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Alabama

Open Courts Compendium

Author

Dennis R. Bailey
Evans Bailey
Rushton, Stakely, Johnston & Garrett, P.A.
184 Commerce Street (36104)
Post Office Box 270 (36101-0270)
Montgomery, Alabama
P (334) 206-3234 F (334) 481-0031
DRB@rushtonstakely.com

Special thanks to Gilbert E. Johnston, Jr., James P. Pewitt, and W. Lee Elebash, then of Johnston Barton Proctor & Rose LLP, who authored the previous version of this chapter.

Last Updated March 2019

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I. Introduction: Access rights in the jurisdiction

A. The roots of access rights

It has long been the rule in Alabama to allow public inspection of judicial records. Brewer v. Watson, 61 Ala. 310, 311 (1878). More than a century ago, the Supreme Court of Alabama held that “an inspection of the records of judicial proceedings kept in the courts of the country, is held to be the right of any citizen.” Id.; see also Ex parte Balogun, 516 So. 2d 606, 612 (Ala. 1987) (holding that “the public generally has a right of reasonable inspection of public records required by law to be kept, except where inspection is merely out of curiosity or speculation or where it unduly interferes with the public official’s ability to perform his duties”), abrogated on other grounds, Ex parte Crawford, 686 So. 2d 196 (Ala. 1996). The public’s right to inspect court records derives from the “universal policy underlying the judicial systems of this country [that] secrecy in the exercise of judicial power . . . is not tolerable or justifiable.” Jackson v. Mobley, 157 Ala. 408, 411–12, 47 So. 590, 592 (1908).

The Alabama Rules of Civil Procedure closely follow the federal rules, which generally require proceedings to occur in open court. See, e.g., Fed. R. Civ. P. 77(b) (“Every trial on the merits must be conducted in open court[.]”); Fed. R. Civ. P. 43(a) (“At trial, the witnesses’ testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise.”). Alabama Rule of Civil Procedure 77(b) provides as follows:

Trials and hearings; orders in chambers. All 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. All other acts or proceedings may be done or conducted by a judge in chambers, without the attendance of the clerk of other court officials and at any place within the state either within or without the circuit; but no hearing, other than one ex parte, shall be conducted outside the circuit without the consent of all parties affected thereby.

Ala. R. Civ. P. 77 (b).

Alabama Rule of Civil Procedure 43(a) provides that “the testimony of witnesses shall be taken orally in open court, unless otherwise provided in these rules.”

Access to judicial records is also permitted by Alabama Code Section 36-12-40 (2009), which grants the public the right to inspect and copy “public writings.” “Public writings” has been interpreted by the Supreme Court of Alabama to include judicial records. Ex parte Balogun, 516 So. 2d at 612; Stone v. Consol. Publ’g Co., 404 So. 2d 678, 681 (Ala. 1981) (interpreting a “public writing” to be “a record as is reasonably necessary to record the business and activities required to be done or carried on by a public officer so that the status and condition of such business and activities can be known by our citizens”).

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B. Overcoming a presumption of openness

In Alabama, in order for a presumptively open criminal proceeding to be closed, a court must make “specific, on-the-record findings demonstrating that closure is essential to preserve higher values and the closure order is narrowly tailored to serve those interests.” Ex parte Birmingham News Co., 624 So. 2d 1117, 1125 (Ala. Crim. App. 1993). Interests that may override the public’s right of access include (1) the defendant’s right to a fair trial, (2) compelling government interests, such as “the government’s interest in inhibiting disclosure of sensitive information,” “the government’s interest in protecting victims of sex crimes from the further trauma and embarrassment of testifying in public,” and “the government’s interest in protecting its witnesses from physical harm” (i.e., where an undercover police officer is involved in an ongoing investigation), and (3) protection of the privacy of persons not before the court. Id.

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C. Procedural prerequisites to closure

In Alabama, the public and the press must be afforded the minimum due process requirements of “notice and an opportunity for a hearing appropriate to the nature of the case” before they may be excluded from those proceedings. Ex parte Birmingham News Co., 624 So. 2d 1117, 1133–34 (Ala. Crim. App. 1993) (noting that these requirements “must remain sufficiently flexible to accommodate the exigencies of the litigation process and avoid unwarranted delays”) (citing United States v. Raffoul, 826 F.2d 218, 222 (3d Cir. 1987); In re The Herald Co., 734 F.2d 93, 102 (2d Cir. 1984)).

In Ex parte Birmingham News Co., the Alabama Court of Criminal Appeals further held as follows:

In order to provide the requisite notice, pretrial motions for closure “must be docketed reasonably in advance of their disposition so as to give the public and press an opportunity to intervene and present their objections to the court.” In re Washington Post Co., 807 F.2d 383, 390 (4th Cir. 1986). Accord Baltimore Sun v. Colbert, 593 A.2d 224, 229 (Md. 1991); Gannett Pub. Co., 571 So. 2d at 945. Docketing of the motion is sufficient to provide notice to the press or public of the impending hearing. Individual notice to the press or public is “unwarranted and impractical in the context of the administration of criminal litigation,” and is not required. United States v. Criden, 675 F.2d 550, 559 (3d Cir. 1982). Accord In re Knight Pub. Co., 743 F.2d 231, 234 (4th Cir. 1984); Baltimore Sun, 593 A.2d at 229.

At a hearing on a motion for closure, “there is an ongoing presumption in favor of openness,” In re Charlotte Observer, 882 F.2d at 853, and the party seeking closure has the burden of establishing that he or she has “an overriding interest that is likely to be prejudiced” if closure is not ordered. Press-Enterprise II, 478 U.S. at 7, 106 S. Ct. at 2739. “The court should provide individuals opposing closure an opportunity to object and to state the reasons for that opposition before ruling on the closure motion.” Baltimore Sun, 592 A.2d at 229.

