Daher v. Cuyahoga Community College Dist. (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Daher v. Cuyahoga Community College Dist., Slip Opinion No. 2018-Ohio-4462.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2018-OHIO-4462
DAHER, APPELLEE, v. CUYAHOGA COMMUNITY COLLEGE DISTRICT ET AL.,
APPELLEES; CUYAHOGA COUNTY COURT REPORTER, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Daher v. Cuyahoga Community College Dist., Slip Opinion
No. 2018-Ohio-4462.]
Discovery—Final, appealable order—Trial court’s in camera inspection order
does not determine the action with respect to a provisional remedy under
R.C. 2505.02—Court of Appeals’ judgment affirmed.
(No. 2017-0828—Submitted June 26, 2018—Decided November 6, 2018.)
APPEAL from the Court of Appeals for Cuyahoga County,
No. 104836, 2017-Ohio-751.
____________________
DEGENARO, J.
{¶ 1} In this discretionary appeal, we consider whether an order by the
General Division of the Cuyahoga County Court of Common Pleas requiring
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appellant, a Cuyahoga County court reporter,1 to submit sealed grand-jury materials
for in camera court inspection is final and appealable under R.C. 2505.02(B)(4).
For the reasons that follow, we hold that the order is not final and appealable, and
we affirm the Eighth District Court of Appeals’ dismissal of the court reporter’s
appeal.
Facts and Procedural History
{¶ 2} Appellee Cuyahoga Community College District hired appellee
George Daher to be a part-time police dispatcher in 2012. After Daher was fired in
2015, two cases commenced in the Cuyahoga County Common Pleas Court: a
criminal case charging Daher with unauthorized use of property and the civil case
giving rise to this appeal, in which Daher alleged employment discrimination and
retaliation by the community college and a number of its employees.
{¶ 3} Not long after Daher was indicted, the trial court dismissed the
criminal case and sealed the record. Thereafter, Daher added a claim for malicious
prosecution to his civil action and served a subpoena upon the Cuyahoga County
court reporter to turn over all transcripts, notes, and exhibits from grand-jury
proceedings pertaining to his indictment. The court reporter moved to quash the
subpoena, contending that those materials were secret and privileged and that Daher
had failed to demonstrate a particularized need for disclosure that outweighs the
need for secrecy, citing In re Petition for Disclosure of Evidence Presented to
Franklin Cty. Juries in 1970, 63 Ohio St. 2d 212, 216, 407 N.E.2d 513 (1980).
Daher replied that he needed the grand-jury materials to overcome the rebuttable
presumption that probable cause existed to indict him. Without this material, he
alleged, he would be unable to prevail on his malicious-prosecution claim.
1. The appellant does not indicate whether it is the office of Court Reporters for the general division
of the Cuyahoga County Court of Common Pleas, see Loc.R. 6.0 of the Court of Common Pleas of
Cuyahoga County, General Division, or one or more reporters within that office. We therefore refer
to the appellant as a court reporter in the generic sense.
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{¶ 4} The trial court held the court reporter’s motion in abeyance and
ordered the submission of the requested grand-jury materials for in camera
inspection. The court reporter appealed to the Eighth District Court of Appeals,
which dismissed the case for lack of a final, appealable order. 2017-Ohio-751, 85
N.E.3d 1048, ¶ 31. The Eighth District reasoned that only when the trial court
compelled disclosure of the grand-jury materials to Daher would there be a final,
appealable order for appellate review. Daher at ¶ 24.
{¶ 5} The court reporter filed a jurisdictional appeal, and we accepted two
propositions of law:
I. Litigants are prohibited from obtaining in camera
inspection of grand jury materials by issuing a subpoena duces
tecum to the court reporter during civil discovery. Ohio law requires
parties seeking disclosure of grand jury materials outside of criminal
proceedings to file a petition to the supervising court of the grand
jury and demonstrate a particularized need for the disclosure that
outweighs the need for secrecy to obtain judicial review. Petition
for Disclosure of Evidence, 63 Ohio St. 2d 212, 407 N.E.2d 513
(1980), applied and affirmed.
II. An order compelling disclosure of secret grand jury
materials for in camera inspection contrary to Petition for
Disclosure of Evidence, 63 Ohio St. 2d 212, 407 N.E.2d 513 (1980)
is a final appealable order under R.C. 2505.02.
151 Ohio St. 3d 1501, 2018-Ohio-365, 90 N.E.3d 945.
{¶ 6} We will address the propositions of law in inverse order, as the second
raises a jurisdictional issue that we must resolve first, and its disposition controls
whether we reach the merits of the first.
