ILNews

Massa stays in Rockport case despite calls for recusal

Back to TopCommentsE-mailPrintBookmark and Share

Indiana Supreme Court Justice Mark Massa on Aug. 14 denied a formal motion arguing that he should recuse himself from a pending case concerning a controversial power plant in Rockport. The project is backed by a longtime friend of Massa and former aide to Gov. Mitch Daniels, whose administration championed the project.

massa Massa

Massa signed an order denying the motion from environmental and consumer groups opposed to the planned $2.7 billion coal gasification plant. Critics contend that Massa’s longtime professional and personal relationship with project manager Mark Lubbers cast doubt on his impartiality.

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.

“The moving parties can do the math and know that in the event of my recusal, they would only have to convince two judges to prevail, leaving the Court split and winning the tie,” Massa wrote.

He cited Cheney, Vice President of the United States, et al. v. United States District Court for the District of Columbia, 541 U.S. 913, in which Justice Antonin Scalia declined to recuse himself in a challenge brought by the Sierra Club involving former Vice President Dick Cheney’s shooting of a friend during a duck-hunting trip in which Scalia participated.

“Thus, ‘even one unnecessary recusal impairs the functioning of the court,’” Massa wrote, citing Cheney, “something I will not do in the absence of sufficient cause in a question of large public import. I therefore will participate when this case is heard.”

The Supreme Court will hear Indiana Gas Company, Inc. v. Indiana Finance Authority, 93S02-1306-EX-407, at 9 a.m. Sept. 5.

The Sierra Club was among groups that asked Massa to disqualify himself when Florida attorney Jerome Polk filed the motion Tuesday. Others included Citizens Action Coalition, Spencer County Citizens for Quality of Life and Save the Valley.

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.

But Massa said the argument for recusal would disable the courts. “I have a friend who works for General Motors; must I recuse if GM is a party to a case before our court?” he wrote. “All of us on this Court have many friends who are lawyers, some of whom appear before us, including several to whom I am closer and see more regularly than Mr. Lubbers. If mere friendship with these lawyers were enough to trigger disqualification, my colleagues and I would rarely sit as an intact court of five.”

The motion for recusal argued that “Lubbers has his personal fortune at stake in the outcome of this proceeding,” having been involved in the $2.7 billion project for years and lobbying for it at the Statehouse. Massa, in denying recusal, said that isn’t the case: “(n)either Mr. Lubbers’ freedom nor his fortune are at stake in this lawsuit.”  

Massa also wrote that he “had no involvement in the negotiation of the contract between the Indiana Finance Authority and Indiana Gasification. I was not (Daniels’) counsel when the deal was struck in 2011 and thus had no involvement in it of any kind.”

“The question is whether the contract, negotiated long after my departure from the Governor’s office, comports with Indiana law,” Massa wrote. Two of three Indiana Court of Appeals judges ruled that it does not.

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

The recusal 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 argued 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.”

Nonetheless, Massa will not recuse.

“As Justice Scalia put it,” Massa wrote, “the decision whether a judge’s impartiality can ‘reasonably be questioned’ is to be made in light of the facts as they existed, and not as they were surmised or reported.”

Following Massa’s denial of the motion, Kerwin Olson, executive director of Citizens Action Coalition, issued the following statement:

“CAC is disappointed that Justice Massa has decided to not recuse himself. Speaking as a non-lawyer, if this particular case is not a textbook example of one in which recusal is appropriate and expected, I don’t know what case would be. The public’s confidence in the objectivity of the legislative, regulatory, and judicial oversight of the energy and utilities industry in the State of Indiana is at an all-time low this week with this decision and the dismissal of all charges against David Lott Hardy. The point of these ethics laws and ex-parte rules is to give the public confidence that decisions made are based on sound public policy and proper legal judgment. These laws and rules are nothing more than meaningless words on paper if the spirit of them continues to be ignored by those expected to honor and enforce them.”•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  2. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

  3. The story that you have shared is quite interesting and also the information is very helpful. Thanks for sharing the article. For more info: http://www.treasurecoastbailbonds.com/

  4. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  5. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

ADVERTISEMENT