Collier v. Reese

• Decision Date: 17 November 2009
• Docket Number: No. 106,817.,106,817.
• Citation: 223 P.3d 966,2009 OK 86
• Parties: Bryant COLLIER, Plaintiff/Appellant, v. Kermit E. REESE, Clay Jenkins, Skylar Carter, Isaac Costello, Chase Evans, David Jenkins, Debra Jenkins, Michael Costello, Vonita Costello, Eric Evans, and Cathy Evans, Defendants/Appellees.
• Court: Oklahoma Supreme Court

223 P.3d 966

2009 OK 86

Bryant COLLIER, Plaintiff/Appellant, v. Kermit E. REESE, Clay Jenkins, Skylar Carter, Isaac Costello, Chase Evans, David Jenkins, Debra Jenkins, Michael Costello, Vonita Costello, Eric Evans, and Cathy Evans, Defendants/Appellees.

No. 106,817.

Supreme Court of Oklahoma.

November 17, 2009.

Appeal from the District Court of Washington County; Russell Vaclaw, Trial Judge.

¶ 0 After the plaintiff/appellant, Bryant Collier, was involved in a fight with the defendant/appellee, Kermit Reese and his friends, Collier brought a civil assault and battery action against the alleged assailants. Reese and his friends accused Collier of starting the fight by shouting racial slurs and threatening that he had a knife. Collier and an eyewitness allegedly passed a lie detector (polygraph) test, and Collier filed the results of that test with the trial court. The trial court, Honorable Russell Vaclaw, issued an order: 1) sealing any documentation referring to the polygraph test results; 2) prohibiting public dissemination of the information; and 3) requiring that any future proffered evidentiary matters be pre-approved by the court as admissible evidence before filing. Collier appealed and we retained the cause. We hold that: 1) under the facts presented, the trial court's order sealing the record, and prohibiting dissemination of information and precluding future filing without court approval is an appealable interlocutory order; and 2) the trial court abused its discretion in issuing an overly broad order.

TRIAL COURT REVERSED; CAUSE REMANDED.

Ashley M. Bibb, Todd Tucker, Neil Van Dalsem, Tulsa, OK, for Appellant Bryant Collier.

Kevin D. Buchanan, Bartlesville, OK, for Appellee, Kermit E. Reese.

Kristi K. Sanders, Bartlesville, OK, for Appellees, Skylar Carter, and Chase, Eric, and Cathy Evans.

KAUGER, J.

¶ 1 The issue presented¹ is whether the appellant's freedom of speech rights were violated when the trial court entered a gag order which ordered that: 1) any matter in the record relating to polygraph evidence be sealed from the public, news media, or any other third person; 2) the parties were prohibited from disclosing the polygraph information to the public or news media; and 3) the parties could not in the future file evidentiary matters until or unless the court had determined that the proffered filings were admissible evidence. The questions presented on appeal are whether: 1) the trial court's order is appealable; and 2) the trial court erred in issuing the order. We hold that: 1) under the facts presented, the trial court's order sealing the record, prohibiting dissemination of information, and precluding future filing without court approval is an interlocutory appealable order; and 2) the trial court abused its discretion when it issued an overly broad order sealing the record, or prohibiting dissemination, and prohibiting future filing without court approval.

FACTS

¶ 2 On June 12, 2008, the plaintiff/appellant, Bryant Collier (Collier) was involved in a fight with the defendants/appellees, Kermit Reese, Clay Jenkins, Skylar Carter, Isaac Costello, and Chase Evans (collectively Reese and his friends) at a fast food restaurant in Bartlesville, Oklahoma. The record contains very few details regarding what happened before, during, or after the fight. However, it is clear that afterwards, Reese and his friends alleged that Collier started the fight by using a racial slur and threatening that he had a knife.

¶ 3 After the altercation, the District Attorney filed criminal charges against Reese and Skylar Carter alleging aggravated assault and battery.² The District Attorney also charged Collier with malicious harassment pursuant to 12 O.S.2001 § 850.³ On July 2, 2008, Collier sued Reese and his friends in Washington County District Court for the intentional torts of assault and battery.⁴ He sought damages for injuries, medical treatment, pain and suffering, and loss of income from the alleged assault and battery. One defendant, Clay Jenkins, also filed a counterclaim for assault and battery against Collier. He alleged that Collier had made two attempts to run over Jenkins with his vehicle two years earlier.