In determining whether closure is warranted, the trial court must balance the competing interests as discussed in Part II of this opinion. The court must also consider whether less drastic alternatives would serve those competing interests. Under Press-Enterprise II, “criminal proceedings may be closed to the public without violating First Amendment rights only if (1) closure serves a compelling interest; (2) there is a ‘substantial probability’ that, in the absence of closure, that compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect that compelling interest.” In re Washington Post, 807 F.2d at 392. With regard to the second requirement, there should be “a showing of a significant risk of prejudice to the defendant’s right to a fair trial or of danger to persons, property, or the integrity of significant activities entitled to confidentiality, such as an ongoing undercover investigation or detection devices.” In re The Herald Co., 734 F.2d 93, 100 (2d Cir. 1984).

If closure is deemed appropriate, the trial court must make “specific, on-the-record findings demonstrating that closure is essential to preserve higher values and [that] the closure order is narrowly tailored to serve those interests.” Ex parte Consolidated Pub. Co., 601 So. 2d at 433. Accord Press-Enterprise I, 464 U.S. at 510, 104 S. Ct. at 824. In demonstrating the latter, the trial court should include its reasons for concluding that “no less drastic alternatives to closure are feasible.” In re Charlotte Observer, 882 F.2d at 853. The trial court’s findings “must be specific enough to enable an appellate court to determine whether its decision was proper.” In re Search Warrant for Secretarial Area -- Gunn, 855 F.2d 569, 574 (8th Cir. 1988). General “conclusory assertions” are not sufficient. In re Washington Post, 807 F.2d at 392.

Ex parte Birmingham News Co., 624 So. 2d 1117, 1134 (Ala. Crim. App. 1993).

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II. Procedure for asserting right of access to proceedings and records

A. Media standing to challenge closure

The news media generally have standing to intervene in a criminal proceeding to object to a motion to “seal” court records that would otherwise be a matter of public information. Ex parte Balogun, 516 So. 2d 606, 611 (Ala. 1987) (citing United States v. Cianfrani, 573 F. 2d 835 (3rd Cir. 1978)). With regard to obtaining access to public documents, the Supreme Court of Alabama has held that “a newspaper has a right equal to, but no greater than, that of the general public.” Id. at 613 (citing In re Express-News Corp., 695 F.2d 807 (5th Cir. 1982)).

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B. Procedure for requesting access in criminal cases

Although Holland v. Eads, 614 So. 2d 1012 (Ala. 1993), was a civil case, the Supreme Court of Alabama’s holding with regard to the correct procedure for requesting access does not appear to be limited to only civil cases. In Holland, the Court held that “a motion to intervene is the procedurally correct means to seek the opening of a sealed court file.” 614 So. 2d at 1014. More informal approaches, such as sending a letter to the judge, may also be acceptable in Alabama.

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C. Procedure for requesting access in civil matters

The Supreme Court of Alabama has held that “a motion to intervene is the procedurally correct means to seek the opening of a sealed court file.” Holland v. Eads, 614 So. 2d 1012, 1014 (Ala. 1993). More informal approaches, such as sending a letter to the judge, may also be acceptable in Alabama.

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D. Obtaining review of initial court decisions

Rule 21 of the Alabama Rules of Appellate Procedure provide for the filing of a petition for a writ of mandamus, and such a petition appears to be the preferred manner in which to seek review of a trial court’s decision denying access to certain proceedings or records. See, e.g., Ex parte Consol. Publ’g Co. Inc., 601 So. 2d 423 (Ala. 1992); Ex parte The Birmingham News Co., Inc., 624 So. 2d 1117 (Ala. Crim. App. 1993). A writ of mandamus is an extraordinary remedy, and is appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court. Ex parte Inverness Constr. Co., 775 So. 2d 153, 156 (Ala. 2000).

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III. Access to criminal proceedings

A. In general

The public generally has a right of access to most criminal proceedings in Alabama, as Rule 9.3(b) of the Alabama Rules of Criminal Procedure provides that “[a]ll proceedings shall be open to the public, unless otherwise provided by law.” Ala. R. Crim. P. 9.3(b) (2019). One major exception, however, is a grand jury proceeding: under Alabama law, grand jury proceedings are always closed. See Ala. Code § 12-16-214 (2019) (“it is essential to the fair and impartial administration of justice that all grand jury proceedings be secret and that the secrecy of such proceedings remain inviolate”); see also Ala. R. Crim. P. 9.3 cmt. (“All criminal proceedings after arrest, other than grand jury proceedings, should be public.” (citing Jackson v. Mobley, 47 So. 590 (Ala. 1908))). Additionally, juvenile proceedings are closed by statute. See Ala. Code § 12-15-129.

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B. Pretrial proceedings

The Supreme Court of Alabama has held that “the qualified First Amendment right of access to criminal proceedings described in Press-Enterprise II applies to pretrial hearings.” Ex parte Consol. Publ’g Co., 601 So. 2d 423, 433 (Ala. 1992) (citing Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1 (1986)); see also Ex parte Birmingham News Co., 624 So. 2d 1117, 1125 (Ala. Crim. App. 1993) (discussing application of the public’s right of access to pretrial proceedings generally, as recognized in Ex parte Consolidated Publishing Co.). Therefore, all pretrial proceedings in Alabama courts are presumptively open to the public, subject to the qualifications set forth in Press-Enterprise II and its progeny.

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C. Criminal trials

Alabama’s presumption of public access to criminal proceedings also extends to criminal trials. Ex parte Birmingham News Co., 624 So. 2d 1117, 1133 (Ala. Crim. App. 1993) (“we must first recognize that . . . the public and the press have a legally protected interest in access to criminal trial proceedings”).

