Why Harold Simmons’ will should not be sealed

By Paul Watler
Column published in The Dallas Morning News
Jan. 27, 2014

The executor of the estate of billionaire Harold Simmons has asked a Dallas County probate court to seal the late billionaire’s will and probate file. The papers should be closed because people who disagree with Simmons’ controversial political activity might want to have a look, according to the motion. No one but his widow and sole heir has a legitimate need to review the probate file, the court was told.

The motion also cited the privacy and safety of his beneficiary and security of estate assets to justify the request to seal. No doubt, such apprehensions deserve careful consideration and, where appropriate, a remedy by the court.

Yet is there a case for denying the sealing request in the public interest? Should a court grant such a request as a matter of routine because, in essence, the deceased was controversial, the assets are substantial and wealthy heirs must live in an uncertain world?

Texas law has an answer to these questions. It presumes that court records are public and access may be denied only for a compelling personal interest that outweighs the public interest in open courts. It also requires that sealing be the least restrictive means of protecting the personal interest in restricting public access.

“What transpires in the courtroom is public property,” the U.S. Supreme Court declared more than 65 years ago in a case originating in a Texas courthouse.

The reason is obvious. The people, who fund the courts and elect judges to preside over them, have a critical interest in the proper functioning of public justice. Open-court provisions embody the Jeffersonian conviction that a limit on public access is repugnant to the spirit of our democratic institutions. A Kansas judge wrote more than 100 years ago, “Open court not only benefits particular parties to litigation, but it also helps keep the administration of justice honest.”

In probate cases, the sovereign authority of the state is invoked to settle the deceased person’s affairs. Open probate proceedings dispatch false claims and dispel opportunity for fraud. This is public justice, not merely a private business transaction.

Former Texas Supreme Court Justice Lloyd Doggett, who was instrumental in the adoption of the open court records rule in the 1990s, recognized that “certain types of privacy, economic and governmental interests may merit protection through sealing” on a case-by-case basis. Recently, our Supreme Court adopted a new rule designed to safeguard just such interests. Sensitive data, including Social Security, driver’s license, bank account and credit card numbers, are to be redacted from court filings. This raises the question of what remains to be sealed in the Simmons probate case.

Moreover, the Texas Legislature has made significant privacy protections available during the estate planning process. In certain cases, an executor may submit an affidavit in lieu of a detailed public inventory of estate assets. The affidavit verifies that the inventory has been provided directly to all beneficiaries. Simmons certainly had available to him the best estate planning advice. If he chose not to implement such privacy measures, is sealing truly the least restrictive means available to protect that interest?

Doggett observed that “generalized claims” do not meet the stringent standards for sealing. The Simmons motion identifies only a general concern for personal safety inherent in a probate case involving an extremely wealthy and high-profile individual. Unless there is to be one rule for sealed proceedings in such cases and another for open access in every other, the case for open court records should prevail.

Dallas attorney Paul Watler, who often represents The Dallas Morning News, is a director and former president of the Freedom of Information Foundation of Texas. The opinions are solely those of the author. He can be reached at pwatler@sbcglobal.net.