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. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.