Ex Parte A.B.

950 So. 2d 1142, 2006 Ala. LEXIS 155
CourtSupreme Court of Alabama
DecidedJuly 21, 2006
Docket1050514
StatusPublished
Cited by2 cases

This text of 950 So. 2d 1142 (Ex Parte A.B.) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ex Parte A.B., 950 So. 2d 1142, 2006 Ala. LEXIS 155 (Ala. 2006).

Opinion

HARWOOD, Justice.1

This mandamus proceeding involves the proper balancing between the privacy interest of the defendant in the underlying civil action, which has become implicated as hereinafter explained, and the interest of the plaintiff in conducting an informed voir dire of the jury venire. In order to honor, at this level, the privacy interest at issue, this Court has granted the motion of the remaining defendant below, the petitioner for the writ of mandamus in this Court, for anonymity in the styling of this opinion.

[1144]*1144C.D., as executrix of the estate of E.F., deceased, sued A.B. and others in the Coffee Circuit Court alleging that medical malpractice on the part of the defendants resulted in the death of E.F. A.B. is a medical provider residing and practicing in Coffee County. C.D. has settled with all of the other defendants in the case; the case continues with A.B. as the sole defendant.

C.D. took A.B.’s deposition in connection with the case and inquired during the course of the deposition as to the name of the father of A.B.’s minor child. A.B. declined to answer that question on the basis that it represented private information. Although the contents of the parties’ filings with this Court and the copies of the parts of the record they chose to attach for consideration by this Court (see Rule 21, Ala. R.App. P.) do not reveal what further explanation A.B. might have provided in that regard at the deposition, C.D. followed up her deposition inquiry by serving on A.B. an interrogatory asking: “What is the name and address of the father of your child?” After A.B. resisted disclosure of that information, C.D. moved the Coffee Circuit Court to compel A.B. to answer the interrogatory. Over the course of the ensuing procedural developments, C.D. explained why she desired the information, and A.B. explained, in affidavit form, the special circumstances of her child’s paternity.

A.B. attested under oath that she had never told anyone the name of the man who was the father of her child; that no documentation, official or otherwise, existed of his name in that regard; and that the father’s name was not recorded on the child’s birth certificate. She swore further that not only was he not a resident of the Enterprise division of Coffee County, but he was also not a resident of the State of Alabama, had no relatives by blood or

marriage in Coffee County other than A.B.’s child and, to the best of A.B.’s knowledge, had never worked in Coffee County. She further asserted under oath that “[t]he gentlemen and I have agreed that neither of us would divulge his identity. He and I have made a conscious decision to keep this information confidential and absolutely secret.” She explained that she did not wish the identity of the father to become known “because of the potential effects on my child, on myself, and my family.” In her filings with the trial court, C.D. acknowledged that “[t]he identity of the father of [A.B.’s] child is not being sought for discovery of admissible evidence .... ” but was being sought solely to use during voir dire of the jury venire.

In C.D.’s response in opposition to AB.’s petition for the writ of mandamus in this Court, she asserts that she seeks “to obtain discovery of the identity and address of the father of A.B.’s out-of-wedlock child,” in order to protect what she says is her right to a fair and impartial trial guaranteed by Art. I, § 6, Ala. Const, of 1901, and her right to challenge for cause any jurors related to A.B. within the degrees of consanguinity or affinity proscribed by § 12-16-150(4), Ala.Code 1975. That Code subsection provides:

“It is good ground for challenge of a juror by either party:
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“(4) That he is connected by consanguinity within the ninth degree, or by affinity within the fifth degree, computed according to the rules of the civil law, either with the defendant or with the prosecutor or the person alleged to be injured.”

Thus, the situation is that A.B., having made the decision to forgo both an abortion and putting her child up for adoption, and having committed with the father that his identity would be kept secret, wishes to [1145]*1145preserve that secret intact, yet C.D. contends that she is entitled to have the secret revealed for her use during voir dire inquiry.

On November 17, 2005, the trial judge ordered A.B. to answer the interrogatory and provide the court with the name and address of the father of her child. The judge attempted to put in place partial safeguards surrounding the disclosure, ordering that A.B. might “provide the response under seal to the court and submit a Proposed Protective Order for consultation by the court, prior to information being provided to [C.D.],’’ and enjoining and restraining C.D. from “using the name and address of the subject individual to harass or embarrass [A.B.],” allowing C.D. to use the information only in qualifying a jury.

A.B. moved for reconsideration of that order, arguing that there could be “no half-way on the confidentiality of this information,” because it either would be known by no one else or it would be known by someone else who, in turn, could tell someone else and the use of the name during voir dire would mean that it was no longer secret. A.B. argued to the trial court that the United States Supreme Court has specifically recognized that “marriage” and “sexual” concerns are fundamental rights, entitled to privacy protection, and she cited this Court’s opinion in Phillips v. Smalley Maintenance Services, Inc., 435 So.2d 705 (Ala.1983). C.D. responded by pointing out that the trial court had already indicated that it would provide the name and address of the father “in the appropriate form and fashion for [C.D.] to utilize in the voir dire process,” and argued that the trial court could “handle soliciting information as to any connection anyone on the venire may have to the father in such a way as not to cause undue concerns to this child.”

On January 9, 2006, the trial judge denied A.B.’s motion for reconsideration and directed that she appear in court at 9:00 a.m. on February 6, 2006, to show cause why she should not be held in contempt for having failed to comply with the court’s previous order compelling her to respond to the discovery request. A.B. then petitioned this Court for a writ of mandamus directing the trial court not to require her to disclose the name of her child’s father. We ordered answer and briefs pursuant to Rule 21(b), Ala. R.App. P., and we now proceed to address the merits of the petition.2

In Phillips, supra, we pointed out:

“The United States Supreme Court has specifically recognized ‘marriage’ and ‘sexual’ concerns as fundamental rights, entitled to privacy protection. Eisenstadt, Sheriff v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).”

435 So.2d at 708.

In Phillips, this Court expressly affirmed that Alabama recognizes a civil cause of action for “invasion of privacy” when one wrongfully intrudes, among other things, into the private affairs and concerns of another. We noted with approval the statement in Comment (c) to § 652B

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950 So. 2d 1142 (Supreme Court of Alabama, 2006)

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Bluebook (online)
950 So. 2d 1142, 2006 Ala. LEXIS 155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-ab-ala-2006.