Courts do, however, have some discretion in deciding whether to clear the courtroom under certain circumstances. Ex parte Judd, 694 So. 2d 1294, 1296 (Ala. 1997). Ala. Code § 12-21-202 provides, in part, that “[i]n all prosecutions for rape and assault with intent to ravish, the court may, in its discretion, exclude from the courtroom all persons, except such as may be necessary in the conduct of the trial.” Ala. Code § 12-21-202. The Supreme Court of Alabama has adopted the Waller v. Georgia test for determining when a courtroom can be closed pursuant to Ala. Code § 12-21-202 without violating the defendant’s constitutional right to a public trial. Id. at 1297; see Waller v. Georgia, 467 U.S. 39, 47–48 (1984) (holding that challenges to court closure brought by a defendant on Sixth Amendment grounds “must meet the tests set out in Press-Enterprise and its predecessors” in the First Amendment context).

The Alabama Supreme Court has cautioned that a total closure of the courtroom may be justified only in the narrowest of circumstances; rather, a partial closure of the proceeding is more often appropriate, which will ordinarily allow members of the press and the families of the victim and the defendant as spectators. Ex parte Judd, 694 So. 2d 1294, 1297 (Ala. 1997); see P.M.M. v. State, 762 So. 2d 384 (Ala. Crim. App. 1999) (closure of the courtroom for the entire trial of a rape, sex abuse, and sodomy case was too broad; the trial court failed to make specific findings to justify total closure).  Indeed, the 11th Circuit later determined that the defendant in Judd was entitled to habeus corpus relief for a violation of his Sixth Amendment right to a public trial as a result of the total closure of trial.  Judd v. Haley, 250 F.3d 1308, 1319 (11th Cir. 2001).

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D. Post-trial proceedings

We know of no statutory or case law authority relating specifically to public access to criminal post-trial proceedings; however, the presumption of openness under Rule 9.3(b) of the Alabama Rules of Criminal Procedure would apply.

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E. Appellate proceedings

We know of no statutory or case law authority relating specifically to public access to criminal appellate proceedings; however, the presumption of openness under Rule 9.3(b) of the Alabama Rules of Criminal Procedure would apply.

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IV. Access to criminal court records

A. In general

Under Alabama law, criminal court records are subject to the same federal constitutional rights of access as criminal proceedings; furthermore, because the closure of criminal proceedings and the sealing of court records are related matters implicating similar interests, Alabama courts apply the same standard of review to both issues. Ex parte Birmingham News Co., 624 So. 2d 1117, 1126 (Ala. Crim. App. 1993); see Ex parte Consol. Publ’g Co., 601 So. 2d 423, 433–34 (Ala. 1992). Records related to grand jury proceedings and juvenile proceedings, however, are presumptively closed. See Ala. Code § 12-16-216 (prohibiting disclosure of information related to grand jury proceedings); Ala. Code § 15-19-7(b) (“The fingerprints and photographs and other records of a person adjudged a youthful offender shall not be open to public inspection; provided, however, that the court may, in its discretion, permit the inspection of papers or records.”).

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B. Arrest records

Arrest reports, with redaction of witness identification and witness reports at the discretion of the police department, are public records. Birmingham News Co. v. Deutcsh, CV 85-504-132 JDC (Cir. Ct. of Jefferson County, Ala., Equity Div., Aug. 19, 1986) (consent order). Mugshots in a police computer database also qualify as public records. Op. Att’y Gen. Ala. No. 2004-108, 2004 Ala. AG LEXIS 35 (Apr. 1, 2004). Requests for these materials may be made in person or by telephone to the office that holds the records; however, a written request form may be required in some cases. See Blankenship v. Hoover, 590 So. 2d 245, 250 (Ala. 1991) (holding that a written request form may be required as long as the requirement is not “implemented . . . in order to dissuade or prevent any individual from acquiring access to public documents or records” and does not give the records’ custodian “the power to hinder access or refuse disclosure based on perceived necessity or established office policy.”).  However, sheriff’s offices and correction centers are required to expunge identification information, including mugshots, from their records in the event the defendant is released without charge or cleared of the offense.  Op. Att’y Gen. Ala. No. 2007-052 (Feb. 26, 2007).

State law also requires each sheriff to keep in the sheriff’s office, subject to public inspection during office hours, a well-bound book into which must be entered a description of each prisoner received into the county jail. Ala. Code § 36-22-8.

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C. Dockets

Docket information is available online via the state’s “Alacourt” system. Users may subscribe for an annual fee to Alacourt generally (https://v2.alacourt.com), or they may choose to access docket information related to a single case through the state’s “Just One Look” system, for a substantially reduced fee (https://pa.alacourt.com). Docket information may also be obtained from the clerk of the court in which the case is pending.

We know of no statutory or case law authority relating specifically to whether a docket may be sealed.

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Arrest warrants and search warrants, with supporting affidavits and depositions, are open after execution and return. 197 Op. Att’y Gen. Ala. 13 (Oct. 10, 1984).

We know of no statutory or case law authority directly relating to whether the public has a right of access to wiretap materials; recent case law suggests, however, that the public does not have a right of access to wiretap materials until said materials are admitted into evidence at trial. See, e.g., Ex parte Easterwood, 980 So. 2d 367, 372 (Ala. 2007) (discussing closure of a suppression hearing related to wiretap recordings).

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E. Discovery materials

Discovery materials generally do not qualify as public records, and as such are not presumptively open. See Ex parte Birmingham News Co., 624 So. 2d 1117, 1129 (Ala. Crim. App. 1993) (“Discovery in a criminal case has traditionally been a private matter between the parties and historically has not been open to the press and public.”). Autopsy reports, however, are public records if performed by the Alabama Department of Forensic Sciences. See Ala. Code § 36-18-2 (“The director [of the Department of Forensic Sciences] shall keep photographed or microphotographed reproductions of original reports of all investigations that he conducts in his office. Reproductions of such materials shall be public records and shall be open to public inspection at all reasonable times.”).

