In re Grand Jury of Douglas Cty.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/19/2019 08:07 AM CDT
- 128 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
IN RE GRAND JURY OF DOUGLAS CTY.
Cite as 302 Neb. 128
In re Grand Jury of Douglas County.
State of Nebraska, appellant, v. Douglas County
District Court et al., appellees.
___ N.W.2d ___
Filed January 25, 2019. No. S-18-328.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law, which requires the appellate court to reach a conclusion
independent of the lower court’s decision.
2. ____: ____. Before reaching the legal issues presented for review, it is
the duty of an appellate court to determine whether it has jurisdiction
over the matter before it.
3. Final Orders: Appeal and Error. An order is final for purposes of
appeal under Neb. Rev. Stat. § 25-1902 (Reissue 2016) if it affects a
substantial right and (1) determines the action and prevents a judgment,
(2) is made during a special proceeding, or (3) is made on summary
application in an action after judgment is rendered.
4. Actions: Statutes. Special proceedings include every special civil statu-
tory remedy not encompassed in chapter 25 of the Nebraska Revised
Statutes which is not in itself an action.
5. ____: ____. Where the law confers a right, and authorizes a special
application to a court to enforce it, the proceeding is special, within the
ordinary meaning of the term “special proceeding.”
6. Jurisdiction. A court has jurisdiction to issue orders on motions pertain-
ing to incidental matters within the scope of the matter over which the
court has jurisdiction.
7. Final Orders: Appeal and Error. In a special proceeding, an order
is final and appealable if it affects a substantial right of the aggrieved
party.
8. ____: ____. The inquiry of whether an order affects a substantial right
focuses on whether the right at issue is substantial and whether the
court’s order has a substantial impact on that right.
- 129 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
IN RE GRAND JURY OF DOUGLAS CTY.
Cite as 302 Neb. 128
9. ____: ____. Whether an order affects a substantial right depends on
whether it affects with finality the rights of the parties in the sub-
ject matter.
Appeal from the District Court for Douglas County: Duane
C. Dougherty, Judge. Appeal dismissed.
Douglas J. Peterson, Attorney General, Corey M. O’Brien,
and Mariah Haffield, Senior Certified Law Student, for
appellant.
Michael C. Cox and Daniel J. Fischer, of Koley Jessen,
P.C., L.L.O., for appellees Omaha World-Herald and KETV
Channel 7.
Michael P. Dowd, of Dowd & Corrigan, L.L.C., for amicus
curiae Omaha Police Officers Association.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg JJ.
Funke, J.
The district court impaneled a grand jury to investigate the
in-custody death of Zachary Bearheels. At the close of the evi-
dence, the grand jury returned indictments against two police
officers. The court then issued an order sua sponte to make the
grand jury transcript publicly available, which prompted the
State to file a motion to seal the grand jury documents. The
court held a hearing and overruled the motion. We conclude
that the order overruling the State’s motion was made in a
special proceeding but did not affect a substantial right. As
a result, the district court’s order was not a final, appealable
order. The appeal is dismissed.
BACKGROUND
On July 6, 2017, the Douglas County coroner certified
to the Douglas County District Court that Bearheels “died
while being apprehended by or while in the custody of a law
- 130 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
IN RE GRAND JURY OF DOUGLAS CTY.
Cite as 302 Neb. 128
enforcement officer or detention personnel.”1 The district court
called a grand jury and appointed a special prosecutor from the
Nebraska Attorney General’s office. The grand jury convened
and returned “A True Bill,” which indicated that at least 12
of the 16 grand jurors found probable cause to believe that a
crime had been committed by the two police officers.2
On its own motion and without a hearing, pursuant to Neb.
Rev. Stat. § 29-1407.01(2)(b) (Reissue 2016), the district court
ordered that a transcript of the grand jury proceedings be pre-
pared and made available for public review in the office of the
clerk of district court. The following day, the special prosecu-
tor filed a motion requesting that the grand jury documents not
be publicly disclosed. The special prosecutor’s motion main-
tained that public disclosure is appropriate only when the grand
jury does not return an indictment, known as a “no true bill,”3
and that disclosure of the transcript containing the testimony
of 20 witnesses and 847 exhibits presented to the grand jury
would undermine the pending criminal prosecutions of the two
individuals who were indicted.
