Massa mum on Rockport recusal

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One of the first cases on the Indiana Supreme Court’s fall oral argument calendar also could be among its most controversial and biggest in terms of potential dollars at stake.

Justices may determine the fate of a proposed $2.7 billion Rockport coal gasification plant championed by former Gov. Mitch Daniels. A divided Court of Appeals has voided a key state contract, and lawmakers this year in the session’s waning days reversed course in their support for the plant, prompting developers to announce a suspension of work on the project.

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The appeal, Indiana Gas Company, Inc. v. Indiana Finance Authority, 93S02-1306-EX-407, is set for oral argument at 9 a.m. Sept. 5. But outside the arguments in court, an argument is brewing in the court of public opinion: whether Justice Mark Massa is too close to one of the key players and therefore should disqualify himself.

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

Lubbers spoke at Massa’s robing ceremony in May 2012 and talked about hiring Massa. “Thus began, 27 years ago, a web of opportunities and relationships that would culminate here this afternoon,” Lubbers said during the ceremony.

Massa hasn’t spoken publicly about his intentions, and Supreme Court spokeswoman Kathryn Dolan said judicial canons forbid him from commenting on a pending case. But Massa has drawn criticism in newspaper editorial pages, from plant opponents and other quarters for failing to step aside already.

Dolan said Massa hasn’t indicated whether he will or won’t hear the case.

“Whatever decision any justice makes about recusal in any case, there is no specific timeline for justices to recuse,” she said. “It’s up to the judge’s discretion.”

At IL deadline, no formal motion had been filed requesting Massa disqualify himself. “Courts move through formal procedure,” Dolan said.

John Blair, director of Evansville-based ValleyWatch, one of several environmental groups opposing the plant in amicus briefs, said the group is leaning toward filing a formal request for recusal. But, he said, parties shouldn’t have to because of the public calls and the expectation of an unbiased judiciary.

Rule 2.11 of the Code of Judicial Conduct says a judge shall disqualify “in any proceeding in which the judge’s impartiality might reasonably be questioned.”

“I can’t understand why Massa hasn’t recused himself,” Blair said, noting the public calls that he and others have made for him to disqualify from the case. Lubbers, Blair said, “brought him into state government and used to pal around with him all over the Statehouse.

“It’s more than an appearance of conflict. It is a conflict,” Blair said.

Attorney Jerome Polk represents ValleyWatch and other amici including the Sierra Club, Citizens Action Coalition and Spencer County Citizens for Quality of Life. He said the groups have not ruled out filing a formal motion.

“The canon seems pretty clear,” Polk said, “that the obligation (to disqualify) exists whether a motion has been filed or not. From a purely hypothetical perspective, when a judge is in that position, they shouldn’t wait for a motion to be filed.”

Blair noted that requiring an attorney to file a formal motion requesting a justice’s disqualification is likely to place that lawyer in an awkward position before a court of last resort.

Dolan said that while there have been calls for Massa to publicly step aside, it’s not unusual for justices to say nothing even if they do plan to recuse themselves. “It becomes apparent the day of oral argument,” she said, when a justice simply doesn’t appear.

That’s more the norm in such cases, Dolan said. If Massa did speak to the controversy, she said, that would be more unusual, considering Code of Judicial Conduct Rule 2.10 that governs judicial statements on pending cases. Rule 2.10(A) states, “A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court.”

Dolan also noted Rule 2.7 regarding a judge’s responsibility to decide. A comment in the canon regarding the rule notes that while disqualification is required in some instances, a judge should “not use disqualification to avoid cases that present difficult, controversial, or unpopular issues.”

Indiana University Maurer School of Law professor Charles Geyh writes and teaches on judicial conduct, ethics and accountability. He said whether Massa chooses to recuse himself isn’t necessarily clear-cut.

Recusal “depends in part on whether Lubbers would benefit from a favorable ruling,” Geyh said.

“If, as project manager, the ruling will have a direct effect on Lubbers’ career, then the fact that Lubbers is a close friend of the justice – so close as to speak at the justice’s robing ceremony – could engender reasonable doubts about Massa’s impartiality, necessitating his disqualification,” Geyh said.

Lubbers could not be reached for comment. Earlier this year, after Gov. Mike Pence signed Senate Enrolled Act 494 deferring to the Supreme Court and instituting a likely new round of regulatory review for the proposal, Lubbers issued a statement on behalf of Indiana Gasification that read in part, “We will work hard for a win if the Supreme Court takes the case.

“If we win, however, only a clear reversal of position by the governor would enable the project to go forward.”

Representatives of Indiana Gasification and attorneys representing the firm did not respond to requests for comment. Norman Thomas Funk, an attorney representing plaintiff Vectren (Indiana Gas), declined to comment.•


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  1. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues