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Editorial

Justices reveal blind spot on potential conflicts of interest

Massa

To ask a government official to disclose possible conflicts of interest is not to imply that you believe he or she has broken the law or violated an ethical trust. It is part of the philosophy and process of open government.

A three-year study by the Center for Public Integrity released recently revealed that Supreme Court justices in most states aren’t held to very strict disclosure standards. Indiana was one of 42 states that received an “F” from the center, though our state’s disclosure rules put it 17th out of 50.

A representative of the Indiana Supreme Court, the chairman of the Judicial Improvements Committee of the Indiana Bar Association and a member of the Indiana Senate Judiciary Committee all told The Journal Gazette’s Niki Kelly that there are no major problems here.

Court spokeswoman Kathryn Dolan noted that though the standards the integrity center applied in its study were developed for federal judges, some of whom have lifetime appointments, members of Indiana’s high court face retention elections and can theoretically be removed by the voters. (Indiana’s high court judges are appointed to begin with, which avoids the problems that candidates receiving campaign contributions sometimes face.)

Sen. Sue Glick, a LaGrange Republican and an attorney, told Kelly the Judiciary Committee hasn’t heard any calls for stricter reporting standards. “If they have a conflict, you have to believe they will step away and recuse themselves,” she said. “I am confident they will.”

The center received similar comments from other states in response to its largely unflattering report.

Montana was one of three states that has no financial disclosure rules at all for the judges on its highest court. Yet, Montana Chief Justice Mike McGrath told the Associated Press that because judges are expected to disqualify themselves if they or a family member have a conflict of interest, the court has “moved sort of beyond mere disclosure.”

But the center’s study found that state justices don’t always recuse themselves or reveal their conflicts.

“Last December,” the center reported, “the California Supreme Court declined to hear an appeal filed by a couple who had accused financial giant Wells Fargo & Co. of predatory lending.

“One justice, who owned stock in the bank, recused himself from the case. But Justice Kathryn Werdegar, who owned as much as $1 million of Wells Fargo stock, participated – and shouldn’t have.”

Even working with disclosure information that was largely inadequate – California received the highest rating, a “C” – the center found 35 cases around the nation where state justices had conflicts, received questionable gifts or had other entanglements.

Only eight states “passed” the center’s study. Indiana received a higher failing grade than most states because our state requires justices to reveal income, gifts, investments and reimbursements for themselves and family members. But the records are difficult for the public to access, the justices are not required to report debts of any size, and the threshold for reporting stock holdings in a particular company is a high one – $10,000.

Are Indiana’s Supreme Court justices running wild with conflicts because of the state’s moderately loose disclosure standards? Of course not.

In August, we expressed concern about Justice Mark Massa’s refusal to recuse himself from hearing a case involving the proposed Rockport gasification plant, a major initiative of the Mitch Daniels administration, despite glaringly obvious conflicts of interest. Massa was chief counsel to Gov. Daniels when the controversial plant deal was negotiated by the governor’s office and related, Daniels-backed legislation was approved, and he is a personal friend of the project’s director, Mark Lubbers.

The case involved a challenge to an agreement with the plant’s developer, Indiana Gasification, that would leave Hoosier heating customers holding the bag for up to $1.1 billion if the plant fails to turn a profit. On Tuesday, Massa voted with the other four justices to approve the deal. Though Massa has no financial interest in the development, the state’s judicial code requires that judges disqualify themselves from any proceeding in which their impartiality “might reasonably be questioned.”

Massa’s failure to recuse himself demonstrates that justices are not always the best self-judges when it comes to potentially compromising situations. And the center’s report shows clearly that justices in some other states have, intentionally or not, stepped over the commonly accepted lines of conflict. Why shouldn’t the very highest members of our judicial system be asked to meet the highest levels of disclosure?

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