The court held a hearing on the matter. The special prosecu-
tor appeared, as well as counsel for each police officer and
counsel for the Omaha World-Herald and KETV Channel 7
(the media). The court heard arguments, received evidence,
took the matter under advisement, and issued a written order in
which it maintained its previous ruling based upon its interpre-
tation of the plain and ordinary meaning of § 29-1407.01(2)(b),
which provides:
In the case of a grand jury impaneled pursuant to subsec-
tion (4) of section 29-1401, a transcript, including any
exhibits of the grand jury proceedings, shall be prepared
at court expense and shall be filed with the court where
1
See Neb. Rev. Stat. § 29-1401(4) (Reissue 2016).
2
See Neb. Rev. Stat. §§ 25-1633, 29-1406(2)(e), and 29-1416(1) (Reissue
2016).
3
See § 29-1406(2)(g)(ii).
- 131 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
IN RE GRAND JURY OF DOUGLAS CTY.
Cite as 302 Neb. 128
it shall be available for public review. Such transcript
shall not include the names of grand jurors or their
deliberations.
Based upon its understanding of the requirements of
§ 29-1407.01(2)(b), the court instructed the clerk to “upon a
request, make a location available for the requesting individual
to review said transcript and exhibits and complete said review
within a reasonable time.” The court’s order did not allow for
dissemination or photocopying of the transcript.
The special prosecutor argues on appeal that there is a
lack of clarity regarding the mandate of public disclosure
under § 29-1407.01(2)(b). The special prosecutor points to the
Legislature’s adoption of 2016 Neb. Laws, L.B. 1000, which
amended § 29-1407.01(2)(b) to make grand jury transcripts
available for public review for all in-custody deaths, and
amended § 29-1406(2)(g), which makes a grand jury report
and transcript for in-custody deaths publicly available when a
grand jury returns no true bill. The special prosecutor argues
that the Legislature intended to create transparency in a grand
jury proceeding in which a police officer is exonerated, but
did not anticipate that the grand jury transcript and exhibits
would be made public when a true bill is returned and the
indictment process is ongoing. The special prosecutor stated
that the exhibits before the grand jury included investiga-
tive reports, autopsy and toxicology reports, photographs, and
digital media. The special prosecutor acknowledged that it
filed this appeal to protect the record and to provoke legisla-
tive change.
We moved the case to our docket pursuant to our statutory
authority to regulate the caseloads of the appellate courts of
this State.4
ASSIGNMENTS OF ERROR
The special prosecutor assigns, restated, that the district
court erred in interpreting § 29-1407.01(2)(b), and related
4
See Neb. Rev. Stat. § 24-1106 (Cum. Supp. 2018).
- 132 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
IN RE GRAND JURY OF DOUGLAS CTY.
Cite as 302 Neb. 128
s­tatutes, to require that the grand jury transcript and exhibits
be made publicly available. In particular, the special prosecutor
argues that grand jury records should not be made public when
the grand jury is impaneled pursuant to § 29-1401(4) and the
grand jury returns a true bill.
STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law, which requires the appellate court to reach a conclusion
independent of the lower court’s decision.5
ANALYSIS
[2] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it
has jurisdiction over the matter before it.6 The threshold issue
is whether the special prosecutor has appealed from a final,
appealable order.
The parties point out that this court has, on three prior
occasions, exercised appellate review over a district court
order which concerned the release of grand jury documents.7
However, our prior cases did not discuss a basis for appellate
jurisdiction, and each case occurred prior to the passage of
L.B. 1000 in 2016, which enacted § 29-1407.01(2)(b), the pro-
vision which prompted the court’s action. This appeal therefore
raises the novel issue of whether this court has appellate juris-
diction over a district court order which makes a grand jury
transcript available for public review under the circumstances
described within § 29-1407.01(2)(b). Our inquiry focuses on
5
Fidler v. Life Care Centers of America, 301 Neb. 724, 919 N.W.2d 903
(2018).
6
State v. Coble, 299 Neb. 434, 908 N.W.2d 646 (2018).
7
See, In re Grand Jury of Lancaster Cty., 269 Neb. 436, 693 N.W.2d 285
(2005); In re Grand Jury of Douglas Cty., 263 Neb. 981, 644 N.W.2d 858
(2002); In re Grand Jury of Douglas Cty., 244 Neb. 798, 509 N.W.2d 212
(1993).
- 133 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
IN RE GRAND JURY OF DOUGLAS CTY.
Cite as 302 Neb. 128
whether the order overruling the special prosecutor’s motion in
opposition to public disclosure of the grand jury transcript is a
final, appealable order.
