J. Litigation; pending litigation or other attorney-client privileges.

1. Criminal litigation: Rule 9.3(b) of the Alabama Rules of Criminal Procedure states that "[a]ll proceedings shall be open to the public, unless otherwise prohibited by law." Closure of criminal proceedings is primarily a matter of federal constitutional law, which was clearly set out and applied by Alabama's appellate courts in Ex parte Consolidated Publishing Co., 601 So. 2d 423 (Ala.), cert. denied, 113 S. Ct. 665 (1992), and Ex parte Birmingham News Co., 624 So. 2d 1117 (Ala. Crim. App. 1993) (petition for writ of mandamus for access to pretrial proceedings and transcripts of same granted in principal part, denied regarding grand jury proceeding portions only). But see Ala. Code §  12-21-202 (1995) (trial judge has discretion to clear courtroom in prosecutions for rape and assault with intent to ravish or when evidence is vulgar, obscene, etc.); Ex parte Judd, 694 So. 2d 1294 (Ala. 1997) (during the testimony of a child victim of sex abuse and sodomy, the trial court had the discretion to limit access to the courtroom upon a showing of substantial need to exclude some spectators); P.M.M. v. State, 762 So. 2d 384 (Ala. Crim. App. 1999) (trial court failed to make specific findings to justify total closure of the courtroom for the entire trial of a rape, sex abuse, and sodomy case); Ala. Code § 12-21-203(d)(1) (1995) (in prosecution for criminal sexual conduct, evidence regarding past sexual behavior of complaining witness is first presented in camera, for court's determination as to admissibility).

2. Civil litigation: Rule 77(b) of the Alabama Rules of Civil Procedure states that "[a]ll trials upon the merits shall be conducted in open court, except as otherwise provided by statute, and so far as convenient in a regular court room." A state statute permits a judge to clear the courtroom "where the evidence is vulgar," as follows:

In all civil cases sounding in damages involving the question of rape, assault with intent to ravish, seduction, divorce or any other case where the evidence is vulgar, obscene or relates to the improper acts of the sexes and tends to debauch the morals of the young, the presiding judge shall have the right, in his discretion and on his own motion, or on motion of plaintiffs or defendants or their attorneys, to hear and try the case after clearing the courtroom of all or any portion of the audience whose presence is not necessary. Ala. Code § 12-21-9 (1995).

Closure of divorce proceedings based upon the authority of Alabama Code § 12-21-9 (1995) was unsuccessfully challenged in Simmons v. Conger, 86 F.3d 1080 (11th Cir. 1996). The federal appellate court found that the Alabama state court trial judge had acted "pursuant to a state statute" in closing the court room, and the plaintiffs in the federal action did not challenge the constitutionality of the state statute. 86 F.3d at 1084, 1086. Although the federal court did not invite such a challenge, in the proper case a constitutional challenge to Alabama Code §§ 12-21-9 and -202 (1995) might succeed.

3. Juvenile proceedings: Juvenile proceedings are closed by state law, and the Alabama Rules of Juvenile Procedure provide that "[t]here shall be no notice by publication of any proceeding in the juvenile court except in proceedings to terminate parental rights." Alabama Rules of Juvenile Procedure 13(B). See also Ala. Code §  12-15-65 (1995) (delinquency, in need of supervision, and dependency hearings for juveniles are closed); Ala. Code § 12-15-90(g)(4) (1995) (involuntary commitment hearings for juveniles are closed); Ala. Code § 15-19-1 (1995) (youthful offender proceedings are closed); Ala. Code §  26-21-4(i) (1992) (all proceedings regarding a minor's petition for waiver of parental consent to abortion are closed); Ala. Code § 26-14-7.1(6) (Supp. 2005) (investigative hearings regarding child abuse and neglect allegedly committed by persons connected with child care facility are closed).

4. Attorney-client meetings: Meetings of governmental bodies may be closed to discuss with their attorney the legal ramifications of and legal options for pending litigation, controversies not yet being litigated but imminently likely to be litigated or imminently likely to be litigated if the governmental body pursues a proposed course of action. Ala. Code § 36-25A-7(a)(3) (Supp. 2005).