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Order for In Camera Review Is Not Final and Appealable
{¶ 7} The Ohio Constitution grants appellate courts jurisdiction “to review
and affirm, modify, or reverse judgments or final orders.” Article IV, Section
3(B)(2). R.C. 2505.02(B) sets forth five types of orders that are final and
appealable. The court reporter contends that the trial court’s order to submit the
grand-jury materials for in camera inspection is final and appealable under R.C.
2505.02(B)(4), which authorizes review for the following:
An order that grants or denies a provisional remedy and to
which both of the following apply:
(a) The order in effect determines the action with respect to
the provisional remedy and prevents a judgment in the action in
favor of the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful
or effective remedy by an appeal following final judgment as to all
proceedings, issues, claims, and parties in the action.
To qualify as a final and appealable order, then, the court reporter must show that
(1) the order grants or denies a provisional remedy, (2) the order in effect
determines the action with respect to that provisional remedy, and (3) he would not
be afforded meaningful review of the decision if he had to wait for final judgment.
State v. Anderson, 138 Ohio St. 3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 42.
{¶ 8} In considering each requirement, we turn first to the words of R.C.
2505.02(B)(4) and apply the usual rule that “[w]hen the statutory language is plain
and unambiguous, and conveys a clear and definite meaning, we must rely on what
the General Assembly has said.” Jones v. Action Coupling & Equip., Inc., 98 Ohio
St.3d 330, 2003-Ohio-1099, 784 N.E.2d 1172, ¶ 12, citing Symmes Twp. Bd. of
Trustees v. Smyth, 87 Ohio St. 3d 549, 553, 721 N.E.2d 1057 (2000). Unless the
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words are defined by the relevant statute, we give them their usual and ordinary
meaning. Brecksville v. Cook, 75 Ohio St. 3d 53, 56, 661 N.E.2d 706 (1996).
{¶ 9} The court reporter maintains that the trial court’s in camera inspection
order “determines the action with respect to the provisional remedy” under R.C.
2505.02(B)(4)(a) because the order implicitly sanctions the use of a civil subpoena
to gain access to grand-jury materials. This process, the court reporter argues,
disregards the standards we laid out for the disclosure of grand-jury materials in
Petition for Disclosure of Evidence, 63 Ohio St. 2d 212, 407 N.E.2d 513, and
disregards the inherent secrecy of grand-jury materials. The court reporter
maintains that the trial court’s order is therefore reviewable regardless of whether
those materials are ultimately ordered to be disclosed to Daher.
{¶ 10} Regardless of whether the process that Daher has followed comports
with the requirements of Petition for Disclosure of Evidence—and we do not reach
that question here—the court reporter’s argument ignores the threshold requirement
for appellate jurisdiction under R.C. 2505.02(B)(4): the disputed order must grant
or deny a provisional remedy. R.C. 2505.02(A)(3) defines “provisional remedy”
as a “proceeding ancillary to an action, including * * * discovery of privileged
matter.” Here, the provisional remedy would be ordering disclosure of the grand-
jury materials to Daher. See State v. Muncie, 91 Ohio St. 3d 440, 448, 746 N.E.2d
1092 (2001) (defining the relevant order as “the mandate from the trial court that
grants or denies the particular relief at issue in that proceeding”). The trial court’s
order was not for such disclosure; it was for in camera review.
{¶ 11} The purpose and utility of in camera inspection are in the trial court’s
ability to review materials without compromising the confidentiality of the
information. See Henneman v. Toledo, 35 Ohio St. 3d 241, 243, 520 N.E.2d 207
(1988). A trial court’s in camera review does not cause the materials to be disclosed
to the parties, the attorneys, or the public. Huntsman v. Aultman Hosp., 5th Dist.
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Stark No. 2006 CA 00331, 2008-Ohio-2554, ¶ 85, quoting King v. Am. Std. Ins. Co.
of Ohio, 6th Dist. Lucas No. L-06-1306, 2006-Ohio-5774, ¶ 27.
{¶ 12} In managing the progression of a case, a trial court has inherent
authority to use in camera review as a tool to resolve discovery disputes. State ex
rel. Grandview Hosp. & Med. Ctr. v. Gorman, 51 Ohio St. 3d 94, 95, 554 N.E.2d
1297 (1990). That review “is only a minimal first step” in the process. Id. at 96.
Thus, irrespective of whether a trial court correctly or erroneously exercises its
authority to conduct an in camera inspection, the inspection remains the first step
in a procedure culminating in a decision to grant or deny a provisional remedy; it
is not the provisional remedy itself.