[3] Appellate jurisdiction turns on whether the order was a
final order under Neb. Rev. Stat. § 25-1902 (Reissue 2016).
An order is final for purposes of appeal under § 25-1902 if
it affects a substantial right and (1) determines the action and
prevents a judgment, (2) is made during a special proceeding,
or (3) is made on summary application in an action after judg-
ment is rendered.8
As a matter of first impression, we conclude that a hearing
on a motion concerning the public disclosure of grand jury
documents under § 29-1407.01(2)(b) is a special proceeding.
[4,5] Special proceedings include every special civil statu-
tory remedy not encompassed in chapter 25 of the Nebraska
Revised Statutes which is not in itself an action.9 An action is
any proceeding in a court by which a party prosecutes another
for enforcement, protection, or determination of a right or the
redress or prevention of a wrong involving and requiring the
pleadings, process, and procedure provided by the statute and
ending in a final judgment.10 Every other legal proceeding by
which a remedy is sought by original application to a court
is a special proceeding.11 Where the law confers a right, and
authorizes a special application to a court to enforce it, the
proceeding is special, within the ordinary meaning of the term
“special proceeding.”12
Examples of special proceedings include juvenile court
proceedings, probate actions, and workers’ compensation
8
Fidler, supra note 5.
9
See, In re Guardianship of Sophia M., 271 Neb. 133, 710 N.W.2d 312
(2006); In re Guardianship & Conservatorship of Larson, 270 Neb. 837,
708 N.W.2d 262 (2006).
10
Id.
11
In re Interest of D.I., 281 Neb. 917, 799 N.W.2d 664 (2011).
12
Id.; State v. Guatney, 207 Neb. 501, 299 N.W.2d 538 (1980).
- 134 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
IN RE GRAND JURY OF DOUGLAS CTY.
Cite as 302 Neb. 128
­cases.13 We have held that various proceedings under chap-
ter 29 of the Nebraska Revised Statutes constitute special
proceedings affecting substantial rights. Examples of orders
made in special proceedings under chapter 29 include orders
overruling a motion for discharge based on a violation of
speedy trial rights, orders finding a defendant not compe-
tent to stand trial, and orders on an application for writ of
habeas corpus.14
We find that an order regarding the public disclosure of
grand jury documents pursuant to § 29-1407.01(2)(b) is made
during a special proceeding. The special prosecutor’s motion
was not itself an action. The motion was filed within a grand
jury proceeding, which involves a probable cause determi-
nation and does not result in a final determination of rights
between parties. Further, § 29-1407.01(2)(b) concerns the civil
statutory remedy of making publicly available information
regarding an in-custody death, a remedy which is not encom-
passed in chapter 25 of the Nebraska Revised Statutes.
[6] We note that while the special proceeding in this
case was the hearing on the special prosecutor’s motion,
§ 29-1407.01(2)(b) and its surrounding statutes do not explic-
itly afford a party the right to file a motion, and there is no
explicit requirement that the parties be heard prior to a court’s
taking action to make the records public. Here, the court inter-
preted § 29-1407.01(2)(b) and made the grand jury transcript
and exhibits publicly available on its own initiative. Thereafter,
the special prosecutor filed a motion to “alter and/or amend”
the court’s order, the media filed a motion to release the grand
jury transcript and exhibits, and one of the police officers
filed a motion for a protective order and a motion to quash.
Even though these motions are not explicitly authorized by
statute, we find that the district court had jurisdiction over the
motions and properly considered them, because the motions
13
See Williams v. Baird, 273 Neb. 977, 735 N.W.2d 383 (2007).
14
See State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998).
- 135 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
IN RE GRAND JURY OF DOUGLAS CTY.
Cite as 302 Neb. 128
clearly pertained to the court’s jurisdiction over the disclosure
of grand jury records under § 29-1407.01(2)(b). A court has
jurisdiction to issue orders on motions pertaining to incidental
matters within the scope of the matter over which the court
has jurisdiction.15 Once the parties filed motions regarding
§ 29-1407.01(2)(b) which requested a civil remedy, they initi-
ated a special proceeding.
[7] However, the fact that the order was made during a spe-
cial proceeding does not end our inquiry. In a special proceed-
ing, an order is final and appealable if it affects a substantial
right of the aggrieved party.16 The parties have not demon-
strated that a substantial right has been affected under the cir-
cumstances of this case.
