State v. GillispieState v. Gillispie
PER CURIAM:
{¶ 1} This matter is before the court on the State of Ohio‘s March 26, 2020 motion for leave to appeal pursuant to
{¶ 2} The State of Ohio, through the prosecuting attorney, seeks leave to appeal an order regarding the anticipated disclosure of grand jury testimony given in a resolved criminal case against Gillispie. The 1990 case was resolved in 2016, when this court
{¶ 3} The State‘s appeal is taken pursuant to
A prosecuting attorney * * * may appeal as a matter of right any decision of a trial court in a criminal case, * * * which decision grants a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, or a motion for the return of seized property or grants post conviction relief pursuant to sections
2953.21 to2953.24 of the Revised Code, and may appeal by leave of the court to which the appeal is taken any other decision, except the final verdict, of the trial court in a criminal case * * *.
(Emphasis added.)
{¶ 4} A discretionary appeal by the prosecuting attorney must satisfy the procedural requirements of
Motion by Prosecution for Leave to Appeal. When leave is sought by the prosecution from the court of appeals to appeal an order of the trial court, a motion for leave to appeal shall be filed with the court of appeals within thirty days from the entry of the order sought to be appealed (or, if that order is not a final order, within thirty days of the final order into which it merges) and shall
set forth the errors that the movant claims occurred in the proceedings of the trial court.
Leave is Required
{¶ 5} Initially, Gillispie argues that the matter before the trial court is “civil in nature and not * * * part of any criminal prosecution or case,” and that
{¶ 6} Gillispie‘s main argument is that the order on appeal is interlocutory and cannot be appealed by the State. While
The March 16 Entry on Appeal
{¶ 7} The March 16, 2020 Entry on appeal here is entitled “Entry (1) Finding Preliminary Showing of Particularized Need; (2) Ordering In Camera Review; (3) Granting Motion to Intervene; and (4) Setting Telephone Scheduling Conference.” It partially
{¶ 8} The trial court had previously ordered the State to have all grand jury witness testimony transcribed and delivered to the court for an in camera inspection. See Entry and Order (Sep. 26, 2019). Upon the court‘s in camera review of the testimony, the court issued the March 16 Entry detailing its findings and setting out the next steps. With respect to three of the four witnesses’ testimony, the trial court found “that Mr. Gillispie has made a preliminary showing of particularized need for the Grand Jury testimony of the three rape victims, namely S.C., C.S. and B.T.”
{¶ 9} With respect to the fourth witness, the trial court said:
The Court will permit Mr. Gillispie to argue for disclosure of Det. Moore‘s Grand Jury transcript at this Court‘s future hearing as to “particularized need” for Det. Moore‘s Grand Jury transcript as it relates to the State Law claims.
March 16 Entry, p.1. The court continued:
Having met the threshold “particularized need” requirement for disclosure of the Grand Jury testimony of the three rape victims and the likelihood Mr. Gillispie can do so with respect to Det. Moore‘s Grand Jury testimony as it relates to Mr. Gillispie‘s State Law claims, the Court hereby sets a TELEPHONE CONFERENCE with counsel for the parties on MARCH 26, 2020 AT 10:45 A.M.
The courtroom will be closed to the public during the hearing. During the hearing, the Court will allow counsel for the parties to review the four transcripts. Thereafter, the Court will hear arguments on the issues of: (1) any
particularized need for Det. Moore‘s Grand Jury testimony as it relates to Mr. Gillispie‘s State Law claims or exceptions, if any, to Det. Moore‘s apparent Federal Immunity from disclosure of his Grand Jury testimony for purposes of the 1983 claims; (2) whether the particularized need for the Grand Jury testimony of the four witnesses outweighs the need for secrecy; and (3) what protective orders, if any, the Court should fashion regarding the Grand Jury testimony.
(Emphasis added.) March 16 Entry, p. 3-4 (footnotes omitted). The closed hearing was scheduled for June 4, 2020, but was stayed by this court.
Provisional Remedy
{¶ 10} The State argues that the March 16 Entry is final under the provisional remedy definition contained in
{¶ 11} This court has held that the main action must exist when the ancillary proceeding is sought. See State v. Pierce, 2d Dist. Montgomery No. 25199, 2013-Ohio-1372, ¶ 16 (holding that defendant‘s “motion requesting the release of the grand jury transcripts is not a ‘provisional remedy’ as defined by
{¶ 12} In Gehm, a third-party sought “to intervene for the purpose of establishing a record in a separate action.” Id. at paragraph one of the syllabus. The Court found that this did not qualify as a provisional remedy:
Westfield cites no authority for the assertion that an ancillary proceeding for the purposes of a provisional remedy may be used to aid a case other than the attendant, underlying action. Indeed, the law is the opposite.
The examples of an ancillary proceeding listed in
R.C. 2505.02(A)(3) include “preliminary injunction, attachment, discovery of privileged matter, suppression of evidence.” All these examples pertain only to the underlying action. We therefore hold that a motion to intervene for the purpose of establishing a record in a separate action is not an ancillary proceeding to an action and does not qualify as a provisional remedy for the purposes ofR.C. 2505.02 .
