Petition for Writ of Certiorari — Eric Fisher, Petitioner v. Virginia

No. -

>

In The

Supreme Court of the United States

ERIC FISHER,

PETITIONER,

Vv.

COMMONWEALTH OF VIRGINIA,

RESPONDENT.

On Petition for Writ Of Certiorari to the

Supreme Court of Virginia

Petition for Writ of Certiorari

Eric Fisher

1111 Arlington BLVD #810

Arlington, VA 22209

T: (703) 232-5822

pro se Petitioner

QUESTION PRESENTED

To set the scene, ‘never up, never in’ is a golf

expression where if a putt is not struck firmly enough

to make it to the hole, it is impossible for it to go in.

Here, there is no possible conferral of a nonexpungable predicate based on the underlying court

orders-related efforts at issue originally reviewed de

novo by the trial court, and then on appeal, for several

reasons. Further, under Virginia law, there is no

possible way to correct or adjust said underlying

efforts in a manner that could confer nonexpungability. Indeed, Petitioner commends

Virginia’s courts for at no time erroneously

attempting to do so. Petitioner is nevertheless before

this Honorable Court subsequent to a _ tortuous

procedural path that astoundingly still requires

reversal, despite the fact that the foregoing is

dispositive on one of Petitioner’s advanced basis

where there is proper application of Virginia’s rightly

reached controlling authorities towards this case’s full

warrant forms record. Also, interwoven throughout

the courts below is the issue of statutory provisions’

applications infirmity. The proverb “you can lead a

horse to water, but you can’t make it drink” is so here

with orders language that do not actually address

essential pressed such aspects (please note: single

quotes are generally used, unless clarity is at issue).

The question presented is:

Whether two non-convictions are expungable as

‘otherwise dismissed’ per Virginia’s relevant operative

statute or its certain statutory provision applications

are unconstitutional and therefore invalidated?

