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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. Video pen? Nice work, "JW"! Let this be a lesson and a caution to all disgruntled ex-spouses (or soon-to-be ex-spouses) . . . you may think that altercation is going to get you some satisfaction . . . it will not.

  2. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  3. wow is this a bunch of bs! i know the facts!

  4. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  5. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

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