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Wednesday, August 28, 2013

Ind. Courts - Where is the recusal bar in Indiana - and does it vary from justice to justice?

Citizen confidence in the judiciary is eroded when the bar standard for recusal is unclear and seems to vary from justice to justice.

Only very rarely is a decision to recuse explained by a Supreme Court justice in Indiana. C.J. Shepard's Mike Tyson v. State recusal order is one instance. Justice Rucker's recusal order in Wilkins is another.

Equally rarely is the refusal to recuse explained by a justice. In addition to J. Massa's order earlier this month, the ILB has located only one such order. It was written by Justice Boehm in 2003, in Peterson v. Borst, the case challenging the 2002 Marion County redistricting.[1]

Justice Massa's order denying a motion to recuse in the Rockport coal gasification case, begins:

The moving parties make two arguments in support of their request. First, they claim my personal friendship with Mark Lubbers, the Indiana Project Manager for the investment group seeking to build the coal gasification plant at the heart of this regulatory and legal controversy, casts doubt on my impartiality. Second, they assert I was “exposed” to “extrajudicial information” regarding the statute at issue in this case during my tenure as General Counsel for Governor Mitch Daniels.
Massa quicky dismisses the first claim of "personal friendship", writing:
In recent years, our Court has been blessed with the services of Justices Boehm and Sullivan, who before taking the bench were hired at two of the state’s leading law firms whose lawyers often appeared before our Court. Both Justices routinely heard appeals argued by lawyers from those firms without any suggestion of recusal. Nor is it unusual for us to hear cases argued by lawyers we hired as law clerks before they entered appellate practice.

As for the second claim ("extrajudicial information"), Massa writes:

The movants also allege that I cannot hear this case because I once worked for Governor Daniels, a supporter of the project. But as Justice Boehm explained in Peterson v. Borst, 784 N.E.2d 934, 936 (Ind. 2003), “all Justices on this Court were appointed by the Governor. In every case the appointing Governor has selected someone with at least some history of support for the Governor’s political party." * * *

During my four-year tenure as General Counsel, I did oversee a team of lawyers who reviewed enacted legislation for constitutionality before the bills were presented to the Governor for signature. (Other policy aides provided more substantive review and advice.) Therefore, I would have reviewed the enabling legislation for that purpose, but I have no independent recollection of having done so, as Governor Daniels signed 757 separate pieces of legislation during my tenure.[2]

Massa concludes by pointing out that "even one unnecessary recusal impairs the functioning of the Court" and "Here, the moving parties can do the appellate 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."

Last Sunday's Indianapolis Star included an opinion letter from former Justice Frank Sullivan, titled "Mark Massa right not to step aside in coal gasification case". The first half of the letter speaks of "a lawyer representing certain environmental groups" trying to "knock off a justice" so that they needed only two, rather than three votes to win. The letter continues:

With this in mind, a Florida lawyer[3] 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.

Interestingly, Justice Sullivan himself recused from approximately 36 decisions during his tenure on the Supreme Court.[4]

As is the tradition where recusal is on the justice's own initiative, J. Sullivan gave no reason in any of his recusals. Frank Sullivan served as Gov. Bayh's state budget director for a number of years, and then was appointed to the Supreme Court by Bayh. Prior to that, in the early 80s, he was an attorney at Barnes & Thornburg. Sullivan's wife worked in state government during much of his tenure on the bench, including as head of FSSA.

To many it might appear that Sullivan's connections to his recusal cases were more tenuous than Massa's connection to the Rockport case. For example, Sullivan's wife likely had little or no knowledge about a county-level termination of parental rights case, and he probably had absolutely no knowledge of it.

A quick glance at recusals by other long-serving Indiana justices show roughly: Dickson, 22; Rucker, 14; Shepard, 43 - with no explanation. This makes it difficult for the public, and even for other justices to know what the bar is.

Finally, Justice Massa writes the Rockport opponents "would only have to convince two judges to prevail, leaving the Court split and winning the tie." Sullivan points to this in his letter of support, writing: "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."

This is true, but it should not be the rationale for a justice to remain on a case to which the justice has a substantial connection. And it wasn't for Justice Sullivan in 2011, where unaccountably, he recused in the case of City of Greenwood v. Town of Bargersville. As this ILB post at the time points out, Justice Sullivan had recused himself on the day of the oral argument, January 20, 2011. On Jan. 29, when the remaining justices split 2-2, Appellate Rule 58C kicked in and the Court of Appeals decision was reinstated.