ii

TABLE OF CONTENTS

QUESTION PRESENTED ...............ccccceceeceeeestees 1

TABLE OF AUTHORITIES ............ cc. ccc eeeeeeeeeees lil

OPINIONS BELOW icssawesnamenncennauncanonasmnennweons 1

JURISDICTION wiiiiwcassicsanwaeunwcesnreneenvsuweuciestenesecsti 1

RELEVANT PROVISIONS INVOLVED ................ 1

STATEMENT

Factual and Procedural History ..............000000+ 1

REASONS FOR GRANTING THE WRIT .............. 3

ARGUMENT

I. EXPUNGABLE NON-CONVICTIONS BASES

Tntroduction .........ccccecceeseeeceseeeeneeeseuveeeeenenes 4

A. DUE PROCESS AND VAGUENESS ......... 5

C. §19.2-392.2(A)(2) UNCONSTITUTIONAL .. 9

CONCLUSION ........ sensswarasamaapocnmenaunecaacmenws svn 21

APPENDICIES savsssisnssnscnasvessuwawssmecesessonammnanys 22

Appendix A — Fisher v. Commonwealth,

No. 230887, Order of the Supreme Court of Virginia

entered on April 10, 2024 (direct appeal) ...... 23/1a

Appendix B — Fisher v. Commonwealth,

No. 515234, Order of the Virginia Court of Appeals

entered on November 6, 2023 (direct appeal) ........ 2a

Appendix C — Fisher v. Commonwealth,

CL23-337, Final Order of the Arlington County

Circuit Court entered on February 24, 2023 (trial) 6a

ill

TABLE OF AUTHORITIES

Cases

Bankers Life & Casualty Co. v. Crenshaw,

A486 U.S. 71 (988) srwencsassesmnannwwanennmsweans 13

Bearden v. Georgia,

A461 U.S. 660 (1988) oo. cee ee eee e enone eee es 15

Bowen v. Gilliard,

483 U.S. 587 (1987) .....ccec eee dee essen eeeneees 16

Bullock v. Carter,

A405 U.S. 184 (1972) oo. eee eee eee eee 13, 15

Cabell v. Chavez-Salido,

454 U_S."432 C932) sasmenemananormemvmmeeees 16

Cleburne v. Cleburne Living Ctr.,

473 U.S. 4382 (1985) ...... cece cece eee eee eee 13

Gregory v. Ashcroft,

501 U.S. 452 (1991) spssssisssicensneaunsasanaccas 13

Griffin v. Illinois,

351 U.S. 12 (1956) 0. eee eee ee eens 15, 18

Harper v. Virginia Board of Elections,

383 U.S. 663 (1966) ...cccccccecseveveccvees 15-16

Hernandez v. Texas,

347 U.S. 475 (1954) sussseccesvasecunsvsewens 15

Kolender v. Lawson,

A461 U.S. 352 (19838) ...ccccscccsscevcevseeseeececs 7

Loving v. Virginia,

388 U.S. 1 (1967) ....ccceccceceeeee eee eee tee teeens 4

Metropolitan Life Insurance Co. v. Ward,

470 U.S. 869 (1985) ...... cece eee eee eee eeeeees 17

Pace v. Alabama,

106 U.S. 583 (1888) ssissssssssansvavnwswsienenes 17

Railway Express Agency v. New York,

336 U.S. 106 (1949) scssscnssenesevenwasvosesees 21

Romer v. Evans,

517 U.S. 620 (1996) 0... cece cee eee eee ees 12-13

lv

Royster Guano Co. v. Virginia,

253 U.S. 412 (1920) .......... eee 138, 18-19

San Antonio Ind. School District v. Rodriguez,

A11 U.S. 1 (1978) 2... eee cee eee ee ceeee 18, 15, 18

Tate v. Short,

401 U.S. 395 (1971) ... ccc cccccesecceeseeees 15, 21

United States v. Virginia,

518 U.S. 515 (1996) sssussscsevevasocsaseensevias 19

Village of Willowbrook v. Olech,

528 U.S. 562 (2000) ......... cece cece neces teres 21

Weinberger v. Wiesenfeld,

420 U.S. 636 (1975) ..... ccc cece cece ee eee 15, 18

Williams v. Illinois,

399 U.S. 235 (1970) ... ccc cece cece ene ees 4,15

Withrow v. Larkin,

421 U.S. 85 (1975) ....ccccceeseeeereeceeenenecees 6

Yick Wo v. Hopkins,

118 U.S. 356 (1886) 00... ccc c ese eee eee eevee ee 17

In re Premier Auto. Servs., Inc.,

492, F.3d 274 (4th Cir. 2007) ......... 5, 12, 18

Williams v. Commonwealth,

885 S.E.2d 457 (Va. 20238) ......cee cece eeeees 20

Russell v. Commonwealth,

No. 822222 (CAV 2024) svssesscavevewesaveessens 9

Constitution

U.S. Const. Amend. XIV, Section 1.... 1, 4-6, 9, 12-21

Statutes

28 U.S.C. § 2201(a) 20... cee ccccececeececeeereeeeeceeeseeeees 2

Va. Code § 8.01-678 sisvisacssisisssuiceansevinesansines ees svecien snes 6

Va. Code § 19.2-298.02 ......ccccccceceeeeeeeeeeeeeeeues 10-11

Va. Code § 19.2-392 (and swbs.) .... 1-3, 6, 9-10, 17, 20

Miscellaneous

50 State [Expungements| Comparison; (Online) ...... 8

One Strike and You're Out; (December 2, 2014) ...... 8

OPINIONS BELOW

The Supreme Court of Virginia refused the

petition for appeal on April 10, 2024, thereby denying

discretionary review of the Court of Appeals of

Virginia’s (CAV) Order last acting on the merits.

JURISDICTION

This Court has jurisdiction under

28U.8.C.§1257(a). Never waived expungements relief

is sought, where state courts of last resort differ as to

eligibility, but damages or fees are not. Tangentially,

Petitioner is thankful for the Court’s AI and similar

awareness, to include use of ‘caution and humility,’ in

the 2023 Year-End Report on the Federal Judiciary.

RELEVANT PROVISIONS INVOLVED

U.S. Constitutional Amendment XIV, Section 1

Virginia Code § 19.2-392.2

STATEMENT

Factual and Procedural History

This is a case where expungements Petitioner,

‘Fisher,’ was not allowed to expunge two (2) violation

of a protective order misdemeanor counts in Circuit

Court (trial court). As established by the record, the

underlying General District Court (GDC) trial date

orders at issue were never validly or unassailably

entered (via required authenticated signature-dated

renditions) in 2020 or otherwise as to any purported

August 27, 2020 efforts. This includes any

encapsulated plea, finding of sufficiency for guilt, etc.

(or equivalents), despite dangling ineffectual or null

unauthenticated checkmarks; nor were they pursuant

to a non-expungable statutory program, or any-otherway, deferral. There were no clerical error misprisons

that were capable of correction. Affirmative

declaration that only true and accurate timely-dated

September 13, 2022 dispositional effective entries

permissibly remain as ‘otherwise dismissed’ is before

this Court or appropriately remanded. A comparable

approach to 28U.S.C.§2201(a) is requested where ‘any

court...may declare the rights and other legal

relations of any interested party seeking such

declaration, whether or not further relief is or could

be sought. Fisher alternatively presents an equal

protection facial challenge bearing a heavy burden to

establish, which is consistent with minimizing a

court’s intervention in these types of controversies

unless warranted by a clear constitutional conflict.

This case is of exceptional importance concerning the

proper application of Virginia’s expungement statute,

both because of its particularized facts and

circumstances and more broadly. Virginia courts

apply operative §19.2-392.2 to determine, inter alia,

whether non-conviction dismissed charges are

expungable. Fisher submits that the two charges at

issue qualify for expungement under this statute’s

relevant ‘(A)(2)’ subsection based on the warrants

record and, most of all, the 2020 GDC trial date orders

circumstances. The crux of the problem is whether

this case’s particular fully developed record supports

reversal and remand because the charges are indeed

qualifying as ‘otherwise dismissed’ as opposed to onpoint dismissed in a Commonwealth’s burdensatisfying expungements ineligible requisite manner.

However, even if they do not qualify after a fulsome

account of due process requirements, relevant nonconviction, non-expungable provision applications are

nonetheless facially unconstitutional in this live and

justiciable controversy. Accordingly, Section C.

constitutionally firm statutory language is proposed

for applicable post-ruling legislative adoption.

Fisher’s refused petition for appeal was from the

CAV’s affirmance of the trial court’s expungements

petition final order denial. (Appendices, 1a-6a).

Participation of Counsel before this Court is welcome.

REASONS FOR GRANTING THE WRIT

De novo review or remand on the complete

uncontrovertible warrant court orders record as to

parameters and _ procedural requirements-based

expungements eligibility is one potential approach, if

resolution stops short of reaching an equal protection

analysis, in light of the Constitutional Avoidance

Doctrine. An invitation was even extended to CAV to

inquire: ‘what, if any, statutory or other legal basis

precludes expungements, and can this case be decided

on narrower than constitutional grounds? For all

that, this case is an excellent vehicle to ultimately

address its sufficiently pled two-part question

presented for attendant guidance and clarification.

