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In re Grand Jury of Douglas County

Supreme Court of Nebraska

January 25, 2019

In re Grand Jury of Douglas County.
v.
Douglas County District Court et al., appellees. State of Nebraska, appellant,

         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 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 "special proceeding."

         6. 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 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.

         [302 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.

          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, 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 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 [302 Neb. 130] 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 [302 Neb. 131] it shall be available for public review. Such transcript ...

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