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F. Pretrial motions and records

In holding that “the qualified First Amendment right of access to criminal proceedings described in Press-Enterprise II applies to pretrial hearings,” the Supreme Court of Alabama also found that the same right of access applies to associated court records. Ex parte Consol. Publ’g Co., 601 So. 2d 423, 433 (Ala. 1992).

Motions for closure, however, may be filed under seal, and the trial court may accept submissions under seal or for in camera review. Ex parte Birmingham News Co., 624 So. 2d 1117, 1135 (Ala. Crim. App. 1993). Further, “[i]f the articulation of the trial court’s specific findings would itself reveal information entitled to remain confidential, the basis for closure may be set forth in a sealed portion of the record.” Id.

With regard to plea agreements, negotiations are considered to be private matters between the parties; any plea agreement, however, must be disclosed in open court prior to the time the plea is offered. Ala. R. Crim. P. 14.3(b). Once disclosed in open court, the plea agreement becomes subject to the public’s First Amendment right of access. Ex parte Birmingham News Co., 624 So. 2d 1117, 1131 (Ala. Crim. App. 1993).

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G. Trial records

Records related to criminal trial proceedings are generally subject to the same public right of access as the criminal trials themselves. See Ex parte Consol. Publ’g Co., 601 So. 2d 423, 433 (Ala. 1992) (holding that “the qualified First Amendment right of access to criminal proceedings applies to the court file”).

With regard to evidence submitted at trial generally, “exhibits that are admitted at trial are within the ‘public domain’ and are subject to inspection.” Ex parte State of Alabama, 4 So. 3d 1196, 1202 (Ala. Crim. App. 2008) (citing Ex parte Balogun, 516 So. 2d 606, 612 (Ala. 1987)). Psychiatric reports related to the defendant’s mental competency to stand trial, however, are filed with the clerk of the court under seal, and are accessible only by the judge, the parties’ attorneys, and “others having a proper interest therein” as determined by the court. Ala. R. Crim. P. 11.5(a).

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H. Post-trial records

We know of no statutory or case law authority directly relating to the public’s right of access to post-trial records generally; however, since post-trial proceedings are presumptively open under Rule 9.3 of the Alabama Rules of Criminal Procedure, the same right of access that attaches to those proceedings very likely attaches to records of the same. Exceptions to this rule, however, are “presentence reports, diagnostic reports, and reports of any physical or mental examinations prepared pursuant to Rule 26.3 and Rule 26.4,” which are not matters of public record pursuant to Ala. R. Crim. P. 26.5. As such, these materials are not subject to a right of access by the public.

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I. Appellate records

We know of no statutory or case law authority relating specifically to public access to appellate records in general. Rule 52 of the Alabama Rules of Appellate Procedure, however, states that in any case involving (1) a juvenile who has been the subject of a proceeding in the juvenile court system, (2) a person granted youthful offender status, (3) a victim of child abuse, or (4) a victim of a sex offense, “the records and papers in the appellate court in any such proceeding shall be open for inspection only to counsel of record, and, upon order of the appellate court, to others having a proper interest therein.” Ala. R. App. P. 52.

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J. Other criminal court records issues

Remote electronic access to certain criminal court records may be obtained through the Alacourt system, as discussed above.

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V. Access to civil proceedings

A. In general

The Supreme Court of Alabama has stated generally that “[o]nly in special circumstances, or where justice requires, are proceedings limited or completely closed to the public.” Ex parte Balogun, 516 So. 2d 606, 610 (Ala. 1987); see also Holland v. Eads, 614 So. 2d 1012, 1015 (Ala. 1993) (“Most other courts . . . have recognized a similar presumption of a right of public access to judicial proceedings . . . and placed the burden on the party seeking secrecy.”)

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B. Pre-trial proceedings

Although Alabama courts have not specifically addressed whether pre-trial proceedings are open, the Supreme Court of Alabama’s decision in Balogun (indicating that judicial “proceedings” are open) should extend to pre-trial proceedings. Generally, interrogatories, requests for production, and requests for admission, as well as deposition transcripts, are not filed with the court and therefore do not become part of the public record. Such discovery documents can become public record to the extent they are filed in support of other pleadings or motions. In that instance, the Alabama Rules of Civil Procedure provide that “only the relevant material shall be filed with the motion or response.” Ala. R. Civ. P. 5(d) and 5(e).

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C. Trials

Alabama Rule of Civil Procedure 77(b) provides as follows:

(b) Trials and hearings; orders in chambers. All 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. All other acts or proceedings may be done or conducted by a judge in chambers, without the attendance of the clerk of other court officials and at any place within the state either within or without the circuit; but no hearing, other than one ex parte, shall be conducted outside the circuit without the consent of all parties affected thereby.

Ala. R. Civ. P. 77 (b).

The Supreme Court of Alabama has also stated that “[g]enerally, trials are open to the public.” Balogun, 516 So. 2d at 610. Citing Newman v. Graddick, 696 F. 2d 796 (11th Cir. 1983), the Supreme Court of Alabama further noted, however, that “public access must be balanced with the effect on the parties.” Id.

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D. Post-trial proceedings

Although Alabama courts have not specifically addressed whether post-trial proceedings are open, the Supreme Court of Alabama’s decision in Balogun (indicating that judicial “proceedings” are open) should extend to post-trial proceedings.

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E. Appellate proceedings

Although Alabama courts have not specifically addressed whether appellate proceedings are open, the Supreme Court of Alabama’s decision in Balogun (indicating that judicial “proceedings” are open) should extend to appellate proceedings.