CAV’s effort fell quite flagrantly short of even an

abstractly meaningful, much less proper, de novo

review, analysis, and order reasoning as to operative

statutory requirements applied towards the historical

warrants record at issue, even assuming arguendo

the relevant §19.2-392.2(A)(2) provision applications

are constitutional. These shortfalls include that the

§19.2-392.2 rubric could not have been ‘strictly’

complied with by the trial court per §19.2-392.2(M),

because this would have necessarily instead resulted

in an ‘otherwise dismissed’ outcome. As _nonconviction expungement ineligibility as a categorical

matter is additionally facially unconstitutional, this

underpinning’s in lockstep with tailored invalidation.

These conflicts and associated wmerit-related

4

declaration(s) demand that this matter be heard, as it

is essential to the effective administration of justice.

There is either disregard for controlling Virginia case

law and misapplication of the statute at issue, or it is

not a properly stated rule of law, up to and including

constitutional infirmity. Following reversal, a variety

of flexible potential resolution paths are offered.

ARGUMENT

I. EXPUNGABLE NON-CONVICTIONS BASES

Introduction

Procedural Due Process Clause requirements of

the 5 Amendment, as applied to states through the

14th, were properly pressed at all stages (such as

below’s “among the determinative issues”), following

its CAV preservation of error discussion and sunilarly

all bound-up in due process-laden “interactive

process” term pled in the trial court. Prior orders

neither focused on this nor equal protection despite

being placed on notice of the challenges, but Fisher

expounded, including addressing also below’s ‘despite

being non-convictions’ divergent such treatment ‘in

Virginia.’ Courts almost invariably properly consider

them together, part and parcel of parallel review

paths, and apply with equal force to states. See also

groundwork-laid germane Loving v. Virginia, 388

U.S. 1 (1967). Further, Williams v. Illinois, 399 U.S.

235 (1970)’s concurrence provides that ‘an analysis

under due process standards...is...more conducive to

judicial restraint than an approach couched in

slogans and ringing phrases. As a result, equal

protection may potentially be considered within a due

process context as “the existence of alternative means

for effectuating the purpose,” in a different way from

Section A’s court orders’ focus. Id. Equal protection is

nonetheless addressed distinctly, to stand on its own.

As the evidentiary record demonstrates, there are

no required underlying GDC warrants’ trial date

authenticated rendition entries nor deferral, thus they

are without any form of non-expungable force and

effect predicate. The GDC file is otherwise silent on

expungements eligibility. It is therefore as a matter

of right upon proper application of the rightly reached

Virginia controlling authorities that the parties cited

in the courts below vis-a-vis this case’s particular

evidentiary record. Reviewable anywhere, wholly

independent of other appellate issues (including any

reaching of assignments of error), is judgment

character for want of Subject Matter Jurisdiction

(SMJ) as to the unequivocal and clear 2020 GDC trial

date activities’ components’ voidness or non-orders

facets, that neither party had the ability to consent

to. A permissible CAV de novo review necessarily

would have established one of these facets. This case

thus turns on either (1) declaration of the foregoing’s

big errors of law flowing from CAV’s short-shrift and

brazenly unsupportable conclusory affirmance, as

also variously illuminated in Section A., infra.; or (2)

Sections B. and C.’s divergently harsh Virginia nonconviction yet non-expungable narrow invalidation

basis juxtaposed with the salient national context.

Beyond a mere good faith basis to pursue this matter,

and in stark contrast to In re Premier Auto. Servs.,

Inc., 492 F.3d 274 (4th Cir.2007) (citing below), this

compelling case is anything but a ‘means to the end of

tying up the [Commonwealth] in endless, fruitless

litigation’ with Petitioner contentions that ‘abound in

legal creativity, [but] generally lack legal merit.’

A. DUE PROCESS AND VAGUENESS

The 14 Amendment prohibits Virginia from

depriving “any person of life, liberty, or property,

without due process of law.” It protects individuals

and safeguards their rights, as any court proceeding

must be fundamentally equitable in view of Withrow

uv. Larkin, 421 U.S. 35 (1975)’s firm concession that “a

fair trial in a fair tribunal is a basic requirement of

due process.” As pled in CAV, “the record fell short of

an §8.01-678 fair trial on the merits and substantial

justice regarding the strictly required to be complied

with (by both the parties’ and the trial court)

application of §19.2-392.2 statutory requirements.”

These and other procedural for want or excess of SMJ

facets violate the Due Process Clause. In actuality,

the record shows a lack of notice and due process for

again the underlying GDC trial date orders to have

neither been (1) validly entered in their entireties, nor

(2) charge-type lawfully deferred (even if the latter

aspect was not already vitiated because of the

former's invalid or unentered warrant forms’

activities components). To add, as the parties could

not have jurisdictionally consented to either, invited

error or approbation and_ reprobation-related

principles are inapposite. Salient voidness or nonorders declaration on the record is appropriate in nonflippantly voild, or at the very most, presto changolike fashions, that can always be heard again

anywhere, whether or not collaterally in the first

instance de novo (i.e., even where appellate

jurisdiction is not exercised). The trial court erred in

concluding the opposite, and CAV was silent on this

point. Proper exercise of due process now indubitably

results in expungements, as the evidentiary record’s

rebuttal of its presumption overcomes its wrongful

denial to date. As there is sufficient ‘otherwise

dismissed’ definiteness, broader vagueness precepts

likewise rest on the Due Process Clause. Having

assumed active jurisdiction over key individual and

state interests, CAV could only find expungability by

once more correctly applying controlling Virginia law

to the full record, apart from Section C.’s rationale.

