Tag Archives: Mark Lubbers

I’m as Ethical as Scalia is NOT a Persuasive Argument

A couple of days ago, the Sierra Club, Citizens Action Coalition, Spencer County Citizens for Quality of Life and Save the Valley [update: the organization was Valley Watch, not Save the Valley] filed a petition asking Indiana Supreme Court Justice Mark Massa to recuse himself from hearing a case that will determine the viability of the controversial Rockport coal gasification facility. (I’ve written before about this boondoggle, birthed by political insiders and totally contrary to the free market principles to which the Daniels Administration paid so much verbal homage.)

Not even 20 hours after the petition was filed, Massa issued a ruling denying it. Clearly, the ruling had been written well beforehand–the lawyers who crafted the brief could have saved their (written) breath.

The argument for recusal rested on the long and intimate relationship between Massa and Mark Lubbers, whose personal fortunes are closely tied to the results of the lawsuit, and upon Massa’s friendship with and service to then-governor Mitch Daniels, who rammed the deal through over the qualms of both Republican and Democratic legislators. As columnist Charles Pierce wrote yesterday in his Esquire blog,Massa couldn’t be more tied into the people who want to build the plant if he came to work every morning in one of those NASCAR firesuits festooned with logos.”

Massa’s ruling relied heavily on Cheney v. United States District Court, the infamous case in which Justice Scalia refused to recuse himself from a pending case despite the fact that he had gone duck hunting with the Vice-President–a named party— while the case was pending. Massa neglected to note that the Indiana Supreme Court, unlike the US Supreme Court, is governed by one of those pesky codes of ethics. (Can we spell “appearance of impropriety”?)

At least he didn’t defend himself by pointing out that Clarence Thomas sits on cases in which his wife has an interest, while he and Lubbers are just best buds. (Actually, relying on Scalia or Thomas for ethical guidance makes me think of that old adage about fish rotting from the head. But I digress.)

In a particularly disingenuous passage, Judge Massa wrote:

“I have a friend who works for General Motors; must I recuse if GM is a party to a case before our court?” he wrote. “All of us on this Court have many friends who are lawyers, some of whom appear before us, including several to whom I am closer and see more regularly than Mr. Lubbers. If mere friendship with these lawyers were enough to trigger disqualification, my colleagues and I would rarely sit as an intact court of five.”

Well Judge, if you had a friend who worked for General Motors, that would be a lot different than having a friend whose continued, highly lucrative employment depends upon a favorable verdict– a friend who got you your first political job 30 years ago, a friend with whom you have subsequently shared many meals and social occasions, a friend who was one of the very few invitees asked to speak at the robing ceremony when you were sworn in as Judge.

I’m disappointed, but not surprised. This is the man who, as a candidate for Marion County Prosecutor, ran an ad asserting that his opponent was unfit for the office because in his private practice he had represented a criminal defendant. (I know several Republican lawyers who had supported Massa until that ad ran, but based on its intellectual dishonesty, instead voted for Terry Curry.)

Massa evidently couldn’t see an appearance of impropriety if it bit him.