In re Grand Jury of Douglas Cty. , 302 Neb. 128 ( 2019 )


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    04/12/2019 09:08 AM CDT
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    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.
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    IN RE GRAND JURY OF DOUGLAS CTY.
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    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
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    IN RE GRAND JURY OF DOUGLAS CTY.
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    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).
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    IN RE GRAND JURY OF DOUGLAS CTY.
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    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).
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    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).
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    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).
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    ­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).
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    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.
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    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).
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    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.