Inexplicably, it did not. A legislature’s delegation of

authority to judges can be analyzed to determine

whether it is so extensive that it would lead to

arbitrary and erroneous outcomes in a vagueness

context as a due process rights violation. As exactly

this happened, as an augmented consideration from

the balance of the fully developed evidentiary record

that is separately (and far more importantly) also

urged to have the same result, reversal and remand

under either scenario are advanced as a potential

resolution path. This is a facet of the first part of the

two-part question presented, and stops short on this

particular ground of the strong medicine associated

with a ‘void-for-vagueness’ facial challenge, that was

instead lodged in Kolender v. Lawson, 461 U.S. 352

(1983), e.g. Vagueness analysis, whether or not

further delving into invalidity, also implicates civil

statutes, including the permissive and remedial or

rehabilitative one at issue in the case at bar (e.g., see

occasional family and contract law contexts). Any

substantial federal question of unconstitutionality

must be effectively established as a key prudential

objective, as loose-fitting or speculative generalities

do not suffice. No law on its face is per se violative,

and, whatever standard of review is utilized, the

government is afforded an opportunity to show that

the law has a proper purpose and is sufficiently

closely tailored to its achievement before a court’s

determination of whether there is a violation. Here,

the Commonwealth should address the aforesaid as to

Section C, unless waived by conceding irrationality.

B. EXPUNGEMENT POLICY ANALYSIS

In nearly every state, it is recognized as a sound

policy that those who have been charged with an

offense but not convicted are entitled to expungement.

See 50-State Comparison: Expungement, Sealing &

Other Record Relief safeguards edifying resource at

https://ecresourcecenter.org/state-restorationprofiles/50-state-comparisonjudicial-expungementsealing-and-set-aside/. See also, for instance, One

Strike and You're Out, Center For American Progress

(Dietrich/Vallas, 2014) (cleaned up with interjections)

significantly inspired: In our criminal justice system,

individuals may be arrested and released without

charges, while others are charged, but the charges are

later dismissed. Some may participate in post-arrest

diversion programs, or other potentially agreed-upon

tasks, and their charges dismissed. None of these

individuals should be denied access to otherwise

existing opportunities based merely on brief brushes

with the law that do not result in convictions. This is

perhaps especially so when the longitudinal record’s

written orders that the court only speaks through and

control lack a permissible non-expungable predicate.

To force shouldering the burden of a record that all

but guarantees future economic and social hardship

in any dismissal circumstance has a non-speculative

capacity to destroy lives and deprive communities of

economic liberty by carrying up to lifelong barriers

that can block re-entry and participation. Our society

doles out punishment, with collateral consequences

stemming from it, for convictions; however, the logic

underlying that treatment simply falls apart when

rationally applied to the vast numbers of individuals

that both encounter and are caught up in the system,

but are never actually convicted of any crimes at all.

C. §19.2-392.2(A)(2) UNCONSTITUTIONAL

While expungement is not a constitutional right,

a §19.2-392.2(A)(2) certain provision applications

constitutional analysis must be reached on equal

protection grounds if the underlying, never legally

permissibly entered, GDC trial date efforts constitute

an insufficient basis to confer eligibility. Coram non

judice arises at the threshold jurisdictionally because

non-deferral historical record verity is dispositively

beyond reproach as to the (1) vitiation of any form of

required-to-be-effective authenticated signature datecertain rendition entry for one such effort, and (2)

other effort likewise unentered as it is at all times

without signature-dated rendition. As raised below,

these facets are apparent on the warrant faces and do

not require any interpretation, as, reiteratively, GDC

speaks only through valid written orders. Further, “it

does not speak through insinuation, innuendo, or the

parties agreed understanding,” per recently

published Russell v. Commonwealth, No. 822222

(CAV 2024). With this background, where a type of

legislatively deemed non-conviction (as hereafter

referred to) results in a permanent expungement

prohibition, the 14+ Amendment’s Equal Protection

Clause, or ‘Clause, for purposes of this section, is

implicated (again, even if the preceding basis is

wrong). The Clause provides that “no state

shall...deny to any person within its jurisdiction the

equal protection of the laws.” Every reasonable basis

upon which a law could be found constitutional must

be considered, including the fact that there is neither

a mandate for absolute equality nor a prohibition

from all forms of discrimination. Any construction

must be adopted that bears a rational relation to an

even imperfect or tenuous, but still legitimate, end.

10

Statutes are therefore cloaked in a presumption of

constitutionality, and weak congruence comparisons

or even-handed limitations do not properly invalidate

even those that may be unwise or undesirable.

Exactly this is accomplished, however, when a state

impermissibly restrictively deems certain nonconvictions expungement-barred in perpetuity, where

doing so is either irrational or disparate impact and

treatment is effectively established. Records-sealing

measures slated for years from now do not even

remotely fill the void given wait periods that extend

well beyond their effective dates, and this protracted,

mere potential eligibility, partially turns on the same

invidiously or arbitrarily discriminatory distinctions.

Compare unequivocally far from equal substitute (1.e.,

variance) of: (1) §19.2-392.8(A)’s “automatic,” or

instantaneous application, versus (2) peculiar to this

class’s (and Fisher’s asserted) §19.2-392.12(1)(a) nonconviction-type’s “seven years” records-sealing wait

period, which is the same for *convictions*, plus

additional burdensome qualification requirements.

