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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. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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