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Tuesday, June 18, 2013

Ind. Courts - "Attention turns to Indiana Supreme Court justice in Rockport plant case"

Indianapolis Star business reporter Tony Cook posted this long story online this evening. Here are some quotes:

As the Indiana Supreme Court prepares to weigh a case that could determine the fate of a controversial $2.8 billion coal-gas plant in Rockport, attention has turned to one of the judges.

Justice Mark Massa is a longtime friend of Mark Lubbers, the plant developer’s top official in Indiana. Massa also was legal counsel for then-Gov. Mitch Daniels, who strongly advocated for the project.

Legal experts say those factors should prompt Massa to seriously consider stepping aside. They also say that if a judge is going to recuse himself, he should do so as soon as possible. Opponents of the project say Massa already should have.

So far, Massa has not. Whether he intends to remains unclear.

“He will need no encouragement to recuse himself if there is a reason to do so,” Lubbers said. “His ethical standards are well-honed and above reproach.”

Kathryn Dolan, a spokeswoman for the court, said Massa did not recuse himself when the Supreme Court decided to take up the case on June 6.

In the past, some justices — including Massa — have recused themselves at the time the court decides whether to take up a case.

Massa could not comment for this story because of a judicial rule that bars judges from speaking publicly about cases pending before them, Dolan said. * * *

At least three of the court’s five justices must vote to take up a case. But information about those votes is confidential, so it is unknown whether Massa played any role in the court’s decision to hear the Rockport case.

The relationship between Massa and Lubbers “represents a serious, legitimate concern,” said Charles Geyh, a law professor at Indiana University and one of the nation’s top experts on judicial disqualification.

“If Lubbers is widely understood as the alter ego of the company that is going to lose a serious financial opportunity if this decision is upheld, then you might think disqualification is in order,” he said.

Plant opponents are concerned.

With so much at stake, they question whether Massa can objectively rule on a matter that could effectively kill the project his friend has worked for years to make happen.

“To give the public confidence that this decision is based on the law and sound public policy, and not political cronyism, Justice Massa should recuse himself,” said Kerwin Olson, executive director of Citizens Action Coalition, which is a party to the case. * * *

Lubbers and Massa have a long history together.

In the mid-1980s, Massa was a reporter for an Evansville newspaper when Lubbers recruited him to become a speechwriter for Gov. Bob Orr. Both men would later work for Daniels, though at different times.

During Massa’s robing ceremony in May 2012, Lubbers introduced him and described their early days together. He praised Massa as “a gem of extraordinary quality.” [ILB: Video of the ceremony is archived on the Indiana Court website, Mr. Lubbers speaks at about 11:40 into the video]

When Massa stepped up to the microphone, he said Lubbers “was the first of many who inspired me to aim higher in the Daniels tradition.” * * *

Critics of the Rockport project say there is another reason Massa should consider stepping aside: his work for Daniels, a proponent of the plant.

Massa was general counsel to Daniels from 2006 to 2010. During that time, Daniels signed several pieces of legislation that helped enable the project, including a 2009 law that authorized the Indiana Finance Authority, a state agency, to negotiate a contract with Indiana Gasification.

Whether the contract is in keeping with what lawmakers authorized is part of what the Supreme Court is now considering.

David Pippen, who served as Daniels’ energy adviser and who replaced Massa as general counsel, said he didn’t think Massa had anything to do with contract negotiations. But he said Massa likely would have overseen the legal review of the 2009 authorizing legislation.

That could trigger another provision of Indiana’s judicial code, which requires judges to disqualify themselves if they have served as a lawyer or participated as a public official in the matter in controversy.

Experts agree that if a judge is going to recuse himself, he should do so as soon as possible.

“If a judge doesn’t get off a case as soon as he or she is made aware of a disqualification issue, that throws into question any ruling the judge participates in,” said Les Abramson, a law professor at the University of Louisville who has written about judicial disqualification.

Indiana Supreme Court justices have stepped aside when making the initial decision about whether to take up a case.

Massa did just that in December, when the court declined to take up a case involving Indianapolis police officer David Bisard.

ILB: The ILB posted legal background on the recusal issue on June 7th and on June 9th.

Posted by Marcia Oddi on June 18, 2013 10:04 PM
Posted to Indiana Courts