The Importance of Properly Serving the DHS in an Expungement

The Minnesota Department of Human (“DHS”) is notorious for fighting expungements at all costs. Regardless of whether the record involves a conviction or not, the DHS is going to fight. That’s because the due process of criminal law has no place in the DHS review process – meaning, a mere arrest record without a corresponding conviction can be enough to disqualify someone from licensing through DHS. It’s patently absurd. But, that’s the law.

That’s also why the DHS is so eager to object to expungements and will do so even on cases that are not objected to by other state agencies. And the extent the DHS is willing to go in fighting knows no bounds.

Today, the Court of Appeals overruled a district court order that required the DHS to seal juvenile deliquency records. The basis for ruling in favor of DHS? Improper service and a lack of notice on its timing to object. In its ruling, the Court of Appeals found service was sufficient, despite the petition to the DHS being addressed incorrectly. The DHS argued it was never properly served even in the face of controlling case law directly opposite its argument (can anyone say, bad faith?). The Court still ruled in favor of the DHS, though, because the petition notice indicated that the DHS had 60 days to object – which is the standard language in a court form, though this waiting period is not necessary for juvenile petitions – and the district court was, therefore, wrong to order the DHS records sealed after 53 days of no response from the DHS.

Let’s be clear – the DHS had no intention of replying to the petition because it believed it was never properly served. An incorrect legal assessment on its part. But for the Court jumping the gun by a week, those DHS records would be sealed. So, by operation of a technicality, the DHS fought to preserve this record and did so to the point of appealing the ruling – not a cheap avenue of legal recourse.

What’s even more frustrating by this outcome is that there was no discussion regarding the merits of the case. For all we know, this petitioner may have had a rock-solid case to get this expungement. But, if the DHS has an opportunity to fight, it most certainly will do so.

The hard lesson to be learned by this case: be sure you are properly and timely serving every state agency you want subject to the expungement order. And then, double-check your work when it comes time to serving the DHS.