In re Petition of Mario Perito II for Expungement of Record

Summary

This document is a dissenting opinion concerning whether res judicata barred Mario Perito II from seeking expungement of his criminal record under a statute enacted after his earlier petition was denied. The dissent argues that the earlier denial was not a final adjudication on the merits, that the statutory expungement claim was distinct from the earlier equitable claim, and that Perito was entitled to a statutory good-cause hearing.

Holdings

1. In Justice Wooton's view, the 1997 petition was denied because the circuit court believed it lacked statutory authority and refused to exercise or determine its inherent authority, so the denial was not a final adjudication on the merits.
2. In Justice Wooton's view, the equitable cause of action underlying the 1997 petition was separate and distinct from the statutory cause of action under West Virginia Code section 5-1-16a because the statute created a right to a good-cause hearing that did not previously exist.
3. In Justice Wooton's view, enactment of West Virginia Code section 5-1-16a and the passage of twenty-two years could alter the parties' rights and evidence sufficiently to avoid res judicata.

Questions Presented

1. Whether the denial of Perito's 1997 expungement petition constituted a final adjudication on the merits for res judicata purposes.
2. Whether the equitable expungement claim asserted in 1997 was identical to the statutory expungement claim asserted in 2019.
3. Whether West Virginia Code section 5-1-16a created a right to a good-cause hearing that avoided the preclusive effect of the earlier proceeding.
4. Whether the circuit court's statement that Perito could bring his petition again upon discovering legal authority supported an exception to res judicata.