Massa stays in Rockport case despite calls for recusal

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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.”•


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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