{¶ 13} We similarly question whether the dispute currently before the trial court qualifies as a provisional remedy, in that it appears to have been filed to aid in Gillispie‘s federal case, rather than the underlying, closed criminal case. See Petitioner‘s Motion for Disclosure of Grand Jury Test[i]mony (May 30, 2019), p.1-2 (explaining how he intends to
{¶ 14} Both parties cite the Supreme Court of Ohio‘s decision in Daher v. Cuyahoga Community College Dist., which appears to accept the proposition that an attempt to obtain grand jury materials can produce a provisional-remedy order when the materials are ordered to be provided to the requestor. Daher, 155 Ohio St.3d 271, 2018-Ohio-4462, 120 N.E.3d 830, ¶ 14. In Daher, however, the attempt to obtain grand jury materials was ancillary to the case then pending before the trial court: a civil action in which Daher sued his former employer for employment discrimination, retaliation, and malicious prosecution. Id. at ¶ 2. Daher sought to obtain grand jury materials from his dismissed criminal prosecution for unauthorized use of property by sending a subpoena (from his civil case) to the court reporter in the criminal grand jury proceedings. Id. at ¶ 3. He sought to use the materials to prove that civil case. Daher represents the typical conception of a provisional remedy: a proceeding that happens aside and along the way to judgment in a pending case, which produces an order that has such an impact that the legislature decided it can be appealed when entered, rather than waiting until a final judgment at the end of the case. The parties have not pointed us to any cases where a provisional remedy was found after judgment.
(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy [and]
(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.
{¶ 16} The March 16 Entry does not grant or deny the request for grand jury transcripts that is currently before the trial court. In his motion, Gillispie asked the trial court “for an Order allowing him to inspect and copy documents and transcripts obtained during certain grand jury proceedings,” and “an order permitting him to obtain a copy of the grand jury transcripts from his criminal proceedings, which he seeks to use in support of his [federal] claims.” Motion for Transcripts, p.1, 2. The court has decided that Gillispie‘s counsel (and apparently all other counsel) will be allowed to review the transcripts in a closed hearing to argue whether
{¶ 17} The second element – that the order in effect determines the provisional remedy proceeding and prevents a judgment in favor of the State – is also not satisfied. The March 16 Entry does not determine the provisional remedy, i.e., whether the grand jury transcripts will be released. We note that this is not a question of whether the trial court has ordered some preliminary step to be taken or whether the order is correct. Daher at ¶ 9-10. The question is whether the proceeding has been effectively determined. See Muncie at ¶ 447-448 (a provisional remedy is defined “as a type of proceeding” not an order entered in that proceeding). As discussed above, this ancillary proceeding has not yet been determined.
{¶ 18} Daher is instructive on this element. There, the Supreme Court distinguished between an order for disclosure and an order for in camera review, noting that the “trial court‘s in camera review does not cause the materials to be disclosed to the parties, the attorneys, or the public.” Id. at ¶ 11. “Only after the trial court denies the motion to quash and orders its court reporter to comply with the subpoena and disclose the sought-after materials to Daher would appellate review be available to the court reporter as an avenue to seek relief.” Id. at ¶ 14. The court noted that the court‘s in camera review ” ‘is only a minimal first step’ * * * in a procedure culminating in a decision to grant or deny a provisional remedy; it is not the provisional remedy itself.” Id. at ¶ 12, quoting State ex rel. Grandview Hosp. & Med. Ctr. v. Gorman, 51 Ohio St.3d 94, 95, 554 N.E.2d 1297 (1990).
{¶ 20} Nor does the March 16 Entry “prevent[] a judgment in the action in favor of the appealing party with respect to the provisional remedy.”
{¶ 21} We are cognizant of the State‘s argument and the dissent‘s concerns that once the transcripts are made available to counsel, the secrecy of the grand jury proceedings will have been irreparably breached. This is a credible argument that
{¶ 22} The concerns of the dissent in this respect are very real – regardless of whether our analysis of the final order statute is an ill-advised academic exercise (however
{¶ 23} We also have concerns about the March 16 Entry and the procedure therein that allows possible premature disclosure without appellate review and without other protections in place to safeguard the grand jury testimony. See, e.g., State v. Glenn, 2d Dist. Montgomery No. 28736 (Decision and Final Judgment Entry, Mar. 6, 2020) (dismissing appeal while expressing concern about correctness of the order on appeal). But, as the majority in Daher recognized, the jurisdictional inquiry must be answered before reaching the merits. Daher, 155 Ohio St.3d 271, 2018-Ohio-4462, 120 N.E.3d 830, at ¶ 16 (“We are bound by
{¶ 24} And while it is true that the trial court has indicated it will consider some procedures for safeguarding any released testimony, those have not been formalized and are not before us on the pending motions. Whether there is a process, perhaps similar to protections afforded in litigation involving trade secrets or arguably-confidential or privileged communications is a matter for the trial court in the first instance.
