
  3.12     Subd. 1a.  [CONTENTS.] Application for a marriage license 
  3.13  shall be made upon a form provided for the purpose and shall 
  3.14  contain the following information: 
  3.15     (1) the full names of the parties and the sex of each 
  3.16  party; 
  3.17     (2) their post office addresses and county and state of 
  3.18  residence; 
  3.19     (3) their full ages; 
  3.20     (4) if either party has previously been married, the 
  3.21  party's married name, and the date, place and court in which the 
  3.22  marriage was dissolved or annulled or the date and place of 
  3.23  death of the former spouse; 
  3.24     (5) if either party is a minor, the name and address of the 
  3.25  minor's parents or guardian; 
  3.26     (6) whether the parties are related to each other, and, if 
  3.27  so, their relationship; 
  3.28     (7) the name and date of birth of any child of which both 
  3.29  parties are parents, born before the making of the application, 
  3.30  unless their parental rights and the parent and child 
  3.31  relationship with respect to the child have been terminated; 
  3.32     (8) address of the bride and groom after the marriage to 
  3.33  which the court administrator shall send a certified copy of the 
  3.34  marriage certificate; and 
  3.35     (9) the full names the parties will have after marriage and 
  3.36  the parties' social security numbers.  The social security 
  4.1   numbers must be collected for the application but must not 
  4.2   appear on the marriage license; and 
  4.3      (10) notice that a party who has been convicted of a felony 
  4.4   or who has a pending felony charge in this or another state may 
  4.5   not use a different surname after marriage except as authorized 
  4.6   by sections 259.10 and 259.11, and that such a party's failure 
  4.7   to comply with those sections is a gross misdemeanor. 
  4.8      Sec. 5.  Minnesota Statutes 1998, section 609A.03, is 
  4.9   amended to read: 
  4.10     609A.03 [PETITION TO EXPUNGE CRIMINAL RECORDS.] 
  4.11     Subdivision 1.  [PETITION; FILING FEE.] An individual who 
  4.12  is the subject of a criminal record who is seeking the 
  4.13  expungement of the record shall file a petition under this 
  4.14  section and pay a filing fee in the amount required under 
  4.15  section 357.021, subdivision 2, clause (1).  The filing fee may 
  4.16  be waived in cases of indigency and shall be waived in the cases 
  4.17  described in section 609A.02, subdivision 3.  
  4.18     Subd. 2.  [CONTENTS OF PETITION.] A petition for 
  4.19  expungement shall be signed under oath by the petitioner and 
  4.20  shall state the following: 
  4.21     (1) the petitioner's full name and all other legal names or 
  4.22  aliases by which the petitioner has been known at any time; 
  4.23     (2) the petitioner's date of birth; 
  4.24     (3) all of the petitioner's addresses from the date of the 
  4.25  offense or alleged offense in connection with which an 
  4.26  expungement order is sought, to the date of the petition; 
  4.27     (4) why expungement is sought, if it is for employment or 
  4.28  licensure purposes, the statutory or other legal authority under 
  4.29  which it is sought, and why it should be granted; 
  4.30     (5) the details of the offense or arrest for which 
  4.31  expungement is sought, including date and jurisdiction of the 
  4.32  occurrence, court file number, and date of conviction or of 
  4.33  dismissal; 
  4.34     (6) in the case of a conviction, what steps the petitioner 
  4.35  has taken since the time of the offense toward personal 
  4.36  rehabilitation, including treatment, work, or other personal 
  5.1   history that demonstrates rehabilitation; 
  5.2      (7) petitioner's criminal conviction record indicating all 
  5.3   convictions for misdemeanors, gross misdemeanors, or felonies in 
  5.4   this state, and for all comparable convictions in any other 
  5.5   state, federal court, or foreign country, whether the 
  5.6   convictions occurred before or after the arrest or conviction 
  5.7   for which expungement is sought; 
  5.8      (8) petitioner's criminal charges record indicating all 
  5.9   prior and pending criminal charges against the petitioner in 
  5.10  this state or another jurisdiction, including all criminal 
  5.11  charges that have been continued for dismissal or stayed for 
  5.12  adjudication, or have been the subject of pretrial diversion; 
  5.13  and 
  5.14     (9) all prior requests by the petitioner, whether for the 
  5.15  present offense or for any other offenses, in this state or any 
  5.16  other state or federal court, for pardon, return of arrest 
  5.17  records, or expungement or sealing of a criminal record, whether 
  5.18  granted or not, and all stays of adjudication or imposition of 
  5.19  sentence involving the petitioner. 
  5.20     Subd. 3.  [SERVICE OF PETITION AND PROPOSED ORDER.] The 
  5.21  petition for expungement and a proposed expungement order shall 
  5.22  be served by mail on the state and local government agencies and 
  5.23  jurisdictions whose records would be affected by the proposed 
  5.24  order.  Service shall also be made by mail on the attorney for 
  5.25  each agency and jurisdiction. 
  5.26     Subd. 4.  [HEARING.] A hearing on the petition shall be 
  5.27  held no sooner than 60 days after service of the petition.  
  5.28     Subd. 5.  [NATURE OF REMEDY; STANDARD; FIREARMS 
  5.29  RESTRICTION.] (a) Except as otherwise provided by paragraph (b), 
  5.30  expungement of a criminal record is an extraordinary remedy to 
  5.31  be granted only upon clear and convincing evidence that it would 
  5.32  yield a benefit to the petitioner commensurate with the 
  5.33  disadvantages to the public and public safety of: 
  5.34     (1) sealing the record; and 
  5.35     (2) burdening the court and public authorities to issue, 
  5.36  enforce, and monitor an expungement order. 