Another legislative development front actually

includes the broader non-conviction (and even gutity)

expungable scenarios when applicable under §19.2-

298.02, but this treatment remains inescapably

foreclosed to this case’s wide-swath pre-2021 class

that is left with Scarlet Letters. This is also why CAV

order p. 3, footnote 4, discussing this prospective 2021

law is not pertinent to a 2020 “Fisher’s charges”

analysis. In sum, key disparities are evident because

of both the (1) initial direct and deliberate effort to

craft ‘otherwise dismissed’ legislation foreclosing

expungements in particular non-conviction scenarios,

and (2) more recent Virginia criminal justice system

reform efforts that again only partially closed the

11

difference in treatment gap. This is so despite the

legislature at all stages having full recognition of the

range of attendant disadvantages flowing from nonexpungability. Indeed, these very real, tangible

adverse impacts, are anything but postulations that

amorphously turn on mathematical niceties’

inferences. More prescriptively, this means that the

same legal sanctions or barriers that were

ameliorated or improved by §19.2-298.02 for some, as

to vital life resources of employment, education,

credit, housing, licensing, health care, safety nets,

etc., persist for the similarly circumstanced pre-2021

class (including where courts have made related

findings of fundamentality, and especially as to

exclusionary policies). As purposeful initial and

subsequent double-down efforts readily establish and

corroborate the legislature’s acknowledgment of a

history or pattern of the group’s disadvantaged

impacts, one is reasonably left confounded by the

persistence of the profoundly uneven class treatment

that is genuine and does not consist of hypothesized,

overbroad generalizations nor was invented during

the course of post hoc litigation. As just one example,

arbitrariness characteristics are at their respective

apogees if guilt (which the legislature has decided

does not rise or fall as a solely-held-out-as-legitimate

distinguishing factor versus innocence to confer

different or arbitrary treatment) remains an

expungement bar, but only when applied to pre-2021

instances. Non-convictions or dismissals treatment

parity could have been realized if unduly burdensome,

non-expungable collateral consequence forms of relief

were extended to all. Instead, expungement is

conferred only to the few, largely picked and chosen

at the whim of a calendar. Well beyond mere actions

12

and inactions second-guessing, including those

dovetailing with other efforts or seeking to place this

Court as a super-legislature, no rational relationship

exists vis-a-vis the class here, and the initial and

subsequent inimical legislative approaches that fell

short of closing the infirm treatment gap. Purposeful

discrimination without a rational relationship is

dispositively made out as any appropriately tailored

sensitivity resoundingly fails to address sufficiently

invidious or arbitrary disproportionate and disparate

impact discriminatory characteristics that are not

even intended to serve it. Besides, the Clause does

not permit validation of discrimination through the

tautological argument that the aim was to do so, but

only towards a microcosm of scenarios making up the

pre-2021 class that could not vindicate their rights

through the political process. See also Romer v.

Evans, 517 U.S. 620 (1996)’s ‘a bare...desire to harm

a politically unpopular group cannot constitute a

legitimate governmental interest,’ in conjunction with

a panoply of inflexible Virginia legislative efforts,

including 2024’s, that were not remotely adequate (viz

outcomes) to allow for the promotion, protection, and

fulfillment of all similarly cireumstanced interests.

Distilling this analysis, to state a colorable equal

protection claim, facts must be alleged showing (1)

suspect or quasi-suspect class membership; (2)

burdened fundamental right(s); or (3) ‘intentionally

treated differently from others similarly situated and

that there is no rational basis for [it].’ In re Premier

Auto. Servs., Inc. The two disparately treated groups

or classes are (1) Virginia (plus the paucity of other

states that have a counterpart certain non-conviction

expungement prohibition statutory provision) and (2)

the vast majority that do not (i.e., comprising all other

13

states). Fisher submits that whether the former ‘(1)’

constitutes a cognizably targeted suspect/quastsuspect class or a fundamental right is burdened, at a

minimum, an equal protection violation is established

under the rational-basis review because the pre-2021

group meets the requisite precondition criteria to be

afforded this special judicial protection. ‘Arbitrary

and irrational discrimination violates the [Clause]

under even [the] most deferential standard of review.’

Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71

(1988). A law will fail under the review’s formulation

if “the varying treatment of different groups or

persons is so unrelated to the achievement of any

combination of legitimate purposes that [the Court]

can only conclude that the [legislature’s] actions were

irrational.” Gregory v. Ashcroft, 501 U.S. 452 (1991);

accord, Cleburne v. Cleburne Living Ctr., 473 U.S. 432

(1985) (finding that a government ‘may not rely on a

classification whose relationship to an asserted goal

is so attenuated as to render the distinction arbitrary

or irrational’). This Court is increasingly sensitive to

the means by which the government chooses to act

when quantifiable interests of constitutional

significance are directly affected. There is no

reasonably conceivable state of facts to ‘further a

proper legislative end’ that could justify the

‘altogether illusory’ non-expungable statutory scheme

at issue, and, on account of the means or the how of

these actions, its constitutionality cannot be saved.