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VI. Access to civil records

A. In general

It has long been the rule in Alabama to allow public inspection of judicial records. Brewer v. Watson, 61 Ala. 310, 311 (1878). More than a century ago, the Supreme Court of Alabama held that “an inspection of the records of judicial proceedings kept in the courts of the country, is held to be the right of any citizen.” Id. at 311; see also Ex parte Balogun, 516 So. 2d 606, 612 (Ala. 1987) (holding that “the public generally has a right of reasonable inspection of public records required by law to be kept, except where inspection is merely out of curiosity or speculation or where it unduly interferes with the public official’s ability to perform his duties”). The public’s right to inspect court records derives from the “universal policy underlying the judicial systems of this country [that] secrecy in the exercise of judicial power . . . is not tolerable or justifiable.” Jackson v. Mobley, 157 Ala. 408, 411–12, 47 So. 590, 592 (1908).

Access to judicial records is also permitted by Alabama Code Section 36-12-40 (2019), which grants the public the right to inspect and copy “public writings.” “Public writings” has been interpreted by the Supreme Court of Alabama to include judicial records. Ex parte Balogun, 516 So. 2d 606, 613 (Ala. 1987); Stone v. Consol. Publ’g Co., 404 So. 2d 678, 681 (Ala. 1981) (interpreting a “public writing” to be “a record as is reasonably necessary to record the business and activities required to be done or carried on by a public officer so that the status and condition of such business and activities can be known by our citizens”).

Limitations of the public’s right to inspect “must be strictly construed and must be applied only in those cases where it is readily apparent that disclosure will result in undue harm or embarrassment to an individual, or where the public interest will clearly be adversely affected, when weighed against the public policy considerations suggesting disclosure.” Chambers v. Birmingham News Co., 552 So. 2d 854, 856 (Ala. 1989). The party refusing disclosure bears the burden of “proving that the writings or records sought are within an exception and warrant nondisclosure of them.” Chambers, 552 So. 2d at 856–57; Ex parte CUNA Mut. Ins. Soc’y, 507 So. 2d 1328, 1329 (Ala. 1987); Ex parte McMahan, 507 So. 2d 492, 493 (Ala. 1987). The Supreme Court of Alabama has held that the following types of records do not warrant disclosure: “recorded information received by a public officer in confidence, sensitive personnel records, pending criminal investigations, and records the disclosure of which would be detrimental to the best interests of the public.” Stone, 404 So. 2d at 681.

The Supreme Court of Alabama has held that a trial court should not seal court records except upon a written finding that the moving party has proved by clear and convincing evidence that the information contained in the document sought to be sealed: (1) constitutes a trade secret or other confidential commercial research or information; (2) is a matter of national security; (3) promotes scandal or defamation; or (4) pertains to wholly private family matters, such as divorce, child custody, or adoption; (5) poses a serious threat of harassment, exploitation, physical intrusion, or other particularized harm to the parties to the action; or (6) poses the potential for harm to third persons not parties to the litigation. Holland v. Eads, 614 So. 2d 1012, 1016 (Ala. 1993). If any one of these criteria are satisfied, then the trial court may seal the record, or any part of the record, before trial, during trial, or even after a verdict has been reached. Id. This approach limits, but does not abolish, the range of judicial discretion. Id. There is a presumption in favor of openness, which can be overcome only by clear and convincing evidence that an individual’s privacy interest (as set out above) rises above the public interest in access. Id.

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B. Dockets

There do not appear to be any Alabama cases that specifically address the right to access court dockets, but the general presumption of openness should be applicable.

Docket information is available online via the state’s “Alacourt” system. Users may subscribe for an annual fee to Alacourt generally (https://v2.alacourt.com), or they may choose to access docket information related to a single case through the state’s “Just One Look” system, for a substantially reduced fee (https://pa.alacourt.com). Docket information may also be obtained from the clerk of the court in which the case is pending.

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C. Discovery materials

There do not appear to be any Alabama cases that specifically address the right to access discovery material in a civil case. Discovery is generally not publicly available, however, unless and until it is filed with a court in connection with a motion, brief or other pleading. Like its federal counterpart, Alabama Rule of Civil Procedure 26(c) allows for protective orders keeping discovery material confidential if a party can show “good cause.” Ala. R. Civ. P. 26(c).

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D. Pre-trial motions and records

Subject to the provisions of Holland v. Eads, 614 So. 2d 1012, 1016 (Ala. 1993), pre-trial motions and records should be available to the public.

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E. Trial records

Subject to the provisions of Holland v. Eads, 614 So. 2d 1012, 1016 (Ala. 1993), trial records should be available to the public.

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F. Settlement records

Alabama courts do not appear to have specifically addressed this issue, but absent settlement records being filed with, interpreted or enforced by an Alabama court, the right of access that is generally applicable to judicial records would not apply.

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G. Post-trial records

Subject to the provisions of Holland v. Eads, 614 So. 2d 1012, 1016 (Ala. 1993), post-trial records should be available to the public.

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H. Appellate records

Subject to the provisions of Holland v. Eads, 614 So. 2d 1012, 1016 (Ala. 1993), appellate records should be available to the public.

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I. Other civil court records issues

VII. Jury and grand jury access

A. Access to voir dire

Alabama courts recognize the United States Supreme Court’s ruling that the “public’s right of access extends to jury voir dire . . . .” Ex parte Birmingham News Co., 624 So. 2d 1117, 1125 (Ala. Crim. App. 1993) (citing Press-Enter. Co. v. Superior Court, 464 U.S. 501, 508 (1984)).

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B. Juror identities, questionnaires and other records

A master list of “all persons in the county who may be called for jury duty, with their addresses and any other necessary identifying information” is required to “be open to the public for inspection at all reasonable times.” Ala. Code § 12-16-57 (2019).