  6.1      (b) Except as otherwise provided by this paragraph, if the 
  6.2   petitioner is petitioning for the sealing of a criminal record 
  6.3   under section 609A.02, subdivision 3, the court shall grant the 
  6.4   petition to seal the record unless the agency or jurisdiction 
  6.5   whose records would be affected establishes by clear and 
  6.6   convincing evidence that the interests of the public and public 
  6.7   safety outweigh the disadvantages to the petitioner of not 
  6.8   sealing the record.  If a petitioner was found not guilty by 
  6.9   reason of mental illness, the court shall grant the petition to 
  6.10  seal the record unless the agency or jurisdiction whose records 
  6.11  would be affected establishes by a preponderance of the evidence 
  6.12  that the interests of the public and public safety outweigh the 
  6.13  disadvantages to the petitioner of not sealing the record.  
  6.14     (c) If the court issues an expungement order it may require 
  6.15  that the criminal record shall be sealed, the existence of the 
  6.16  record shall not be revealed, and the record should not be 
  6.17  opened except as required under subdivision 7.  Records shall 
  6.18  must not be destroyed or returned to the subject of the record.  
  6.19     (d) An order expunging the record of a conviction for a 
  6.20  crime of violence as defined in section 624.712, subdivision 5, 
  6.21  must provide that the person is not entitled to ship, transport, 
  6.22  possess, or receive a firearm until ten years have elapsed since 
  6.23  the order was entered and during that time the person was not 
  6.24  convicted of any other crime of violence.  Any person whose 
  6.25  record of conviction is expunged under this section and who 
  6.26  thereafter receives a relief of disability under United States 
  6.27  Code, title 18, section 925, is not subject to the restriction 
  6.28  in this paragraph.  
  6.29     Subd. 5a.  [ORDER CONCERNING CRIMES OF VIOLENCE.] An order 
  6.30  expunging the record of a conviction for a crime of violence as 
  6.31  defined in section 624.712, subdivision 5, must provide that the 
  6.32  person is not entitled to ship, transport, possess, or receive a 
  6.33  firearm until ten years have elapsed since the order was entered 
  6.34  and during that time the person was not convicted of any other 
  6.35  crime of violence.  Any person whose record of conviction is 
  6.36  expunged under this section and who thereafter receives a relief 
  7.1   of disability under United States Code, title 18, section 925, 
  7.2   is not subject to the restriction in this subdivision. 
  7.3      Subd. 6.  [ORDER CONCERNING CONTROLLED SUBSTANCE OFFENSES.] 
  7.4   If the court orders the sealing of the record of proceedings 
  7.5   under section 152.18, the effect of the order shall be to 
  7.6   restore the person, in the contemplation of the law, to the 
  7.7   status the person occupied before the arrest, indictment, or 
  7.8   information.  The person shall not be held guilty of perjury or 
  7.9   otherwise of giving a false statement if the person fails to 
  7.10  acknowledge the arrest, indictment, information, or trial in 
  7.11  response to any inquiry made for any purpose. 
  7.12     Subd. 7.  [LIMITATIONS OF ORDER.] (a) Upon issuance of an 
  7.13  expungement order related to a charge supported by probable 
  7.14  cause, the DNA samples and DNA records held by the bureau of 
  7.15  criminal apprehension shall not be sealed, returned to the 
  7.16  subject of the record, or destroyed. 
  7.17     (b) Notwithstanding the issuance of an expungement order: 
  7.18     (1) an expunged record may be opened for purposes of a 
  7.19  criminal investigation, prosecution, or sentencing, upon an ex 
  7.20  parte court order; and 
  7.21     (2) an expunged record of a conviction may be opened for 
  7.22  purposes of evaluating a prospective employee in a criminal 
  7.23  justice agency without a court order. 
  7.24     Upon request by law enforcement, prosecution, or 
  7.25  corrections authorities, an agency or jurisdiction subject to an 
  7.26  expungement order shall inform the requester of the existence of 
  7.27  a sealed record and of the right to obtain access to it as 
  7.28  provided by this paragraph.  For purposes of this section, a 
  7.29  "criminal justice agency" means courts or a government agency 
  7.30  that performs the administration of criminal justice under 
  7.31  statutory authority.  
  7.32     Subd. 8.  [STAY OF ORDER; APPEAL DISTRIBUTION OF 
  7.33  EXPUNGEMENT ORDERS.] An expungement order shall be automatically 
  7.34  stayed for 60 days after filing of the order and, if the order 
  7.35  is appealed, during the appeal period.  A person or an agency or 
  7.36  jurisdiction whose records would be affected by the order may 
  8.1   appeal the order within 60 days of service of notice of filing 
  8.2   of the order.  An agency or jurisdiction or officials or 
  8.3   employees thereof need not file a cost bond or supersedeas bond 
  8.4   in order to further stay the proceedings or file an appeal. The 
  8.5   court administrator shall send a copy of an expungement order to 
  8.6   each agency and jurisdiction whose records are affected by the 
  8.7   terms of the order. 
  8.8      Subd. 9.  [DISTRIBUTION OF EXPUNGEMENT ORDERS STAY OF 
  8.9   ORDER; APPEAL.] If an expungement order is issued, the court 
  8.10  administrator shall send a copy of it to each agency and 
  8.11  jurisdiction whose records are affected by the terms of the 
  8.12  order. An expungement order shall be stayed automatically for 60 
  8.13  days after the order is filed and, if the order is appealed, 
  8.14  during the appeal period.  A person or an agency or jurisdiction 
  8.15  whose records would be affected by the order may appeal the 
  8.16  order within 60 days of service of notice of filing of the order.
  8.17  An agency or jurisdiction or its officials or employees need not 
  8.18  file a cost bond or supersedeas bond in order to further stay 
  8.19  the proceedings or file an appeal.