[8,9] Numerous factors determine whether an order affects a
substantial right for purposes of appeal. The inquiry focuses on
whether the right at issue is substantial and whether the court’s
order has a substantial impact on that right.17 Whether an order
affects a substantial right depends on “‘“whether it affects
with finality the rights of the parties in the subject matter.”’”18
It also depends on whether the right could otherwise effec-
tively be vindicated.19 An order affects a substantial right when
the right would be significantly undermined or irrevocably lost
by postponing appellate review.20
The special prosecutor argues the order affected the State’s
rights by compromising the prosecutions of the police officers.
The special prosecutor argues that releasing the transcript of
the grand jury proceedings undermines the testimony of the
15
Coble, supra note 6; State v. McNerny, 239 Neb. 887, 479 N.W.2d 454
(1992).
16
City of Lincoln v. Twin Platte NRD, 250 Neb. 452, 551 N.W.2d 6 (1996).
17
Deines v. Essex Corp., 293 Neb. 577, 879 N.W.2d 30 (2016), citing State
v. Jackson, 291 Neb. 908, 870 N.W.2d 133 (2015).
18
Id. at 581, 879 N.W.2d at 33, quoting Jackson, supra note 17.
19
See id., citing Jackson, supra note 17.
20
Id.
- 136 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
IN RE GRAND JURY OF DOUGLAS CTY.
Cite as 302 Neb. 128
witnesses and could make the witnesses unwilling to testify
in the future. In addition, the special prosecutor argues that
release of the transcript will generate pretrial publicity that will
impede the State’s ability to seat an impartial jury.
There are many reasons why the special prosecutor has not
shown that the order affected a substantial right of the State.
First, the special prosecutor conceded that these concerns are
for the Legislature to address, and not this court. Second, the
rights asserted do not relate to the grand jury that is the subject
of this case, but, rather, go to the question of whether a sub-
stantial right of the parties is affected in a future prosecution.21
Third, the arguments do not account for the tailored manner in
which the court allowed for public disclosure of the transcript.
The order required interested members of the public to check
out the materials from the clerk of court and complete their
review at the court within a reasonable period of time, and
the court prohibited dissemination of the materials. Fourth,
there is no concrete set of facts in our record that would
establish good cause to not have the information be released
to the media. For example, there has been no showing that the
media coverage would not be factual, as opposed to invidious
or inflammatory.22 Fifth, the State has already completed the
first prosecution, which was scheduled to last twice as long as
the second prosecution and therefore would involve more evi-
dence than the second prosecution. The testimony and exhibits
concerning Bearheels’ death have been made public indepen-
dent of the court’s order.
No other party has shown that the order affected a sub-
stantial right. The media argue the substantial right at issue
is the public’s right to view the transcript and exhibits from
the grand jury proceeding, a right expressly provided by
§ 29-1407.01(2)(b). However, the court’s order upheld this
right; the media were not aggrieved by the order. We note
21
See Fidler, supra note 5.
22
See State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011).
- 137 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
IN RE GRAND JURY OF DOUGLAS CTY.
Cite as 302 Neb. 128
the court interpreted the phrase “available for public review”
within § 29-1407.01(2)(b) to not include dissemination of
the records. Assuming for the sake of argument that the
court’s tailored release of the records was inconsistent with
§ 29-1407.01(2)(b), the media did not cross-appeal from the
court’s order and did not show that the order interfered with
the public’s right to transparency. In addition, if the grand jury
court failed to comply with § 29-1407.01(2)(b), an aggrieved
party could seek relief through a mandamus action rather than
through an appeal.
Lastly, one of the police officers who was indicted filed a
motion for a protective order and a motion to quash before the
grand jury court, but did not appeal from the court’s order. It
would seem that a defendant in a pending criminal prosecu-
tion would be the most natural party to demonstrate that the
release of grand jury documents affects a substantial right.
The parties noted in their arguments that § 29-1407.01(2)(b)
does not affirmatively require that the records be made public
prior to the conclusion of a criminal prosecution following an
indictment. Therefore, where the grand jury returns a true bill
and the court proceeds to make grand jury records publicly
available under § 29-1407.01(2)(b), we see no reason why a
party in a subsequent prosecution cannot move for a protective
order. Likewise, we see no reason why a grand jury court or
a trial court proceeding over the criminal prosecutions cannot
consider a motion for protective order and, upon good cause
shown, grant relief consistent with a party’s right to a fair trial
while still adhering to § 29-1407.01(2)(b).
CONCLUSION
For the reasons stated above, we dismiss the appeal for lack
of jurisdiction.
A ppeal dismissed.
Miller-Lerman, J., not participating.