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.
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.•