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Thursday, August 29, 2013

Ind. Courts - "Courts need to treat conflicts as other professions do"

John Krull, executive editor, TheStatehouseFile, posted this commentary this morning. It could serve as a companion piece to the ILB's post yesterday on the absence of a the standard for Indiana Supreme Court recusal.

INDIANAPOLIS – A prominent politician once told me a story about a friend of his who became a judge.

That friend, the politician said, had been a regular guy until he got elevated to the bench.

“Then he started acting like a judge, like a lot of them,” the politician said. “A lot of them start forgetting that they’re human beings just like the rest of us once they’ve been wearing those robes for a while.”

I’ve thought about that conversation as the controversy over Indiana Supreme Court Justice Mark Massa has played out.

A few days ago, a collection of environmental groups requested that Massa recuse himself from litigation involved with the Rockport coal-to-synthetic gas project because he had conflicts of interest. The conflicts in question came from his long friendship with Rockport project spearhead Mark Lubbers – who gave Massa his first job, spoke at the justice’s investiture on the Supreme Court and served with him as senior staff for Gov. Mitch Daniels – and from his work as chief counsel for Daniels, who strongly supported the project.

Massa responded within hours and denied the request. He said that his friendship with Lubbers was of no great consequence and that his time as Daniels’ top lawyer gave him no extrajudicial knowledge of the project.

Critics, including me, offered responses to Massa’s decision that ranged from derisive to scathing.

Since then Massa’s supporters have offered defenses of the justice’s refusal to recuse.

Perhaps the most thoughtful came in the form of a letter to the editor I saw in The Indianapolis Star. It was written by former state Supreme Court Justice Frank Sullivan, now a professor at Indiana University’s Robert H. McKinney School of Law.

Sullivan said that Massa was right to refuse to recuse himself for some interesting reasons.

Sullivan argued that the legal team for the environmental groups, which oppose the Rockport project, thought they would secure an advantage by having Massa removed from the suit. That may be true, but that argument also cuts the other way. If Massa does have a bias, then proponents for the plant gain an advantage by having the justice stay involved.

Perhaps that’s why Sullivan went to another argument – one that’s become increasingly popular among members of the judicial branch. He said that judges are used to rising above conflicts of interest and that such considerations really don’t apply to them.

It’s a defense made popular by U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas. In Scalia’s case, he’s used to that argument to excuse palling around with former Vice President Dick Cheney when matters concerning Cheney have been before the court. In Thomas’s case, it’s used to defend his participation involving issues dear to the tea party when his wife is lobbying for the group.

Again, this is an argument that could be applied to elected public officials or even journalists –that they have a special ability to rise above ordinary human considerations of friendship, loyalty or even self-interest to simply do their duty.

But here’s the thing: Most other professions have stricter codes of conduct than the standard Massa, Sullivan, Scalia and Thomas are advancing for members of the bench.

News organizations take steps to prevent reporters from covering stories that involve people or organizations with whom they have close or financial relationships – and certainly not without some acknowledgment of the potential for bias and some safeguard that the bias wouldn’t affect the reporting.

The reason news organizations have those rules in place is that they recognize that journalists, like politicians, businesspeople, lawyers and, yes, judges, are human beings. That’s why it’s wise not to put them in situations in which their personal interests might conflict with their duty.

And that raises an interesting question: Do we, as citizens, think it’s wise for judges to observe laxer standards in regard to conflicts of interest than most journalists do?

Or, to rephrase the question the way my politician would, do we want to continue to pretend that judges really aren’t human beings like the rest of us?

Posted by Marcia Oddi on August 29, 2013 08:54 AM
Posted to Indiana Courts