{¶ 25} In this matter, we conclude that the March 16 Entry is not final and appealable under
{¶ 26} The State has not convinced us that the order before us is final and appealable at this time. We have no jurisdiction to review an order or judgment that is not final, and this appeal must therefore be dismissed. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989).
{¶ 27} We find Gillispie‘s motion to dismiss well-taken and SUSTAIN it. The State‘s motion for leave to appeal is OVERRULED for lack of jurisdiction. David Owens‘s motion for leave to appear pro hac vice is OVERRULED as moot. This matter, Montgomery Appellate Case No. 28766, is DISMISSED.
{¶ 28} Pursuant to
SO ORDERED.
MARY E. DONOVAN, Judge
JEFFREY E. FROELICH, Judge
{¶ 29} In my opinion this court‘s failure to accept and decide the appeal at this juncture is plainly wrong and I dissent.
{¶ 30} The trial court has determined that the Gillispie “has made a preliminary showing of particularized need for the Grand Jury testimony of the three rape victims, namely S.C., C.S. and B.T.” March 16 Entry, p.1. The court has also determined that there is a “likelihood” that Gillispie will be able to show a particularized need for release of the grand jury testimony of Det. Moore. Id., p.3. In that regard, the trial court has ordered a hearing and “[d]uring the hearing, the Court will allow counsel for the parties to review the four transcripts.” Id.
{¶ 31} The majority‘s apparently unresolved query about whether the trial court‘s order is appealable because it involves disclosure for a federal civil case after judgment in the underlying docketed criminal case under appeal is a distraction. Assume for the moment that the trial court‘s order was for the release of grand jury testimony to Gillispie (which in my opinion it is). There would be no question that such an order should be and is appealable. Grand jury testimony and materials are secret and if an order for their release is not appealable, before the release actually occurs, then the entire history of Ohio jurisprudence on the subject might as well be ignored. Whether the release is for the ongoing criminal case, or another criminal case, or some potential Ohio civil case, or a pending federal case does not matter. See, e.g., In re Petition for Disclosure of Evidence Presented to Franklin County Grand Juries in 1970, 63 Ohio St.2d 212, 218-219, 407 N.E.2d 513 (1980) (in an application to release Ohio grand jury testimony for use in a civil case in Colorado Federal District Court that had been transferred from Ohio Federal District Court: “We hold that a
{¶ 32} The majority concludes that allowing Gillispie‘s counsel to peek at the transcripts does not determine the action. I disagree. That is a release of the information nonetheless. If it‘s not, then every applicant for release of grand jury testimony should be entitled to peek at the transcript to determine whether their pursuit of the testimony is worth pursuing further, and the well-protected secrecy of grand jury testimony will be compromised. The majority suggests that Daher, 155 Ohio St.3d 271, 2018-Ohio-4462, 120 N.E.3d 830, held that an order for an in camera inspection of grand jury testimony is not a final order. I do not disagree. But there the Supreme Court was referring to an in camera inspection by the court, not a review of the transcripts by all counsel. Nothing in Daher indicates that inspection of grand jury transcripts by the Gillispie‘s counsel is not a final appealable order.
{¶ 33} Justice O‘Donnell, in his dissent in Daher, recognized the risk associated with production of grand jury transcripts and inspection even with in camera inspection by the court. I repeat his sentiment that is more applicable here where the ordered secondary inspection is by counsel. “And, it is the hope of the majority that the trial court would be able to maintain the secrecy of the grand jury. Good luck with that!” Id. at ¶ 20 (O‘Donnell, J., dissenting.)
{¶ 34} Because I believe that allowing counsel for Gillispie to inspect grand jury testimony is tantamount to release of that testimony, the trial court‘s order effectively
MICHAEL T. HALL, Judge
Copies to:
Andrew French 301 W. Third Street, 5th Floor Dayton, Ohio 45422 Attorney for Appellant, State of Ohio
Michelle Berry 114 East 8th Street Cincinnati, Ohio 45202 Attorney for Appellee, Roger Gillispie
and
Michelle Berry 3584 Mooney Avenue Cincinnati, Ohio 45208 Attorney for Appellee, Roger Gillispie
Mark Godsey P.O. Box 210040 University of Cincinnati College of Law Cincinnati, Ohio 45221 Attorney for Appellee, Roger Gillispie
Todd Raskin Jeffrey Kay Frank Scialdone Cara Wright 100 Franklin‘s Row 34305 Solon Road Cleveland, Ohio 44139 Attorneys for Appellee, Matthew Scott Moore
Edward Dowd Dawn Frick Christopher Herman 8163 Old Yankee Street, Suite C Dayton, Ohio 45458 Attorneys for Appellee, Miami Township, Ohio
Hon. Steven K. Dankof Montgomery County Common Pleas Court 41 N. Perry Street Dayton, Ohio 45422
Courtesy copies to:
David Owens Michael Kanovitz 311 N. Aberdeen Street, 3rd Floor Chicago, IL 60607
Leon Daidone Anne Jagielski 301 W. Third Street, 5th Floor Dayton, Ohio 45422
CA3/KY