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C. Grand jury proceedings and records

The presumption of openness that attaches to criminal proceedings in general does not apply to grand jury proceedings. Ex parte Birmingham News Co., 624 So. 2d 1117, 1128 (Ala. Crim. App. 1993). The standard for determining when the traditional secrecy of the grand jury may be broken is deliberately stringent: parties seeking disclosure of grand jury transcripts must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed. Id. (citing Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222 (1979)). The Supreme Court of Alabama further stated that “[p]ut simply, the secrecy of the grand jury proceeding will not be broken except where the party seeking disclosure can show a ‘compelling necessity’ or a ‘particularized need.’” Ex parte Birmingham News Co., 624 So. 2d at 1128.

There is no precedent in Alabama for discovery of the names and addresses of the grand jury members. Ex parte State, 738 So. 2d 1140, 1142 (Ala. Crim. App. 1998) (“The ramifications of disclosing the names of grand jury members are too great to comprehend. It is safe to conclude that the number of indictments would decrease drastically and the function of the grand jury would be greatly hindered if the grand jurors’ names were not secret. The secrecy of the grand jury proceedings is well-grounded in this country’s jurisprudence and has protected the grand jury system.”).

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D. Interviewing jurors

The Alabama Code provides that “[n]o past or present grand juror . . . shall willfully at any time . . . reveal, disclose or divulge or attempt or endeavor to reveal, disclose or divulge or cause to be revealed, disclosed or divulged, any knowledge or information pertaining to any grand juror’s questions, considerations, debates, deliberations, opinions or votes on any case, evidence, or other matter taken within or occurring before any grand jury of this state.” Ala. Code § 12-16-215 (2019). Additionally, “[n]o past or present grand juror . . . shall willfully . . . reveal, disclose or divulge or endeavor to reveal, disclose or divulge or cause to be revealed, disclosed or divulged, any knowledge of the form, nature or content of any physical evidence presented to any grand jury of this state or any knowledge of the form, nature or content of any question propounded to any person within or before any grand jury or any comment made by any person in response thereto or any other evidence, testimony or conversation occurring or taken therein.” Ala. Code § 12-16-216 (2019).

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VIII. Proceedings involving minors

A. Delinquency

Alabama law allows the parties, their counsel, witnesses, and other persons requested by a party to be admitted to delinquency hearings. Ala. Code § 12-15-129 (2019). Other persons as the juvenile court finds to have a “proper interest” in the case or in the work of the juvenile court may be admitted by the juvenile court on condition that the persons refrain from divulging any information which would identify the child under the jurisdiction of the juvenile court or family involved. Id. The general public is specifically excluded from delinquency hearings. Id.

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B. Dependency

Alabama law allows the parties, their counsel, witnesses, and other persons requested by a party to be admitted to dependency hearings. Ala. Code § 12-15-129 (2019). Other persons as the juvenile court finds to have a “proper interest” in the case or in the work of the juvenile court may be admitted by the juvenile court on condition that the persons refrain from divulging any information which would identify the child under the jurisdiction of the juvenile court or family involved. Id. The general public is specifically excluded from dependency hearings. Id.

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C. Other proceedings involving minors

Due to the personal nature of divorce proceedings, the Supreme Court of Alabama has held that the press’s right to obtain access to public records does not extend to divorce proceedings. Ex parte Balogun, 516 So. 2d 606, 610–11 (Ala. 1987). For good cause shown, trial judges also have the discretion to close the proceedings and/or the records to the public and the press to protect the rights of the parties. Id.

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D. Prohibitions on photographing or identifying juveniles

E. Minor testimony in non-juvenile courts

IX. Special proceedings

A. Tribal Courts in the jurisdiction

The official website of the Poarch Band of Creek Indians, located in Atmore, Alabama, states that all civil and criminal trials, with the exception of juvenile proceedings, are open to the public. See http://pci-nsn.gov/westminster/tribal_court.html.   Section 3-1-9 of the Tribal Code states: “All files and records of the courts of the Tribal Judicial System shall be open for public inspection, except that the files and records of juvenile, Drug Court, and ethics matters shall not be open to public inspection and may be inspected only with prior specific judicial authorization. In ethics matters, the parties may waive the confidentiality of any designated files or records.”

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B. Probate

Under Alabama law, records of the office of the probate judge are “public writings” under Ala. Code § 36-12-40, and as such, are “free for examination by all persons, whether interested in the same or not.” Holland v. Eads, 614 So. 2d 1012, 1015 (Ala. 1993) (citing Kernells v. Ezell, 282 So. 2d 266, 268 (Ala. 1973)).

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C. Competency and commitment proceedings

In the case of involuntary civil commitment proceedings, Alabama Code § 22-52-9 provides that “[a]ll hearings . . . shall be open to the public unless the respondent or his attorney requests in writing that the hearings be closed to the public.” Ala. Code § 22-52-9(4). Civil commitment proceedings are generally handled by the probate court, although they may be transferred to the circuit court pursuant to Alabama Code § 12-11-10. Ala. Code § 22-52-9; see Ala. Code § 12-11-10. In either case, the probate court maintains records of all commitment proceedings. Ala. Code § 12-11-10.

We know of no statutory or case law authority relating to public access to criminal commitment proceedings generally. Reports by mental health experts made as a part of these proceedings, however, are not part of the public record unless otherwise ordered by the court. Ala. R. Crim. Pro. R. 25.5.(a).