¶ 4 Collier insisted that both he and an eyewitness to the fight passed a lie detector test (lie detector/polygraph) which confirmed that he had not used the alleged racial slur or threatened the use of a knife to provoke the defendants. On August 22, 2008, Collier filed a motion to introduce the polygraph examination results as reliable scientific evidence. He also sought a Daubert hearing⁵ on the admissibility of the test results. Three days later, Reese filed a motion to seal all portions of the record which disclosed any of the information related to the polygraph examination or its results because such evidence is inadmissible. Reese also sought to prohibit any dissemination of the information to the public or news media. He insisted that Collier's lawyer had been making comments to the Bartlesville Examiner-Enterprise regarding the test results and that such dissemination would have a prejudicial effect on both the civil and criminal cases.

¶ 5 On August 25, 2008, the trial court issued an ex parte immediate order sealing the polygraph evidence in the record and prohibiting any public dissemination of it until further order of the Court. The court also set the matter for hearing on September 18, 2008. On September 2, 2008, Reese filed a motion to stay the civil proceedings until his criminal case was resolved. He also alleged that Collier was attempting to use the civil suit to influence the outcome of the criminal cases. On September 9, 2008, Reese filed an application for contempt against Collier's attorney for filing unsealed documents in an attempt to get information to the Bartlesville newspaper. The trial court also set the contempt hearing for September 18, 2008. Collier responded by seeking to vacate the ex parte order which sealed portions of the record and precluded dissemination of the test results to the public. He also demanded a jury trial concerning the contempt citation.

¶ 6 The matter culminated in a hearing on September 18, 2008. At the hearing, Reese argued that: 1) polygraph evidence is always inadmissible; 2) leaking the lie detector test results would materially prejudice the potential jury pool in both the criminal and civil cases; and 3) presenting the results to the court was merely an attempt to get them printed in the newspaper. Collier countered that he at least deserved the opportunity to present evidence to overcome the presumption that polygraph tests are unreliable and inadmissible. He also pointed out that a newspaper article had already been written portraying him as a racist and that he took the lie detector test to counter the public allegation. According to Collier, immediately after the incident, his picture was "all over the Bartlesville paper with the Confederate flag hanging in front of him."⁶ However, no newspaper articles appear in the record and apparently were not submitted to the Court.

¶ 7 After the hearing, the trial court, in three separate orders filed January 16, 2009: 1) stayed the civil cause, including discovery, until March 12, 2009; 2) set a Daubert hearing date of March 12, 2009, to determine the possible admissibility of the polygraph evidence; 3) ordered any document referencing the polygraph evidence be sealed and kept from public and media view until further order of the court; 4) prohibited dissemination of any information contained in the sealed record to the public, the press or any other third parties until further order of the court; and 5) required future proffered evidentiary matters be approved by the court as admissible evidence before filing.

¶ 8 Collier appealed, arguing that the district court's order which sealed the record, prohibited dissemination, and required approval of all proffered evidentiary materials constituted an unconstitutional gag order/prior restraint which denied his right to defend himself and refute public allegations.⁷ We retained the cause on August 25, 2009.

I.

¶ 9 UNDER THE FACTS PRESENTED, THE TRIAL COURT'S ORDER SEALING THE RECORD, PROHIBITING DISSEMINATION OF INFORMATION, AND PRECLUDING FUTURE FILING WITHOUT COURT APPROVAL IS AN APPEALABLE INTERLOCUTORY ORDER.

¶ 10 Reese and his friends assert that the order sealing the record is not appealable because it is not a final, appealable order or a certified interlocutory order.⁸ However, Collier brought this cause as an appeal of the granting of a temporary injunction which is an interlocutory order appealable by right pursuant to Oklahoma Supreme Court Rule 1.60, 12 O.S.2001 Ch. 15, App. 1.⁹

¶ 11 Title 12 O.S.2001 § 1381 defines an injunction as a command to refrain from a particular act. It may be the final judgment in an action, or may be allowed as a provisional remedy, and, when so allowed, it shall be by order.¹⁰ Under the facts of this case, given the breadth of the order that requires all polygraph related documents to be sealed until further order of the court, prohibits dissemination of polygraph information to anyone and everyone, and enjoins all future filings without court approval, we agree that the order meets the functional equivalent of an injunction. While the motion to seal the record was not labeled an "injunction,"¹¹ and the trial court did not follow any of the formalities for granting an injunction, the nature of the relief sought¹² and the nature of the relief actually given was injunctive.¹³ Accordingly, under these facts, we hold that the order is an appealable interlocutory order,¹⁴ and we apply the same standard of review imposed for the issuance of a temporary injunction. That standard is whether the trial court abused its discretion or entered a decision against the evidence.¹⁵

II.

¶ 12 THE TRIAL COURT ABUSED ITS DISCRETION IN ISSUING AN OVERLY BROAD ORDER SEALING THE RECORD, PROHIBITING...