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Daily Court Reporter - News Trial judge’s inspection of secret grand jury proceedings cannot be immediately appealed


Trial judge’s inspection of secret grand jury proceedings cannot be immediately appealed

Dan Trevas, Supreme Court of Ohio

A court reporter cannot immediately appeal a judge’s demand to privately review sealed grand jury materials, the Ohio Supreme Court ruled recently.

In a 6-1 decision, the Supreme Court indicated that a Cuyahoga County court reporter’s attempt to quash a subpoena duces tecum to turn over grand jury records for a judge’s in camera inspection could not be appealed during the middle of pretrial proceedings. The Court reasoned that although a judge’s order to disclose grand jury records to a party in a civil case would be immediately appealable, the judge’s own inspection of the records is merely a step leading up to that order.

Writing for the Court majority, Justice Mary DeGenaro wrote an appellate court only has the authority to review a challenge to a “final, appealable order” as defined in R.C. 2505.02, and a judge’s order to review materials does not fit within the statute's definition. It could have been immediately appealed only if — after the judge reviewed the material — the judge had directed the reporter to hand it over to a former Cuyahoga Community College District police dispatcher who was suing the college over his termination.

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, Judith L. French, Patrick F. Fischer, and R. Patrick DeWine joined the opinion.

In a dissenting opinion, Justice Terrence O’Donnell stated the Court has taken the unprecedented step of opening the door for requests for grand jury transcripts without articulating a “particularized need” for the materials, which the Court has long required.

Employee Fights Criminal Charge, Termination

George Daher was hired as a part-time police dispatcher by the Cuyahoga Community College District in 2012, and he was fired in 2015. Daher was criminally charged in Cuyahoga County Common Pleas Court with the unauthorized use of property. He then filed a civil lawsuit against the college, alleging employment discrimination and retaliation.

Not long after Daher was indicted, the trial court dismissed the criminal case and sealed the record. Daher then added a claim of malicious prosecution to his civil lawsuit against the university and several of its employees.

Daher subpoenaed the Cuyahoga County court reporter to turn over all transcripts, notes, and exhibits from the grand jury proceedings related to his indictment.

The court reporter moved to invalidate the subpoena, contending the materials were secret and Daher failed to meet the standard required to obtain the material. The court reporter cited the Ohio Supreme Court’s 1980 In re Petition for Disclosure of Evidence Presented to Franklin Cty. Juries in 1970. The decision required a person to show a “particularized need for disclosure that outweighs the need for secrecy.”

Daher replied by stating he needed the grand jury materials to refute that there was probable cause to indict him for a crime, and without it, he would not be able to win his malicious prosecution claim. The trial court judge, who was not the judge that presided over the grand jury proceedings, requested an in camera inspection of the material before ruling on whether to stop the subpoena.

The court reporter appealed the order to the Eighth District Court of Appeals. The Eighth District ruled the judge’s order was not a final, appealable order that the court could consider. Only if the judge required that the materials be disclosed to Daher could the Court review the case, the appellate court wrote.

The court reporter appealed the Eighth District’s decision to the Supreme Court, which agreed to hear the case.

Court Examines Law to Challenge Trial Court Decisions

Justice DeGenaro explained the court reporter raised two questions for the Court to consider. The reporter argued that under the rule stated in Petition for Disclosure of Evidence, Daher could not obtain a judge’s inspection of the grand jury materials by issuing a subpoena. The only way the grand jury materials could be disclosed outside of a criminal proceeding would be by filing a petition to the “supervising court” of the grand jury and demonstrating a particularized need for the information, the reporter maintained.

The court reporter also asserted that under R.C. 2502.02 (B)(4), an order by a judge to conduct the in camera inspection of grand jury proceedings is a final, appealable order.

The majority opinion stated that it must first examine the requirements of R.C. 2505.02(B)(4) to determine if the Eighth District had jurisdiction to consider the appeal at all before the Court could reach the merits of the appeal, specifically the question whether Daher could attempt to access the records by subpoena.

To qualify for immediate appellate review under R.C. 2502.02(B)(4), Justice DeGenaro wrote, “the court reporter must show that (1) the order grants or denies a provisional remedy, (2) the order in effect determines the action with respect to that provisional remedy, and (3) he would not be afforded meaningful review of the decision if he had to wait for final judgment.” The definition of “provisional remedy” includes the disclosure of confidential matters such as grand jury materials.

The court reporter argued the trial judge’s request to inspect the records is a decision that “determines the action” because it “implicitly sanctions the use of a civil subpoena to gain access to grand-jury materials.” The reporter asserted that disregard for the procedure stated in Petition for Disclosure of Evidence should be an order that can be appealed regardless of whether the materials are disclosed to Daher.

Judge’s Inspection Does Not Constitute Disclosure of Confidential Matters

The opinion stated that although disclosure of the grand jury materials to Daher would be a “provisional remedy,” an in camera inspection is a separate procedure that a judge can use prior to deciding whether to grant or deny that provisional remedy.

“We acknowledge the importance of the secrecy afforded to grand jury proceedings, which is meant ‘to protect witnesses from retaliation, to prevent tampering with witnesses who may be called to testify at a resulting trial, and to prevent publication of unwarranted charges against an innocent target,’ ” the opinion stated, citing the Court’s 1999 In re Special Grand Jury Investigation Concerning Organic Technologies decision.

