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Stubborn refusal of recusal


Conflicts of interest are sometimes subject to debate – what one might interpret as a conflict can represent no such thing to another observer. In the case of Indiana Supreme Court Justice Mark Massa, his ties to a case involving the Rockport gasification plant allow no room for debate over the obvious conflict.

Massa was chief counsel to Gov. Mitch Daniels when the controversial Rockport deal was approved as one of the administration’s top initiatives. Massa also is a personal friend of Mark Lubbers, project director for the plant’s developer, Indiana Gasification. Lubbers hired Massa to serve on then-Gov. Robert Orr’s staff in 1985 and the two later served together on Daniels’ senior staff. At his robing ceremony for the Supreme Court, Massa praised Lubbers as “first of many who inspired me to aim higher in the Daniels tradition.”

Four environmental groups filed a motion asking Massa to recuse himself from the case. Within hours, he responded with an order already staking his position.

His recusal would leave a four-person bench to decide the case, Massa wrote. Those seeking his removal “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,” he said.

Incredibly, Massa conceded that he would have reviewed legislation related to the deal but dismissed his involvement by claiming he had no recollection of having done so. He noted that Daniels signed 757 bills during his tenure on his governor’s staff.

“If this particular case is not a textbook example of one in which recusal is appropriate and expected, I don’t know what case would be,” said Kerwin Olson of Citizens Action Coalition. “The point of these ethics laws and ex-parte rules is to give the public confidence that decisions made are based on sound public policy and proper legal judgment.”

The fate of the gasification plant project likely hangs on the ruling. Legislators had enough concern about the deal and its effect on utility customers that they passed a bill subjecting it to additional regulatory review unless the court overrules the lower court ruling that voided the contract based on a technicality.

The state’s judicial code of conduct dictates judges disqualify themselves from any proceeding in which their impartiality “might reasonably be questioned.” Massa compromises the court’s integrity with his refusal to bow out.