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D. Attorney and judicial discipline

Generally, with regard to attorney disciplinary proceedings, “all disciplinary proceedings before the Alabama State Bar shall remain confidential until: (1) [t]he respondent pleads guilty . . . or (2) the Disciplinary Board or Disciplinary Commission makes a finding of guilty.” Ala. R. Discip. Pro. R. 30(a). The Bar is required to publish notice of the surrender of license, disbarment, suspension, or transfer to disability inactive status in the Bar publication and in a newspaper of general circulation where the lawyer maintains an office. Ala. R. Discip. Pro. R. 30(e).  Related proceedings that are not confidential, however, include (1) petitions for reinstatement pursuant to Rule 28, (2) proceedings for transfer to disability inactive status pursuant to Rule 27, (3) proceedings for interim suspension and summary suspension pursuant to Rule 20, (4) a character and fitness appeal pursuant to Rule V of the Rules Governing Admission to the Alabama State Bar, and (5) all matters relating to a surrender of license or to public probation. Ala. R. Discip. Pro. R. 30(b). Rule 30(b) further provides that “[t]here shall be no confidentiality in a particular proceeding if the respondent lawyer makes the matter public or requests that it be made public.” Id.

With regard to judicial discipline, all proceedings, including records, except the filing of a complaint by the Commission with the Court of the Judiciary, are confidential. Ala. Const. of 1901, amend. 328, § 6.17; Alabama Judicial Inquiry Commission Rule 5.  In order to show a violation of confidentiality rules, the judge must at least present evidence that the source of the violation was the Judicial Inquiry Commission or Court of the Judiciary. Moore v. Alabama Judicial Inquiry Comm’n, 234 So. 3d 458, 487 (Ala. 2017).

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E. Immigration proceedings

F. Other proceedings

X. Restrictions on participants in litigation

A. Media standing to challenge third-party gag orders

B. Gag orders on the press

C. Gag orders on participants

D. Interviewing judges

The Alabama Cannons of Judicial Ethics provide as follows:

A judge should abstain from public comment about a pending or impending proceeding in any court, and should require similar abstention on the part of court personnel subject to his direction and control. This subsection does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court.

Ala. Canons Jud. Ethics 3(A)(6) (2019).

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XI. Other issues

A. Interests often cited in opposing a presumption of access

Protection of undercover officers or witnesses

The Supreme Court of Alabama has recognized that the presumption of public access may be overridden by the government’s interest in protecting undercover officers. See Ex parte Birmingham News Co., 624 So. 2d 1117, 1125 (Ala. 1993).

Law enforcement investigations and sensitive records

Under Alabama law, the following types of records do not warrant disclosure: “recorded information received by public officers in confidence, sensitive personnel records, pending criminal investigations, and records the disclosure of which would be detrimental to the best interests of the public.” Stone v. Consol. Publ’g Co., 404 So. 2d 678, 681 (Ala. 1981). Alabama courts have also allowed any part of the court records to be sealed before trial, during trial, or after the verdict has been reached if the document constitutes a trade secret or other confidential commercial research or information. Holland v. Eads, 614 So. 2d 1012, 1016 (Ala. 1993). For example, in Holland v. Eads, the court upheld the trial court’s refusal to unseal the record because the case involved trade secrets and confidential information. Id. at 1015.

National security

The Supreme Court held in Holland v. Eads that records that are matters of national security are not subject to public inspection if it is established by clear and convincing evidence that the interest of national security rises above the public interest in access. Holland v. Eads, 614 So. 2d 1012, 1016 (Ala. 1993) (citing Barron v. Fla. Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988)).

Sexual assault victims

In Ex parte Judd, the court adopted the Waller test for determining when a courtroom can be closed without violating a defendant’s constitutional right to a public trial in cases of rape or assault with intent to ravish. Ex parte Judd, 694 So. 2d 1294, 1295 (Ala. 1997). The test for courtroom closure, which applies to Sixth Amendment challenges by the defendant as well as First Amendment challenges by the media, requires:

(1) the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; (2) the closure must be no broader than necessary to protect that interest; (3) the trial court must consider reasonable alternatives to closing the proceeding; and (4) it must make findings adequate to support the closure.

Id. at 386.

In P.M.M. v. State, the trial court did not engage in this careful balancing of interests and the appeals court found that complete closure to all spectators was broader than necessary and a structural defect that warranted a new trial. 762 So. 2d 384, 388 (Ala. Crim. App. 1999). In Ex parte Easterwood, a witness was called by the State to testify to a sexual relationship he had with the defendant but was reluctant to testify in open court. 980 So. 2d 367, 377 (Ala. 2007). The court held that the witness’s interest was not overriding under the Waller test to justify total closure of the courtroom. Id.

A trial court also has discretion under the provisions of section 12-21-202 of the Alabama Code to limit access to the courtroom if there is a showing of substantial need to permit a partial or complete closure of the courtroom where a trial involving victims of sex crimes is being held. Id.; see also, e.g., P.M.M., 762 So. 2d at 388 (trial court has discretion under section 12-21-202 to limit access); Reeves v. State, 88 So. 2d 561 (Ala. 1956) (court did not err in excluding general public from courtroom in rape trial); Ex parte Rudolph, 162 So. 2d 486 (Ala. 1964), cert. denied, 377 U.S. 919 (1964) (exclusion of general public from rape trial was not error). Section 12-21-202 provides:

In all prosecutions for rape and assault with intent to ravish, the court may, in its discretion, exclude from the courtroom all persons, except such as may be necessary in the conduct of the trial; and, in all other cases 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, by and with the consent and agreement of the defendant, in his discretion and on his own motion, or on the motion of the plaintiffs or defendants or their attorneys, to hear and try the said case after clearing the courtroom of all or any portion of the audience whose presence is not necessary.

Ala. Code § 12-21-202 (2019).

Privacy

While there is a presumption in favor of openness, it can be overcome by clear and convincing evidence that an individual’s privacy interest rises above the public interest in access. Holland v. Eads, 614 So. 2d 1012, 1016 (Ala. 1993). For example, Alabama courts have allowed a court document to be sealed that: (1) constitutes a trade secret or other confidential commercial research or information; (2) is a matter of national security; (3) promotes scandal or defamation; (4) pertains to wholly private family matters; (5) poses a serious threat of harassment, exploitation, physical intrusion, or other harm to the parties to the action; or (6) poses the potential for harm to third persons not parties to the litigation. Id.