Romer; Royster Guano Co. v. Virginia, 253 U.S. 412

(1920). Per Bullock v. Carter, 405 U.S. 134 (1972),

‘some rational basis’ is required to be shown for

‘counseling a more restrained form of review.’ San

Antonio Independent School District v. Rodriguez, 411

U.S. 1 (19738). As canvassed in extensive detail, while

14

fully accounting for the attributes of this most

deferential, relaxed, and tolerant of standards, and

therefore correspondingly low (but not toothless) bar

upon which legislation must pass the paradigm of

judicial restraint, the relevant provision applications

are nevertheless demonstrated as plainly devoid of

any rational basis. Hence, it is unnecessary to delve

into a determination of whether an elevated level of

scrutiny applies by means of a test only reserved for

such cases. However, if rational-basis review is held

to be sustained (ie., determined to pass Clause

muster), accorded suspectness or fundamental

interest impingement status is reviewed under just

such a more exacting judicial scrutiny. Any

fundamental rights and_ liberties explicitly or

implicitly constitutionally protected or suspect lines

are then assessed per this matter’s applicable

pleadings supporting detail. Jf either applies, the

analysis advances with a weighing of the significance

of conflicting interests taking place over a continuum,

with the Court deciding which interest should be

given greater credence under the substantial-rightsimplicated facts and circumstances at hand. If neither

applies, the analysis ceases in favor of Fisher's friend.

As economic and well-entrenched disadvantaged

factors (including stereotypes on grounds that

minimize a group’s financial security or other denialof-a-benefit palpable stigma) apply to those who are

unable to expunge records, this Court has aptly

addressed numerous scenarios that have given rise to

the outlined (1) suspect or quasi-suspect class or (2)

implication of a fundamental right where more rigid

intermediate or strict scrutiny standards of review

are utilized. This case is not premised on a solely

economic activity situation, with a simple instance of

15

a group only injured by a potential lack of funds, but

rather on fair criminal procedure implications when

considered along with broader robust and pervasive

adverse impacts as well. Hernandez v. Texas, 347

U.S. 475 (1954), e.g., illuminates that ‘[non]-static’

factors ‘may be demonstrated by showing the attitude

of the community’ to establish class separateness that

certainly abound here with both readily identifiable

prior arrestees and their well-recognized intertwined

participation challenges, of both a financial nature

and otherwise. See San Antonio Independent School

District, where ‘discrimination on the basis of past

criminality...posed for the Court the specter of forms

of discrimination which it implicitly recognized to

have deep social and legal roots.’ In_ this

distinguishable in certain respects (including more

recently) case, the Court developed a two-part test for

whether wealth-based Clause claims receive elevated

levels of scrutiny if the: (1) classification is based on

indigency and (2) class suffered ‘an absolute

deprivation of a meaningful opportunity to enjoy that

[desired] benefit. Id. See also et seq., Bearden v.

Georgia, 461 U.S. 660 (1983); Bullock; Griffin v.

Illinois, 351 U.S. 12 (1956); Harper v. Virginia Board

of Elections, 383 U.S. 663 (1966); Tate v. Short, 401

U.S. 395 (1971); Weinberger v. Wiesenfeld, 420 U.S.

636 (1975); and Williams, 399 U.S. 235. Most of the

forgoing holdings’ expressly recognize the vitality of

the axiom that discrimination based on wealth is a

suspect classification factor in clearly less rigid ways

than the preceding two-part test that, while headed

in the right direction, is nevertheless wrapped up in

misguided outlher or anomaly absolute deprivation

and outright denial categoricals (i.e., wealth-related

opportunity aspects of even a non-destitute nature

16

are properly combinable with other Clause-implicated

meaningful participation class factor(s)). So too does

the group here experience various annotated and

invariably intertwined disadvantages that adversely

impact vital interests, as in Harper, inter alia,

essential to its warranted class composition.

Although quasi-suspect status, e.g., is a term not

easily susceptible to, nor capable of, a precise

definition but is instead an evolving concept

determined on a case-by-case basis, recognition of an

entirely new form of potential class under the Clause

that might instead be a case of first impression is not

at issue, even as this matter comes to the Court

sounding in a relatively infrequently occurring

expungements capacity by simple happenstance.

As courts have varying interpretations for levels

of scrutiny tests, this case presents a fantastic

opportunity for further related briefing aspects,

including ‘overinclusive or underinclusive’ specificity

analysis, as in Cabell v. Chavez-Salido, 454 U.S. 432

(1982), as well as the potential applicability of the

four primary indicia of suspectness legislation testing

framework for a potential corresponding more than

just a wealth classification middle or higher-tier such

analysis. As with the preceding two-part test

example, opportunities for additional guidance and

clarification flourish when juxtaposing the case law

with more critical examination indicia factors (where

the presence of some of them accords at least quasisuspect status), including a group’s (1) discrete ability

to perform or contribute to society; (2) defining

immutable or distinguishing characteristics; (3)

history of purposeful unequal treatment; and (4)

relegation to a position of political powerlessness.

Bowen v. Gilliard, 483 U.S. 587 (1987); accord as to

17

indicia factors for approximately a handful of this

Court’s jurisprudence for further briefing. The Clause

also provides that no ‘person’ should be deprived of

equal protection. In consequence, an interpretation of

entitlement to its constitutional protections results in

a broad construction that ‘all persons within the

territorial jurisdiction, without regard to any

differences of race, of color, or of nationality, and the

equal protection of the laws is a pledge of the

protection of equal laws.’ Yick Wo v. Hopkins, 118 U.S.

356 (1886). Shortly prior, Pace v. Alabama, 106 U.S.

