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. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  2. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  3. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?

  4. I hope you dont mind but to answer my question. What amendment does this case pretain to?

  5. Research by William J Federer Chief Justice John Marshall commented May 9, 1833, on the pamphlet The Relation of Christianity to Civil Government in the United States written by Rev. Jasper Adams, President of the College of Charleston, South Carolina (The Papers of John Marshall, ed. Charles Hobson, Chapel Hill: Univ. of North Carolina Press, 2006, p, 278): "Reverend Sir, I am much indebted to you for the copy of your valuable sermon on the relation of Christianity to civil government preached before the convention of the Protestant Episcopal Church in Charleston, on the 13th of February last. I have read it with great attention and advantage. The documents annexed to the sermon certainly go far in sustaining the proposition which it is your purpose to establish. One great object of the colonial charters was avowedly the propagation of the Christian faith. Means have been employed to accomplish this object, and those means have been used by government..." John Marshall continued: "No person, I believe, questions the importance of religion to the happiness of man even during his existence in this world. It has at all times employed his most serious meditation, and had a decided influence on his conduct. The American population is entirely Christian, and with us, Christianity and Religion are identified. It would be strange, indeed, if with such a people, our institutions did not presuppose Christianity, and did not often refer to it, and exhibit relations with it. Legislation on the subject is admitted to require great delicacy, because freedom of conscience and respect for our religion both claim our most serious regard. You have allowed their full influence to both. With very great respect, I am Sir, your Obedt., J. Marshall."