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Court won't remove trial judge in Simon case

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The Indiana Court of Appeals has dismissed an appeal filed by Melvin Simon’s widow, finding that it doesn’t have jurisdiction to remove a Hamilton Superior judge from the case involving the late mall-magnate’s estate valued at more than $2 billion.

Bren Simon had petitioned the appeals court to remove Hamilton Superior Judge William J. Hughes after he removed her as interim trustee over her late husband's estate and appointed former Indiana Supreme Court Justice Theodore Boehm. She’d lost one appeal in April after the appellate court dismissed her arguments about her removal, but Simon also challenged the judge’s presiding over the case and making that decision in the first place.

In this appeal, she argued Hughes should have recused himself because he’d briefly hired two attorneys from Bingham McHale to represent him on his out-of-state drunk driving case, and that same firm represented Simon Property Group on related estate matters.

But in a 21-page decision Thursday, appellate Judges Edward Najam and Melissa May disagreed with Simon and dismissed the appeal. They determined that once Simon was removed as interim trustee, she lost the ability to prosecute any appeal and that ability fell to her appointed successor. They noted that Simon was not a party in her individual capacity in the trial court.

 “Accordingly, we hold that Bren lacks standing to maintain this appeal in either a representative capacity or an individual capacity. Thus, we are without jurisdiction to consider this appeal on the merits,” Najam wrote.

They relied on Weiland v. Scheuch, 123 Ind. App. 421, 422-23, 111 N.E.2d 664, 664 (1953), that found a personal representative can’t prosecute an appeal of the removal order after that person has already been removed . By extension, as in Simon’s case, the removed trustee can’t later appeal a collateral order such as the trial judge’s refusal to recuse himself.

Judge Patricia Riley dissented and said the majority’s decision dismissing the interlocutory appeal is “a disservice to justice,” and that their entire operational premise is wrong. She found that Simon isn’t appealing Hughes’ removal order, but instead is appealing his earlier order in which he refused to recuse himself.

Riley pointed out that by removing someone as trustee and cutting off their standing to appeal, a trial court could effectively shield itself from judicial scrutiny by removing or dismissing a party seeking the trial court’s recusal.

“Based on the facts before us, I conclude that Bren has standing to bring this appeal as she is aggrieved by Judge Hughes' refusal to recuse himself,” she wrote, citing state statutes that allow for aggrieved parties to appeal a court decision. “In reaching this conclusion, the majority clearly affirmed Appellees’ argument which was raised as a red herring in their brief to obscure the pertinent issue before us. Unfortunately, the majority took the bait.”

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  1. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

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  4. JLAP and other courtiers ... Those running court systems, have most substance abuse issues. Probably self medicating to cover conscience issues arising out of acts furthering govt corruption

  5. I whole-heartedly agree with Doug Church's comment, above. Indiana lawyers were especially fortunate to benefit from Tom Pyrz' leadership and foresight at a time when there has been unprecedented change in the legal profession. Consider how dramatically computer technology and its role in the practice of law have changed over the last 25 years. The impact of the great recession of 2008 dramatically changed the composition and structure of law firms across the country. Economic pressures altered what had long been a routine, robust annual recruitment process for law students and recent law school graduates. That has, in turn, impacted law school enrollment across the country, placing upward pressure on law school tuition. The internet continues to drive significant changes in the provision of legal services in both public and private sectors. The ISBA has worked to make quality legal representation accessible and affordable for all who need it and to raise general public understanding of Indiana laws and procedures. How difficult it would have been to tackle each of these issues without Tom's leadership. Tom has set the tone for positive change at the ISBA to meet the evolving practice needs of lawyers of all backgrounds and ages. He has led the organization with vision, patience, flexibility, commitment, thoughtfulness & even humor. He will, indeed, be a tough act to follow. Thank you, Tom, for all you've done and all the energy you've invested in making the ISBA an excellent, progressive, highly responsive, all-inclusive, respectful & respected professional association during his tenure there.

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