Friday, August 23, 2013
Ind. Courts - Former Justice Sullivan: "Mark Massa right not to step aside in coal gasification case"
Frank Sullivan Jr., professor, Indiana University Robert H. McKinney School of Law and Justice, Indiana Supreme Court, 1993-2012, has this opinion letter in today's Indianapolis Star:
Lawyers sometimes try to knock a judge off a case if they think it will help their client win the lawsuit.
That is what is going on in the highly publicized effort of a lawyer representing certain environmental groups who is trying to keep Indiana Supreme Court Justice Mark Massa from ruling in the Indiana Gasification case. The publicity helps the environmental groups, too.
The environmental groups want to stop Indiana Gasification LLC’s project to produce substitute natural gas. They appealed when the Indiana Utility Regulatory Commission (IURC) ruled in favor of Indiana Gasification. A three-judge panel of the Indiana Court of Appeals then ruled in their favor. Now Indiana Gasification is asking the Supreme Court to reinstate the IURC’s decision.
The Indiana Supreme Court has only five justices. If a justice does not participate in a lawsuit, there is no substitute. And it takes three votes to reverse a decision of the Court of Appeals. So if the environmental groups can knock a justice off the case, they only need two votes instead of three to win.
With this in mind, a Florida lawyer representing the environmental groups formally asked Justice Massa not to participate in the case because of his long-standing friendship with Mark Lubbers, a former aide to Sen. Richard Lugar, Gov. Robert Orr, and Gov. Mitch Daniels Lubbers is now a senior Indiana Gasification executive.
Justice Massa has explained in a carefully reasoned statement that he will participate in the case. His decision to participate is correct as a matter of both law and common sense.
First, the Indiana judicial ethics code requires judges to decide the lawsuits in their courts unless prohibited from doing so. Judges can’t duck cases. Nor can the litigants choose their judges.
Second, judges are prohibited from deciding cases only when “an objective person, knowledgeable of all the circumstances, would have a reasonable basis for doubting the judge’s impartiality.” Justice Massa’s friendship with Lubbers does not create a reasonable basis for doubting his impartiality in these circumstances.
All successful people stand on the shoulders of others but loyalty and appreciation to them is not blind. This is particularly true of judges who on a daily basis must rule in cases involving lawyers who are their friends, mentors and supporters. For a judge not to be impartial in such circumstances would demean the very basis of that friendship, mentorship and support.
We can be confident that whatever decision Justice Massa reaches in the Indiana Gasification case, it will be based on the law and the proven facts – and without consideration of any professional or personal relationship with any individual involved in the case.
Posted by Marcia Oddi on August 23, 2013 08:48 AM
Posted to Indiana Courts