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Massa stays in Rockport power plant case over calls for recusal

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

Massa signed an order denying the motion from environmental and consumer groups opposed to the planned $2.7 billion coal gasification plant in Rockport. 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 lobbied 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 text book 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. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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