Alabama’s 2014 law allowing citizens to apply for the expungement of certain court records and criminalizing publication of those records could go before the House Judiciary Committee in the state’s next regular legislative session, according to one of the longest-tenured members of the Mobile delegation.
Rep. Victor Gaston forwarded Lagniappe’s concerns about the law to the committee after he became aware of issues related to the law after Lagniappe co-publisher Rob Holbert voiced concerns to legislators in April. Among those concerns are that the law’s criminalization component represents an unconstitutional prior restraint on freedom of speech.
“I don’t know whether the law is unconstitutional or constitutional, that’s up to the courts to decide, but I do think Lagniappe’s points are well made,” Gaston said.
Gaston said the House Judiciary Committee is active and competent, with representatives from both political parties. He stressed the recommendation does not guarantee the committee will investigate and said it could take “a long, long time” before it is considered.“They consider every bill that is introduced and assigned to it,” Gaston said. “They look at the bills one at a time. They have a lot of work and don’t just sit down and start talking about everything right away.”
Currently, the law has led to one online investigative reporter being arrested and charged with a Class B misdemeanor, as well as another charge against him that led the reporter to flee the state. Also, to date Lagniappe’s requests for the state’s expungement data have been denied.
On April 1, Lagniappe submitted a public records request to the Administrative Office of Courts seeking expungement data the office is required by law to provide to the Legislature. Lagniappe’s request was denied when the AOC said it was unable to track the data in its state judicial information system program.
The office offered to provide the total number of expungements granted since the law passed, but that request would have cost Lagniappe $500 for labor. AOC justified this as the cost of having people research the information they are already required by law to have.
AOC suggested the data may be available through the Alabama Law Enforcement Agency, so on May 16 Lagniappe requested that data from ALEA.
On May 25, ALEA general counsel Michael W. Robinson denied the request, saying the agency is not required by law to track expungement statistics and does not have a system in place that tracks the information.
“It would be an undue, unnecessary and expensive burden on our agency to create a program to do this task,” Robinson’s letter said.
Lagniappe requested the records in order to accurately report on the expungement law. In March, investigative journalist John Caylor became the first known person in the state to be arrested on the misdemeanor charge of publishing the expunged court record of federal court clerk Thomas Scott Smith III, who had his 2001 arrest for unlawful possession of a controlled substance expunged after the state’s law passed in 2014.
Smith III’s attorney, Thomas Smith Jr., said the publication of the records on Caylor’s website represented a violation of his client’s privacy. The attorney, Smith III’s father, filed a civil complaint against Caylor in Baldwin County court but has since amended it to a defamation and invasion of privacy lawsuit against Caylor and insider-magazine.com.
“Caylor’s harm goes beyond the unlawful publishing of the expunged records due to the way he maliciously used them and his outrageous lies,” Smith Jr. said.
At a hearing May 3, Caylor said he agreed to take the information off the website until it could be determined whether Alabama’s law is constitutional and does not create an illegal prior restraint by the government. Caylor claimed he worked all night after the hearing to have the records removed from his website. However, despite removing the materials from the site by mid-morning, Smith III filed another complaint and Daphne Municipal Judge Michael Hoyt issued a warrant for his arrest. Hoyt declined to be interviewed, saying he does not comment publicly on pending cases.
Smith Jr. disputed Caylor’s version of exactly when the records were removed from the website. According to the attorney, Hoyt’s order included a condition that Caylor not republish the records.
There was no time limit set on the order because the attorney said the records had been removed prior to the May 3 hearing. Smith Jr. said the records were republished on the site the morning after the hearing, at which time he decided to seek a second charge and the warrant was issued.
“I am sure the records had been removed from the website prior to the hearing because on April 28 my office received a telephone call by a person identifying himself as John Caylor stating he wanted to leave a message for me that Scott’s records had been removed from the website,” the attorney said. “We immediately confirmed they were no longer on the website and did so again several other times, including the morning of May 3. On the morning of May 4 I was notified that the records were again being published on Caylor’s website, which I confirmed myself.”
Caylor was to turn himself over to police the following day, but told Lagniappe he fled the state for fear for his safety if he is jailed in Alabama. At press deadline, Caylor remains a fugitive.
Before and after the hearing, Caylor said he received phone calls from a U.S. Marshal named Josh Devine asking him to remove Smith’s expunged records as well as records related to U.S. District Court Judge Ginny Granade from his website. Smith III serves as a clerk for Grenade.
According to Caylor the calls from Devine stopped after he provided recordings of a person identifying himself as “Josh” pressuring him to remove the records and to turn himself in to Daphne authorities. Lagniappe published a report about the recording and the federal marshal’s alleged involvement in a state misdemeanor case.
The Marshals Service Mobile office has not responded to multiple requests for comment since May about its involvement in Caylor’s case. When Devine was contacted directly about any possible involvement, he told the reporter to contact the service’s public information office.
The marshals are sworn to protect 94 federal court districts and approximately 2,200 federal judges. The marshals are also responsible for the protection of federal prosecutors, federal public defenders and other court employees.