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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. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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