Under W.Va. Code 61-11-25, expungement of a criminal record may be granted if the trial court finds “that there are no current charges or proceedings pending relating to the matter for which expungement is sought.” The issue here is whether “proceeding” includes an administrative grievance proceeding.
Jeremy Dale Humphrey was employed as a corrections officer at the Mt. Olive Correctional Complex. Humphrey was charged with battery as a result of an off duty incident where four civilians were pepper sprayed from a moving car. Initially, the charges were resolved through pretrial diversion, but all charges were later dismissed at the state’s request. Humphrey then filed a motion for expungement under W.Va. Code 61-11-25.
In the meantime, Humphrey was discharged as a result of the pepper spray incident. Humphrey filed a grievance against the Division of Corrections (DOC), which remains pending. The trial court granted an expungement, but DOC then filed a motion asking to have the expungement order set aside because of the ongoing grievance proceedings. The trial court granted DOC’s motion and Humphrey appeals.
Humphrey urges a narrow reading of “proceedings.” In fact, Humphrey argues that DOC does not even have standing to seek or obtain any relief in the context of an expungement request. Only the prosecuting attorney and the arresting agency are parties with a “viable interest” in the issue of whether, or not, criminal records should be expunged. To include employment or other grievance hearings within the scope of “proceedings” would, therefore, defeat the intent of W.Va. Code 61-11-25.
DOC emphasizes the trial court’s discretion in reviewing any request for an expungement under W.Va. Code 61-11-25. Furthermore, the Supreme Court has in other instances recognized that it is appropriate to consider the impact of expungement on other, non criminal proceedings. See, e.g., Mullen v. West Virginia Division of Motor Vehicles, 216 W.Va. 731, 613 S.E.2d 98 (2005). Here, DOC would be unable to meet its burden of proof in the grievance proceeding without the criminal records. DOC has a responsibility to insure that its corrections officers do not “practice acts of gratuitous violence against vulnerable persons.”
This case appears on the Rule 20 docket, signaling that a new syllabus is likely. It is doubtful that the case will have far-reaching implications. However, it will certainly answer the question of whether other, noncriminal proceedings should have any impact on the trial court’s power to order an expungement.