583 (1883) held that no ‘person or class of persons’

shall be subject to ‘any greater or different

punishment’ than another because ‘the [Clause]

prohibit[s] a state from denying to any person within

its jurisdiction equal protection of the laws.’ Contrary

to equal treatment, certain persons are purposefully

treated differently or arbitrarily, viz the class here,

without valid justification, which is the cornerstone of

a proper claim under the Clause. Pace’s still good law

holding component is therefore rightly augmented

with the evolution of equal protection law to account

for purpose reasonableness. At its core, this case

‘constitutes the very sort of parochial discrimination

that the [Clause] was intended to prevent’ per

Metropolitan Life Insurance Co. v. Ward, 470 U.S. 869

(1985). Even if this Court were to place focus on

whether the §19.2-392.2(A)(2) provision applications

may be apparently benign in given respect(s),

including as to animated classification-related

considerations for one reason or another (as most

legislation does notwithstanding generally permitted

disadvantaged impacts of incidental or practical

necessity), 1t nevertheless was irrational or employed

a suspectness classification for Clause purposes. See

18

Weinberger’s ‘the mere recitation of a_ benign,

compensatory purpose is not an automatic shield

which protects against any inquiry into the actual

purposes underlying a statutory scheme. Griffin

instructs that ‘a law nondiscriminatory on its face

may be grossly discriminatory in its operation’ and it

boils down here to having ‘intentionally singled out’

and unallowably interposing onerous and indeed even

insurmountable burdens without legitimate rational

relation or purpose. In re Premier Auto. Servs., Inc.

Building from the basics, the first step squarely

implicated is to determine whether the challenged

law makes a_ permissible distinction between

similarly situated individuals. In short, this is amply

demonstrated in the immediate case because of (1)

overwhelmingly nationally accessible non-conviction

expungement redress, replete with robust clean slate

initiatives, compared with that of (2) Virginia’s, and

the negligible number of other states’, disqualifying

such treatment. This is so even as Justice Forward

Virginia 2024 Legislative Priorities, while nonauthoritative, recognizes that “people should always

be able to expunge criminal charges they weren't

convicted of.” Next addressed is whether different

treatment under the statute is permitted by the

requisite standard of review. Once again, this

traditional Clause judicial inquiry focuses on the

existence of any proper legislative purpose and

demonstrable ‘fair and substantial relation’ to the

legislation enacted to effectuate it ‘so that all persons

similarly circumstanced shall be treated alike.’

Royster. It requires more than just some relationship,

including one that is fanciful or a ‘theoretical and [an]

unsubstantiated basis’ or with a legitimate or even

laudable goal. San Antonio Independent School

19

District. With no substantiality of state interest(s)

served, much less one enjoying a plausibly purposeful

relation (as a paramount requirement of the equal

protection guarantee), there is no required amplifying

objective in this case. See Royster reiteratively,

where, as here, ‘it is obvious that the ground of

difference upon which the discrimination is rested has

no fair or substantial relation to the proper object

sought to be accomplished by the legislation.’ Simply

put, the threshold showing of purposeful and purely

prejudicial discrimination of an arbitrary or irrational

constellation sufficient to justify this Court’s review is

that Fisher, and similarly situated others, are indeed

singled out and unfairly treated. There is no fairly

debatable valid and legitimate reason (1.e., a suitably

tailored compelling state interest or purpose), or

minimally, a conceivable rational basis relationship,

to resort to treating non-conviction expungement

petitioners differently or arbitrarily in Virginia

because discrimination without the requisite

justification is patently unconstitutional. The Clause

and its normative philosophy play a crucial role in

promoting fairness and equality, and its invocation in

this matter provides the appropriate vehicle to afford

protection from the kind of discrimination upon which

relief is duly sought. Indeed, no even-handed

limitations apply per either the (1) rational-basis test

or (2) less-likely-to-be-reached elevated level of

scrutiny test. The Commonwealth has the burden to

demonstrate an ‘exceedingly persuasive justification’

within an equal protection analysis context for the

government’s discriminatory acts or omissions, and it

cannot (whether permissibly rationally or by virtue of

withstood scrutiny) as per the totality of the instant

case. United States v. Virginia, 518 U.S. 515 (1996).

20

The counterbalancing equal protection violation

remedy providing the applicable check is generally

limited to invalidation. If this case is decided solely

on this basis, any expungements outcome would be

held in abeyance pending future legislative action.

Towards this end, affirmative declaration of nonseverable $19.2-392.2(A)(2) ‘or the charge is otherwise

dismissed’ non-conviction forever non-expungable

provision applications as unconstitutional in all of

their invidious or arbitrary characteristics must, to

this extent, succeed under the Clause. Once formally

struck down, the Virginia General Assembly, among

the very few other states applicably on notice of its

holding, are all then afforded the opportunity to fix

their respective statutory disparities. This includes

incorporating appropriate, clear, measured, fair, and

reasonable adjusted language. In order to fit within

the required equal protection jurisprudential national

comparison tiers of scrutiny, “if the charge was

dismissed, the court shall enter an order expunging

the record of such a criminal case” is proposed to

advance the rehabilitative remedy at issue, while

fully comporting with Williams v. Commonwealth,

885 S.E.2d 457 (Va. 2023)’s forward-looking (and far

more nationally consistent) concurrence where

“otherwise dismissed’ means...was not convicted.” In

this way, no constitutional straitjackets inure

preventing any governmental body or otherwise from

dealing with the subject at hand once it is clear that

all forms of dismissal resolutions are eligible for

expungement. This stands for the proposition that,

with no surviving legitimate governmental interest or

viable purpose relational nexus to allow redress for

only some non-conviction expungement petitioners

but to still unallowably deny this permissive remedy

21

to certain others, all of the similarly situated

everywhere across the country would finally vindicate

their salutary doctrinal equal protection rights. Due

process and equal protection-interwoven Railway

Express Agency v. New York, 336 U.S. 106 (1949)

‘affords an illustration’ on all fours here, where ‘courts

can take no better measure to assure that laws will be

just than to require that laws be equal in operation.’

