State v. Douglas Cnty. Dist. Court (In re Grand Jury of Douglas Cnty.)

302 Neb. 128

922 N.W.2d 226

IN RE GRAND JURY OF DOUGLAS COUNTY.

State of Nebraska, Appellant,

v.Douglas County District Court et al., Appellees.

No. S-18-328.

Supreme Court of Nebraska.

Filed January 25, 2019

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., Omaha, for appellees Omaha World-Herald and KETV Channel 7.

Michael P. Dowd, of Dowd & Corrigan, L.L.C., Omaha, 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 evidence, 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 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 prepared and made available for public review in the office of the clerk of district court. The following day, the special prosecutor filed a motion requesting that the grand jury documents not be publicly disclosed. The special prosecutor’s motion maintained 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 prosecutor 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 interpretation of the plain and ordinary meaning of § 29-1407.01(2)(b), which provides:

In the case of a grand jury impaneled pursuant to subsection (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 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-l407.01(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 investigative 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 legislative 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 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

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.⁵

ANALYSIS

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 jurisdiction 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 whether the order overruling the special prosecutor’s motion in opposition to public disclosure of the grand jury transcript is a final, appealable order.

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 judgment 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.

Special proceedings include every special civil statutory 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 cases.¹³ We have held that various proceedings under chapter 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 competent 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 determination 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 encompassed in chapter 25 of the Nebraska Revised Statutes.

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 explicitly 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 interpreted § 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...