In re Grand Jury of Douglas County.
Douglas County District Court et al., appellees. State of Nebraska, appellant,
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.
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.
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.
Actions: Statutes. 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.
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
Jurisdiction. A court has jurisdiction to
issue orders on motions pertaining to incidental matters
within the scope of the matter over which the court has
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.
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
Neb. 129] 9.: _ . Whether an order affects a substantial
right depends on whether it affects with finality the rights
of the parties in the subject matter.
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
Michael C. Cox and Daniel J. Fischer, of Koley Jessen, PC,
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
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
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 [302 Neb.
130] enforcement officer or detention
personnel." 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
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,
"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
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 [302 Neb.
131] it shall be available for public review. Such transcript