It also wasn't in Tyson, where CJ Shepard recused before the vote on the petition for transfer; a 2-2 split among the remaining justices meant that Tyson's transfer petition was denied.

And it certainly wasn't in the Wilkins disciplinary matter, Justice Rucker had been completely unaware that he had "served on the underlying Court of Appeals panel. Neither before the hearing officer nor in his petition to this court for review of the hearing officer's determination did respondent ever mention that I served on the panel."

Nonetheless, I acknowledge that the question is not whether I personally believe I have been impartial. Rather, it is whether a "reasonable person aware of all the circumstances" would question my impartiality. * * * In this case there is a possibility, particularly outside of the legal community, that my impartiality could be questioned. See, e.g., United States v. Jordan, 49 F.3d 152, 157 (5th Cir.1995) (noting that the average person on the street as "an observer of our judicial system is less likely to credit judges' impartiality than the judiciary"); In re Mason, 916 F.2d 384, 386 (7th Cir.1990) (observing that a lay observer would be less inclined to credit a judge's impartiality than other members of the judiciary). Because a judge has a duty to promote public confidence in the impartiality of the judiciary, Tyson, 622 N.E.2d at 459, and because "[c]oncerns about public confidence in the judicial system" underlie Canon 3, id., out of an abundance of caution I therefore recuse myself from further involvement in this case. And I do so effective immediately declining respondent's request to consider first his petition for rehearing now pending before this Court.
After Rucker's recusal, the remaining members of the Court in 2003 issued a disciplinary action on petition for rehearing with this conclusion:
SHEPARD, C.J., concurs; BOEHM, J., concurs in result with separate opinion[5]; RUCKER, J., not participating; SULLIVAN, J., dissents, believing respondent's conduct was speech protected by the First Amendment and so no sanction is permissible.
It is difficult, if not impossible, to reconcile Justice Massa's refusal to recuse with Chief Justice Shepard's recusal in Tyson or Justice Rucker's recusal in Wilkins. Although recusal opinions are not opinions of the Court but merely the opinion of one justice, litigants, lawyers, and citizens are understandably troubled when the standard is applied in such widely varied ways. Finally, as we have seen, this handful of recusal opinions is the exception, in scores of cases there is only the notation, "did not participate."

The oral argument in Indiana Gas Company, Inc. v. Indiana Finance Authority is set for Thursday, September 5th at 9 AM. See this ILB post for more information.

[1] Some quotes from Boehm's order denying the motion to recuse:

The stated ground for the motion is that in November, 2001 I was appointed by the Mayor of the City of Indianapolis as a member and chair of a newly created Cultural Development Commission (CDC). At the outset, let me state that if I agreed with the motion, I would resign from the CDC, not recuse in this case. For the reasons stated, I do not believe I need to take that step.
[2] However, the bill received much notoriety during the 2009 session. See this March 25, 2009 ILB post, headed "Governor signs first bill of 2009 session."

[3] Re the "Florida lawyer" the ILB has received this note from a reader: "A number of responses to the issue regarding Justice Massa's recusal refusal have made reference to a 'Florida lawyer' making the request for Justice Massa's recusal. The lawyer in question is Jerry Polk, who is a longtime Indiana practitioner representing the Citizen's Action Coalition. He only relocated to Florida in the last year or so. Not that there's anything wrong with being a Florida lawyer."

[4] The ILB used Google Scholar and searched for "sullivan, j., not participating" and "sullivan, j., did not participate". (Appellate opinions and duplicates were excluded.) For comparative purposes, additional searches were conducted, using other justices names, but these were limited to the "not participating" form. Additional research could increase the count.

[5] In which J. Boehm explained: "The votes of the Chief Justice and Justice Dickson are to grant rehearing as to the sanction only, and to impose a public reprimand. Justice Sullivan and I would vote for no sanction at all. But if neither of us joins in the result reached by Justice Dickson and the Chief Justice, we have no majority to grant rehearing as to any aspect of the original opinion and Wilkins' thirty-day suspension stands."

Posted by Marcia Oddi on August 28, 2013 04:00 PM
Posted to Indiana Courts