From several perspectives, civil commitment proceedings are problematic. There is no question that involuntary commitment involves a substantial deprivation of liberty, comparable to criminal incarceration. (1) The decision to commit a person, against his or her will, to a mental institution demands practical evaluation of the degree of danger the person poses as well as the application of the labyrinthine legal theory of substantive due process. (2) And yet, at least in Alabama, probate judges who may not be lawyers (3) are authorized to commit individuals with mental disabilities, or perceived disabilities, to institutions that have historically been, and may yet be, far worse than the condition from which they were "saved." (4) Serious issues of coercion, exploitation, and the right to refuse treatment have been raised with respect to civil commitment proceedings. (5) Beyond the deprivation of liberty that is involved, these proceedings and the records they generate raise important questions with regard to the hazy "right to informational privacy," that the Supreme Court has recognized but failed to develop. (6) This privacy right is in danger of significant erosion due to the increasing on-line availability of judicial records. (7)
It is suggested that public access to trials and open court records is an important check on the power of the courts and the government. (8) Constitutional authority for public access to courts and court records has been found in the First, Sixth, and Fourteenth Amendments. (9) There are good policy reasons why the public and the press should not be barred from judicial proceedings, and why judicial records should be open, but there are also persuasive reasons to protect the privacy of individuals who are subject to civil commitment. (10) As powerful as the legal and practical arguments for open records and hearings may be, (11) American law has never required complete public access to the courts. (12)
Civil commitment procedures in Alabama and around the nation have been scrutinized and revised in recent decades. (13) However, according to the legal and academic commentators who comprise the "therapeutic jurisprudence" movement, further revision is in order. (14) Therapeutic jurisprudence is an interdisciplinary perspective that studies the consequences of the law on the psychological functioning of those it affects. (15) The perspective proposes that the impact of legal proceedings be examined and that, where possible, actors in the legal process seek therapeutic outcomes over anti-therapeutic actions. (16) Therapeutic jurisprudence has given rise to "problem-solving courts," such as drug courts, domestic violence courts and family treatment drug courts, but the perspective began in the field of mental health. (17)
One of the founders of the therapeutic jurisprudence movement, Professor Bruce Winick, has examined the movement's impact on commitment hearings. (18) Professor Winick describes anti-therapeutic consequences that have traditionally resulted from the common practice of conducting brief, non-adversarial commitment hearings in which judges appear to "rubber-stamp" the recommendations of clinical expert witnesses. (19) Furthermore, Professor Winick is critical of the paternalistic role played by some attorneys in civil commitment proceedings and of judges who do not treat the subjects of these hearings with dignity and respect. (20)
Serious issues of social policy are raised by the civil commitment process, and specifically by commitment proceedings in Alabama. (21) While this article touches on some of these fundamental issues, they are largely beyond this article's scope. The focus of this article is on the relatively narrow issue of public access to hearings and records in civil commitment proceedings in Alabama. This article suggests that at least with respect to court records and hearings in involuntary commitment proceedings in Alabama, the better policy is to restrict, rather than increase public access. This is because, while people with disabilities are becoming more integrated into society, a stigma remains with regard to commitment to mental institutions. (22) Increasing public access to information about the identity of citizens involved in commitment proceedings gives rise to opportunities for subtle and overt discrimination. (23) When these problems are understood in the context of the involuntary commitment process, it is clear that the problems outweigh the benefits that flow from a policy of unrestricted public access to commitment hearings and records. (24) This article suggests that civil commitment proceedings are legally unique and should be treated exceptionally in terms of public access. This article urges that attorneys and judges who conduct civil commitment proceedings in Alabama must examine their roles in these proceedings and reinterpret those roles to better provide the procedural and substantive protections required by due process standards. However, this article focuses only on the relatively small procedural adjustments involved in that monumental endeavor.
First, this article briefly describes the law on civil commitment in Alabama and examines the development of the policy that favors open court proceedings and records, both nationally and in Alabama. It describes a "quiet revolution" that has occurred with respect to electronic access to court records, and some of the unanticipated consequences that arise from the growing availability of these documents. Next, this article reflects on the nature of involuntary commitment hearings and addresses concerns with regard to open hearings and court records for individuals with mental disabilities. Observations are made about the fledgling "right to informational privacy." This article concludes with a suggestion that judicial or legislative changes are needed and that new restrictions should be placed on public accessibility to hearings and records in involuntary commitment cases. (25)
CIVIL COMMITMENT IN ALABAMA
In some respects, the state of Alabama has led the nation in developing the procedures by which citizens are involuntarily committed and reforming the conditions under which institutionalized citizens live. (26) Unfortunately, this reform was not initiated or encouraged by the state's legislative or executive branches, but was imposed by the federal courts. (27) The long-standing Wyatt v. Stickney case was filed in 1970 and established, for the first time, a "fight to treatment" in 1971. (28) A year later, the federal judge in the case defined that right in a set of standards for humane conditions and adequate treatment, based on the work of a team of lawyers and experts. (29) The case dragged on for more than 30 years as the state struggled against the court's orders, but in 2003, the court approved a settlement, finding that Alabama had made significant progress in many aspects of its procedures and institutional conditions. (30)
Like most states' laws, Alabama law governing involuntary civil commitment focuses on the danger the person subject to commitment poses to himself and others. (31) The Alabama Code (32) allows commitment only when a judge finds that the person is mentally ill, that he or she poses a real and present threat of substantial harm to himself or herself or to others, and that the danger the person is said to pose has been "evidenced by some factual basis." (33) In Wyatt, the federal court emphasized the requirement that the person be shown to be dangerous by way of a recent overt act. (34) These and other procedural requirements were made mandatory in Lynch v. Baxley. (35) The Alabama statute further requires that there either be treatment available for the person's mental illness or that "confinement of the dangerous but untreatable individual is necessary for his and the community's safety and well-being." (36) The commitment must also be "the least restrictive alternative necessary and available for treatment of the person' s illness." (37)
There are specific commitment standards articulated in the Code of Alabama. (38) The person who is subject to commitment is to be present at the hearing unless the person's attorney waives that requirement and the judge "has found and determined from evidence presented in an adversarial heating that the respondent is so mentally or physically ill as to be incapable of attending such proceedings." (39) At the hearing, the person has subpoena power and the right to offer evidence, to confront and cross-examine adverse witnesses, and the right to testify; but he or she also has the right not to testify. (40) The hearing is to be transcribed, (41) and the rules of evidence apply. (42) According to the Code of Alabama, (43) the person subject to commitment has the right to counsel, and to appointment of counsel if indigent, and where the commitment of a presently confined person is sought, an attorney shall be appointed guardian ad litem. Interestingly, commitment hearings are required to be conducted in surroundings that are "as non-coercive as possible," and appropriate street dress is to be made available to the person subject to the commitment. (44) The standard of evidence for commitment is "clear, unequivocal and convincing." (45) The law also specifically states that these hearings are to be open to the public unless the person or his attorney requests in writing that the hearings be closed. And, as discussed below, judicial records in involuntary commitment proceedings are generally available to the public. (46) It is with these last two provisions of the law that this article is primarily concerned, and while the statute creates an inference that these records and proceedings should be open, we suggest that they should, and can be generally closed.
CONSTITUTIONAL BASES FOR OPEN TRIALS AND HEARINGS THE SIXTH AMENDMENT
Under the common law, both criminal and civil trials were open to the public. With the advent...