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IN RE GRAND JURY OF DOUGLAS CTY.

Cite as 302 Neb. 128

In re Grand Jury of Douglas Co

State of Nebraska, appellant, v. Douglas C

District Court et al., appell

___ 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 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

04/19/2019 09:07 AM CDT
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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: Dua

C. Dougherty, Judge. Appeal dismisse

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, 

Freudenberg 

Funke, 

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 
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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 

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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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 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 

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 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

[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 provision 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 

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 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.

[4,5] 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 

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 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.

[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 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 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 initiated a special proceeding.

[7] However, the fact that the order was made during a special proceeding does not end our inquiry. In a special proceeding, an order is final and appealable if it affects a substantial 

right of the aggrieved party.16 The parties have not demonstrated that a substantial right has been affected under the circumstances 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 effectively 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 substantial 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 evidence than the second prosecution. The testimony and exhibits 

concerning Bearheels’ death have been made public independent of the court’s order.

No other party has shown that the order affected a substantial 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 prosecution 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.

Appeal dismiss

Miller-Lerman, J., not participat