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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. 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

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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