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Environmental groups ask Massa to recuse from Rockport case

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Justice Mark Massa should recuse himself from hearing an Indiana Supreme Court appeal of a ruling that hindered a proposed multi-billion-dollar coal gasification plant in Rockport, several environmental and consumer groups argue in a brief filed in the case.

Massa’s 27-year relationship with project manager Mark Lubbers “would cause any ordinary objective observer to question whether he can remain impartial,” according to the motion for disqualification filed by Florida attorney Jerome Polk on behalf of Sierra Club, Citizens Action Coalition, Spencer County Citizens for Quality of Life and Save the Valley.

Massa so far has said nothing publicly about calls for his recusal, and Supreme Court spokeswoman Kathryn Dolan said Wednesday Massa had no immediate response to the motion filed Tuesday.

“He is not required to reply to the motion,” Dolan said. “The code of judicial conduct prevents Justice Massa from commenting.” She said there was no immediate indication whether Massa would or would not disqualify himself from the case.

The motion also argues that proof of actual bias isn’t a prerequisite for recusal, citing as one precedent former Chief Justice Randall Shepard’s removal from former heavyweight champion Mike Tyson’s rape conviction appeal.

The brief also argues that “Lubbers has his personal fortune at stake in the outcome of this proceeding,” having been involved in the $2.7 billion project championed by former Gov. Mitch Daniels.  

Massa, a Daniels appointee to the Supreme Court who previously served as the former governor’s chief counsel, was hired in 1985 by Lubbers as a speechwriter for then-Gov. Robert Orr. Lubbers now is project manager for Rockport developer Indiana Gasification LLC’s parent, hedge fund Leucadia National Corp.

After the legislature earlier this year passed a bill that left the fate of the plant in the hands of the justices, creating the likelihood of a new round of state regulatory review, Lubbers announced that Indiana Gasification was suspending work on the project.

The motion cites an open letter from Lubbers to the media dated April 30 that said in part, “We will work hard for a win if the Supreme Court takes the case. … If the Supreme Court does not take the case, the project is dead … If the Supreme Court takes the case, we think we have a good chance of winning.”

Polk argues in the brief that Lubbers’ letter “is a clear ‘roadmap’ with his personal imprimatur stamped on it for how the Supreme Court could and should decide the case in order to give the project a chance. It reads like a personal message from Lubbers to Justice Massa which squarely puts the Court ‘on the spot’ to help Justice Massa’s mentor and benefactor.”

The brief also argues that the absence of Massa’s recusal to date despite widespread calls raises questions about his impartiality.

“This is a high-profile proceeding and the decision on whether or not Justice Massa should recuse is not just a question that Hoosiers will ask, but also a question as to what other States will say when they look to Indiana,” the motion asserts.

Exhibits establishing the connection between Lubbers and Massa and other arguments supporting the motion include copies of Lubbers’ comments at Massa’s formal robing ceremony, letters and emails from Lubbers to reporters, and media reports.




 








 

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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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