A judge’s private review prior to any order to disclose grand jury materials does not compromise the secrecy of the grand jury, the Court stated, and the process must “trust judges” to keep confidential information confidential.

Justice DeGenaro explained that an in camera inspection offers the trial court an opportunity to review materials without compromising the confidentiality of the information and the review does not cause the materials to be disclosed to the parties, the attorneys in the case, or the public. The Court described the review as “only a minimal first step” in the process of resolving discovery disputes among parties in a lawsuit.

Only if a judge orders disclosure of the materials would the court reporter be able to use an immediate interlocutory appeal as a means to challenge the court’s action, the Court concluded, affirming the Eighth District’s decision.

Dissent Argues “Particularized Need” Must Be Demonstrated

In his dissent, Justice O’Donnell stated that the standard of showing a particularized need must be met by a party before allowing access to a grand jury transcript. He points out that having a judge first decide to release the information before a showing of particularized need is “backward.”

And he stated, “it is the hope of the majority that the trial court would be able to maintain the secrecy of a grand jury. Good luck with that!”

He also wrote that he agrees with the court reporter’s assertion that the only way to review a grand jury transcript is by demonstrating a particularized need, not issuing a subpoena and conducting an in camera review.

“The majority jurists will eventually come to see the folly of today’s opinion, but it will be too late to correct the damage caused by its ill-advised, hastily-considered judgment,” he concluded.

2017-0828. Daher v. Cuyahoga Community College Dist., Slip Opinion No. 2018-Ohio-4462.

The opinion can be found online at:

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

About the Supreme Court of Ohio

The Supreme Court is established by Article IV, Section 1 of the Ohio Constitution. Article IV, Section 2 of the Constitution sets the size of the Court and outlines its jurisdiction. Article IV, Section 5 of the Constitution grants rule making and other authority to the Court.

The Supreme Court is the court of last resort in Ohio. Most of its cases are appeals from the 12 district courts of appeals. The Court may grant leave to appeal felony cases from the courts of appeals and may direct a court of appeals to certify its record in any civil or misdemeanor case that the Court finds to be "of public or great general interest."

The Supreme Court also has appellate jurisdiction in cases involving questions arising under the Ohio or United States Constitutions, cases originating in the courts of appeals, and cases in which there have been conflicting opinions on the same question from two or more courts of appeals. The Supreme Court hears all cases in which the death penalty has been imposed. These cases currently include both appeals from courts of appeals affirming imposition of the death penalty by a trial court and, for capital crimes committed on or after Jan. 1, 1995, appeals taken directly from the trial courts. Finally, the Supreme Court's appellate jurisdiction extends to review of the actions of certain administrative agencies, including the Public Utilities Commission.

The Supreme Court has original jurisdiction to issue extraordinary writs. These include writs of habeas corpus (inquiring into the cause of an allegedly unlawful imprisonment or deprivation of custody), writs of mandamus (ordering a public official to perform a required act), writs of procedendo (compelling a lower court to proceed to judgment in a case), writs of prohibition (ordering a lower court to stop abusing or usurping judicial functions), and writs of quo warranto (issued against a person or corporation for usurpation, misuse, or abuse of public office or corporate office or franchise).

The Constitution grants the Supreme Court exclusive authority to regulate admission to the practice of law, the discipline of attorneys admitted to practice, and all other matters relating to the practice of law. In connection with this grant of authority, the Supreme Court has promulgated the Supreme Court Rules for the Government of the Bar of Ohio. These rules address, among other things, admission to practice, attorney discipline, attorney registration, continuing legal education, and unauthorized practice of law.

The Constitution also gives the Supreme Court authority to prescribe rules governing practice and procedure in all courts of the state and to exercise general superintendence over all state courts. Procedural rules promulgated by the Supreme Court become effective unless both houses of the General Assembly adopt a concurrent resolution of disapproval. Rules of superintendence over state courts set minimum standards for court administration. Unlike procedural rules, rules of superintendence do not have to be submitted to the General Assembly to become effective.

In connection with all of the rules for which it has responsibility, the Supreme Court generally solicits public comment before adopting new rules or amendments in final form. The Court first publishes its rules and amendments in proposed form. These proposals appear in both the Ohio State Bar Association Reports and the Ohio Official Advance Sheets and indicate the period open for comment and the staff member to whom comments should be directed. The Court reviews all comments submitted before it decides whether to adopt or amend a rule.

Pursuant to the Constitution, the Chief Justice or a Justice designated by the Chief Justice is responsible for ruling on the disqualification of appellate and common pleas court judges. The procedure for obtaining review of a claim of disqualification against an appellate or common pleas judge is commenced by the filing of an affidavit of disqualification with the Clerk of the Supreme Court. The Revised Code contains specific requirements governing the filing of affidavits of disqualification.

Article IV, Section 2 of the Constitution sets the size of the Court at seven -- a Chief Justice and six Justices, who are elected to six-year terms on a nonpartisan ballot. Two Justices are chosen at the general election in even-numbered years. In the year when the Chief Justice runs, voters pick three members of the Court.

A person must be an attorney with at least six years experience in the practice of law to be elected or appointed to the Supreme Court. Appointments are made by the Governor for vacancies that may occur between elections.

Date Published: November 29, 2018


Supreme Court of Ohio


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