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B. Cameras and other technology in the courtroom

Authorization

The Alabama Rules for Using Videotape Equipment to Record Court Proceedings set out guidelines on how to identify tapes, the costs for preparation, the judge’s trial log, exhibits, and depositions. Ala. R. U. V. E. 3. These rules apply in any trial or other proceeding where videotape equipment is used and take precedent over conflicting statutes and conflicting Alabama rules of procedure. Ala. R. U. V. E 2.

Under Rule 9.4 of the Alabama Rules of Criminal Procedure, the taking of television pictures or other photographs in or of the courtroom during the progress of judicial proceedings, or the radio broadcasting of judicial proceedings, may be permitted as provided in Canon 3(A)(7) and (7B) of the Canons of Judicial Ethics, or as otherwise may be permitted by law or other rule of court. Ala. R. Crim. P. 9.4.

The Alabama Canons of Judicial Ethics require the Supreme Court of Alabama to authorize a plan for the courtroom to ensure the dignity of court proceedings. Ala. Canons Jud. Ethics 3.A (7A) (2019). It also requires the court to obtain written consent from the accused and the prosecutor in a criminal proceeding and all litigants in a civil proceeding before allowing broadcasting by television or radio, recording or taking of photographs. Id. Similarly, Cannon (7B) requires appellate courts to have an authorized plan for the courtroom and obtain written consent from attorneys and parties involved in the hearing or trial. Id. at 3.A (7B).

Circumstances where cameras are permitted

Under the Alabama Canons of Judicial Ethics, a trial judge may authorize the use of cameras in a courtroom during a trial or other judicial hearing. Ala. Canons Jud. Ethics 3.A (7A) (2019). An appellate court may also authorize the use of cameras during a judicial hearing. Id. at 3.A (7B).

Limitations on use of footage

The Alabama Canons of Judicial Ethics requires the trial and appellate judge to stop using cameras “at any time that a witness who is testifying, the parent or guardian of any testifying witness who is a minor, or a juror, party or attorney expressly objects . . . .” Ala. Canons Jud. Ethics 3.A (7A) (c) (2019); see also id. at 3.A (7B) (b). The Order Adopting Courtroom Media Plan states that “no broadcasting, recording or photographing should detract from the dignity of the court proceedings.” Id. at app. 2. The Order also states that no more than four still photographers and two television cameras are permitted in the courtroom, but that all photographers and television stations are allowed to participate by pooling. Id. at 6.

Still cameras

Still cameras are permitted in the courtroom, but no more than four still photographers are permitted at one time. Ala. Canons Jud. Ethics app. 6 (2009). Photographers using still cameras “may sit anywhere in the courtroom designated for use by the public . . . but the Marshal, upon request of a party, attorney, witness or judge, may require them to take photographs only while standing behind the back row of seats.” Id. at 11. However, still cameras that produce distracting noise cannot be used. Id. at 10.

Live-blogging and Tweeting

Although there does not appear to be any Alabama case law specifically on point, members of the press engaged in both live-blogging and live-tweeting during the federal corruption trial of former Birmingham Mayor Larry Langford. See John Archibald’s play-by-play of the Larry Langford sentencing, Birmingham News, http://blog.al.com/archiblog/2010/03/john_archibalds_play-by-play_o.html.

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C. Tips for covering courts in the jurisdiction

Structure of the court system

District Courts, Probate Courts and Municipal Courts are courts of “limited jurisdiction.” Appeals from courts of limited jurisdiction go to Circuit Court for trial de novo. District Courts have jurisdiction over misdemeanors and Small Claims, concurrent jurisdiction with Circuit Courts in juvenile cases and civil matters between $3,000 and $10,000. District Courts have exclusive jurisdiction over all civil matters not exceeding $3,000. Probate Courts have jurisdiction over wills, administration of estates, guardianship of minors and incompetents, partition of lands and name changes. Municipal Courts jurisdiction over violations of municipal ordinances where Municipal Court is maintained (otherwise these cases are tried in District Court).

Circuit Courts are general jurisdiction trial courts in Alabama. Circuit Courts have exclusive jurisdiction over all felonies, all civil actions exceeding $10,000, and all domestic relations cases. Circuit Courts have concurrent jurisdiction with District Court juvenile cases and all civil matters between $3,000 and $10,000.

The Court of Civil Appeals has appellate jurisdiction over all civil appeals not exceeding $50,000, workers’ compensation, domestic relations, and certain civil appeals deflected from the Supreme Court of Alabama. The Court of Civil Appeals also has jurisdiction over all appeals from administrative agencies (excluding the Public Service Commission).

The Court of Criminal Appeals has appellate jurisdiction over all criminal appeals, post-conviction writs and remedial writs for Criminal trial courts.

The Supreme Court of Alabama is the highest state court and has appellate jurisdiction over all civil appeals exceeding $50,000, appeals from the Alabama Public Service Commission, and petitions for writ of certiorari from the Courts of Civil and Criminal Appeals.

Contact information

Contact information for all courts in Alabama is provided by the Alabama Administrative Office of Courts at http://www.alacourt.gov/default.aspx.

Obtaining transcripts

Transcripts may be obtained from the court reporter covering the proceedings. Costs are generally determined on a per page basis and are generally consistent with the fees charges for deposition transcripts.

Tips on decorum

While in the courtroom, cellphones and other electronic devices are generally required to be turned off or placed on “silent” so as not to disturb the proceedings. These rules often vary by circuit and by judge.

Suggested resources

Open Alabama can be found online at http://open.alabama.gov.

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