State v. Port Clinton Fisheries, Inc.

465 N.E.2d 865, 12 Ohio St. 3d 114, 12 Ohio B. 157, 1984 Ohio LEXIS 1181

• Court: Ohio Supreme Court
• Decided: July 18, 1984
• Docket: No. 83-1396
• Status: Published

Opinions

J.P. Celebrezze, J.

This appeal presents the issue of whether a trial court order which requires the state to disclose the identities of confidential informants is a final appealable order. For the reasons set forth below we conclude that it is such an order, and thus is subject to immediate appellate review. Accordingly we reverse the holding of the court of appeals and remand for further proceedings.

The courts of appeals have jurisdiction to review final orders of inferior tribunals within their respective districts. Section 3(B)(2), Article IV of the Ohio Constitution; R.C. 2505.03. R.C. 2505.02 provides, in pertinent part, that a final order is one “* * * affecting a substantial right made in a special proceeding * * *.” Initially we must determine whether an order to compel disclosure of the identities of the state’s confidential informants affects a substantial right.

The government’s qualified privilege to withhold from disclosure the names of informants in criminal cases is well-recognized. Roviaro v. United States (1957), 353 U.S. 53; State v. Williams (1983), 4 Ohio St. 3d 74, 76. The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. Roviaro v. United States, supra, at 59. The promise of anonymity to informants encourages the flow of information vital to detection and prosecution of criminal activity. The state is also charged with the duty to protect the public from other illegal, but not necessarily criminal, activities, including protecting the environment, ensuring the safety of the workplace, and, as in the case sub judice, conserving wildlife. Confidential informants are often vital to the enforcement of these laws as well. The same considerations which justify the privilege in a criminal proceeding dictate that it be applicable in this civil action as well. Cf. Wirtz v. Continental Finance & Loan Co. (C.A. 5, 1962), 326 F. 2d 561. We believe that the government may assert the right to withhold the identities of informants in civil actions brought by the state pursuant to its police powers to protect a public trust.

Society has a substantial right to effectively enforce its laws. An order which may severely curtail the state’s ability to detect and prosecute violations of law adversely affects that right. State v. Collins (1970), 24 Ohio St. 2d 107 [53 O.O.2d 302]. Accordingly, a trial court order requiring the disclosure of the identity of the government’s confidential informant affects a substantial right.

The second determination to be made is whether the order was made in a “special proceeding.” Although no statutory definition is provided, the relevant case law provides that the issue of whether an order is made in a special proceeding is resolved through a practical determination which balances the need for effective and prompt disposition of litigation with the necessity for immediate review because post-judgment appeal is not practicable. Amato v. General Motors Corp. (1981), 67 Ohio St. 2d 253, 258 [21 O.O.3d 158]; Columbus v. Adams (1984), 10 Ohio St. 3d 57, 59. In most civil proceedings, the concern for the prompt and orderly disposition of litigation is paramount, thus prohibiting interlocutory appeals. State, ex rel. Celebrezze, v.K & S Circuits, Inc. (1983), 6 Ohio St. 3d 354, 356.

This court has consistently held that discovery proceedings are not considered to be special proceedings and thus are not final appealable orders. Kennedy v. Chalfin (1974), 38 Ohio St. 2d 85 [67 O.O.2d 90]; Klein v. Bendix-Westinghouse Co. (1968), 13 Ohio St. 2d 85 [42 O.O.2d 283]. Appellant contends, however, that unlike other discovery orders, an order to compel disclosure of the identity of a confidential informant meets the Amato test of a special proceeding, and therefore should be an exception to the general rule prohibiting interlocutory appeals of discovery orders.

Appellant correctly points out that once the identity of a confidential informant is made public, no appeal can ever remedy the harm of that disclosure. In Columbus v. Adams, supra, at 60, this court stated “* * * when an appeal after judgment is impracticable there must be a stronger and more compelling need shown to foreclose immediate appellate review.” Appellees contend that allowance of an appeal will interfere with the prompt disposition of litigation and will unduly burden judicial resources.¹ We believe that whatever delay such an appeal may or may not occasion is clearly outweighed by the prospect of complete foreclosure of any meaningful review of an order with such a significant impact on the effective enforcement of the law.

Accordingly, we hold that a trial court order compelling the government to disclose the identity of a confidential informant is a final appealable order.

For the foregoing reasons, the judgment of the court of appeals is reversed and the cause is remanded to that court for further proceedings.

Judgment reversed and cause remanded.

Sweeney, Locher and C. Brown, JJ., concur. Holmes, J., concurs separately. Celebrezze, C.J., dissents. W. Brown, J., dissents separately.

1 Appellees suggest that appellant may obtain effective review by failing to comply with the order to disclose, and then perfecting an appeal from the order imposing sanctions. Needless to say, this course would no more further the goal of prompt disposition of litigation than would the allowance of an immediate appeal. The appellate court would still be required to hear the cause, and the trial court would be required to pass on an additional matter, i.e., the appropriate sanction for failure to comply.