Briefly, an as-applied challenge mechanism

coupled with expungements declaratory relief is yet

another distinct resolution path, particularly given

the intensive case-specific due process evidentiary

considerations if it alternatively pleases the Court to

stop short of invalidation as in Tate and its progeny.

Countenancing Village of Willowbrook v. Olech, 528

U.S. 562 (2000)’s recognition of an individual’s cause

of action, instead of that of a class, the familiar initial

analysis blooms of ‘intentionally treated differently

from others similarly situated and that there is no

rational basis for such treatment.’ True to this case,

the foregoing preceded what this Court went on to

hold that: “the Clause secures every person within a

[s]tate’s jurisdiction against intentional and arbitrary

discrimination, whether occasioned by a statute’s

express terms or by its improper execution.” Id.

CONCLUSION

This Court should grant certiorari.

Respectfully submitted.

Eric G. Fisher

1111 Arlington BLVD #810

Arlington, VA 22209

T: (703) 232-5822

APRIL 2024 pro se Petitioner

22

APPENDICIES

(TABLE OF CONTENTS)

Appendix A — Fisher v. Commonwealth,

No. 230887, Order of the Supreme Court of Virginia

entered on April 10, 2024 (direct appeal) ...... 23/1la

Appendix B - Fisher v. Commonwealth,

No. 515234, Order of the Virginia Court of Appeals

entered on November 6, 2023 (direct appeal) ........ 2a

Appendix C — Fisher v. Commonwealth,

CL23-337, Final Order of the Arlington County

Circuit Court entered on February 24, 2023 (trial) 6a

23

(1a)

APPENDIX A

[ENTERED APRIL 10, 2024; SCV]

VIRGINIA:

In the Supreme Court of Virginia held at

the Supreme Court Building in the City of

Richmond on Wednesday the 10th day of April,

2024.

ERIC FISHER, APPELLANT, against

COMMONWEALTH OF VIRGINIA, APPELLEE.

Record No. 230887 Court of Appeals No. 0515-23-4

FROM THE COURT OF APPEALS OF VIRGINIA

Upon review of the record in this case and

consideration of the argument submitted in support

of and in opposition to the granting of an appeal, the

Court is of the opinion there is no reversible error in

the judgment complained of. Accordingly, the Court

refuses the petition for appeal.

A Copy, Teste:

Muriel-Theresa Pitney, Clerk

By: jlnuian) Deputy Clerk

2a

APPENDIX B

[ENTERED NOVEMBER 6, 2023; CAV]

VIRGINIA:

In the Court of Appeals of Virginia on Monday

the 6th day of November, 2023.

Eric Fisher, Appellant,

against

Commonwealth of Virginia, Appellee.

Record No. 0515-23-4 Circuit Court No. CL23-337

From the Circuit Court of Arlington County

Before Judges Beales, Chaney and Senior Judge

Annunziata

Eric Fisher appeals the circuit court’s denial of

his petition to expunge the police and court records

related to two charges of violating a protective order.

After examining the briefs and record, the panel

unanimously holds that oral argument is unnecessary

because the dispositive issue in this appeal has been

“authoritatively decided, and the appellant has not

argued that the case law should be overturned,

extended, modified, or reversed.” Code § 17.1-408;

Rule 5A:27.

BACKGROUND

In August 2020, Eric Fisher pleaded no contest

in the General District Court of Arlington County

(GDC) to two charges of violating a protective order.

On each charge, the GDC found “facts sufficient to

find guilt,” but deferred adjudication until September

13, 2022, by agreement of the parties. The GDC

placed Fisher on probation for 24 months. On

September 13, 2022, the GDC dismissed both charges.

In October 2022,in Case No. CL22-4406,

Fisher petitioned the circuit court of Arlington

County for expungement of the police records and

3a

court records related to the dismissed charges. Code

§ 19.2-392.2 allows a person charged with a crime to

petition for expungement of the related police and

court records if the person is acquitted or the charge

is nolle prossed or “otherwise dismissed.” Code § 19.2-

392.2(A). The circuit court determined that Fisher’s

charges were not “otherwise dismissed” and denied

the petition in December 2022.

On January 25, 2023, in Case No. CL23-237,

Fisher again petitioned for expungement in the

circuit court. Upon finding that Fisher entered “a

plea of guilty or its equivalent” on the underlying

criminal charges, the circuit court denied the second

expungement petition by final order dated February

24, 2023.1 This appeal followed.

STANDARD OF REVIEW

Where a person is charged with a crime and

that charge is nolle prossed or “otherwise dismissed,”

he “may file a petition setting forth the relevant facts

and requesting expungement of the police records and

the court records relating to that charge.” Code § 19.2-

392.2(A)(2). “Whether a charge has been ‘otherwise

dismissed’ is a question of law that we review de

novo.” Williams v. Commonwealth,Va.,,885S.E.2d

457,459(2023). The purpose of the expungement

statute is “to allow ‘innocent citizens’ to avoid the

consequences that flow from the existence of arrest

1In March 2023, Fisher moved the circuit court to void the

February 2023 final order and to grant the expungement

petition. The Commonwealth objected that the motion was not

properly before the court as an attempt to relitigate an issue that

was previously decided. The circuit court denied the motion for

the reasons stated in the February 2023 final order and

“{a]ldditionally, the motion [was] denied under the doctrine of res

judicata as it was previously heard, ruled upon and denied by

[the circuit court] in [Case No.] CL22-4064.”

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