{¶ 13} We acknowledge the importance of the secrecy afforded to grand-
jury proceedings, which is meant “to protect witnesses from retaliation, to prevent
tampering with witnesses who may be called to testify at a resulting trial, and to
prevent publication of unwarranted charges against an innocent target.” In re
Special Grand Jury Investigation Concerning Organic Technologies, 84 Ohio St. 3d
304, 307, 703 N.E.2d 790 (1999). However, a “ ‘private review, prior to any order
for the production of documents to an adverse party, by a competent judge who is
sworn to maintain confidentiality’ ” does not compromise the secrecy of grand-jury
materials that the General Assembly has sought to protect. Brahm v. DHSC, L.L.C.,
2016-Ohio-1207, 61 N.E.3d 726, ¶ 25 (5th Dist.), quoting Huntsman at ¶ 88. Our
faith in the judiciary requires that we trust judges “ ‘to keep confidential
information confidential.’ ” Huntsman at ¶ 85, quoting King at ¶ 27.
{¶ 14} The trial court ordered its own court reporter to submit grand-jury
materials for in camera inspection so that the trial court could determine whether to
order disclosure of the materials to Daher. In short, the trial court’s order neither
granted nor denied the provisional remedy of compelling the disclosure of grand-
jury materials to Daher. Because it did not grant or deny a provisional remedy, the
trial court’s order did not meet the first requirement of R.C. 2505.02(B)(4). Only
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after the trial court denies the motion to quash and orders its court reporter to
comply with the subpoena and disclose the sought-after materials to Daher would
appellate review be available to the court reporter as an avenue to seek relief.
{¶ 15} As we have determined that we lack jurisdiction to consider the
merits of the court reporter’s appeal, we will not address the first proposition of
law, which contends that obtaining in camera inspection of grand-jury materials
must be made by a petition to the supervising court and not by a subpoena duces
tecum.
{¶ 16} We are bound by R.C. 2505.02(B)(4), which controls our
jurisdiction regardless of any process-based contentions at this juncture. An order
for a trial court’s in camera inspection of the grand-jury materials is not an order
that grants a provisional remedy; an order mandating production of the materials
would be. Only in the event of the latter order will there be a final order over which
the court of appeals has jurisdiction. Accordingly, we affirm the judgment of the
Eighth District Court of Appeals dismissing the court reporter’s appeal for lack of
a final, appealable order.
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, and DEWINE, JJ.,
concur.
O’DONNELL, J., dissents, with an opinion.
_________________
O’DONNELL, J., dissenting.
{¶ 17} Respectfully, I dissent.
{¶ 18} This opinion is misguided. Sacrosanct in Ohio law is the recognized
“particularized need” standard for release of a grand jury transcript. See In re
Petition for Disclosure of Evidence Presented to Franklin Cty. Juries in 1970, 63
Ohio St. 2d 212, 216, 407 N.E.2d 513 (1980). The majority opens the door to grand
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jury transcripts for in camera inspection without any demonstration of
particularized need in this case. Unprecedented.
{¶ 19} The majority asserts that upon an order to produce the transcript, an
appeal may be undertaken. Still, no demonstration of particularized need
demanded. Backwards.
{¶ 20} And, it is the hope of the majority that the trial court would be able
to maintain the secrecy of the grand jury. Good luck with that!
{¶ 21} The naiveté of the majority is clearly demonstrated.
{¶ 22} The correct resolution of this appeal is aptly demonstrated in the first
proposition of law advanced by the court reporter:
Litigants are prohibited from obtaining in camera inspection
of grand jury materials by issuing a subpoena duces tecum to the
court reporter during civil discovery. Ohio law requires parties
seeking disclosure of grand jury materials outside of criminal
proceedings to file a petition to the supervising court of the grand
jury and demonstrate a particularized need for the disclosure that
outweighs the need for secrecy to obtain judicial review. Petition
for Disclosure of Evidence, 63 Ohio St. 2d 212, 407 N.E.2d 513
(1980), applied and affirmed.
{¶ 23} No more than that needs to be written.
{¶ 24} The majority jurists will eventually come to see the folly of today’s
opinion, but it will be too late to correct the damage caused by its ill-advised,
hastily-considered judgment.
_________________
John W. Gold, L.L.C., and John W. Gold, for appellee George Daher.
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Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Nora
E. Poore, Assistant Prosecuting Attorney, for appellant.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M.
Heenan, Assistant Prosecuting Attorney, urging reversal for amicus curiae, Ohio
Prosecuting Attorneys Association.
_________________
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