August 29, 2013-by John Krull, in the StatehouseFile. Ed. Note: The Indiana Supreme Court will hear oral arguments on this case on September 5 and Valley Watch, Inc. is one of the parties to this case, along with Vectren, other gas utilities, and citizens groups Sierra Club, Citizen s Action Coalition and Spencer County Citizens for Quality of Life.
John Krull
If Indiana Supreme Court Justice Mark Massa ever gets a chance to address a law school class or graduation ceremony, let’s hope he speaks about something he understands – like the importance of loyalty and friendship.
He should stay away, though, from subjects he just doesn’t get – such as conflicts of interest.
Or the dignity of the state’s highest court.
A few days ago, Massa delivered a lesson on the limits of his comprehension. On the morning of Aug. 14, four environmental groups filed a request with the Indiana Supreme Court that Massa recuse himself from a case coming before the court, the controversial coal-to-synthetic gas plant proposed for Rockport.
The environmental groups cited two reasons that Massa would have a conflict of interest – his personal friendship with Mark Lubbers, the Indiana project director for the group trying to build the plant, and the work Massa did as general counsel for former Gov. Mitch Daniels. Daniels was an energetic supporter of the plant.
Massa gave the request about as much consideration as he would choosing the toppings on a pizza – and he got the response out in about the amount of time it takes to get one delivered. He released it Wednesday afternoon, just hours after the environmental groups filed the request.
It was a remarkably fast bit of writing, given that he must have been typing with only his middle finger.
In his response, the Indiana Supreme Court justice dismissed his friendship of 28 years with Lubbers as being of no great consequence. Massa must have forgotten that Lubbers helped launch his career by hiring him to be part of Gov. Robert Orr’s staff in the 1980s and spoke at his investiture for the Supreme Court. Clearly, the times that he and Lubbers were on Daniels’ senior staff also must have slipped his mind.
Massa also said that he had no extrajudicial knowledge of the enabling legislation that made the plant possible. He argued that he “had no involvement in the Indiana Finance Authority and Indiana Gasification.” He also said that he didn’t review the bill before it became law.
Given that he was the governor’s top staff lawyer and the Rockport deal was one of the Daniels’ administration’s major initiatives, Massa’s statement immediately prompted scientists to begin searching the Statehouse for the hermetically sealed bubble in which the man must have been working and living. Doctors might be able to use it to completely isolate patients from the outside world.
Or reality itself.
Massa’s determination to dance with the ones who brung him demonstrates a couple of things.
The first and most immediate thing is that the plant’s backers clearly don’t have faith that their argument will carry the day if Massa isn’t in place to vote. There are strong arguments on both sides of the Rockport debate, but the project is in some jeopardy. An appeals court has ordered a change in the contract that could mean the project won’t go forward.
If the Supreme Court upholds the appellate court, the project could die. If, without Massa involved, the remaining four justices vote 2-2, then the appeals court ruling is upheld.
Backers of the Rockport project have 2.8 billion reasons to make sure that doesn’t happen and they’re willing to go to considerable lengths to insure that their project isn’t derailed. They’re willing to compromise both Massa’s reputation and that of the state’s highest court in the process.
Or at least Massa is willing to do so.
The second thing is less ephemeral in nature. Massa, Lubbers and Daniels all pride themselves on being part of a conservative movement. There was a time when being a conservative meant respecting traditions, honoring institutions and upholding classic principles. Conservatives were supposed to be the ones who took the long view, who believed that we could not move forward if we did not respect where we had been.
It’s clear that those days are over. There’s very little – an independent and impartial judiciary being at the top of the list – conservatives now aren’t willing to traduce in order to achieve an immediate end, generally one that is accompanied by a large windfall.
One way or the other, the Rockport deal will be resolved soon and fade from public attention.
The damage done to the respect Hoosiers should feel for their highest court and the rule of law will linger.
On second thought, if he gets a chance to address law students in the future, perhaps Massa can discuss his role in making that happen.
John Krull is director of Franklin College’s Pulliam School of Journalism, host of “No Limits” WFYI 90.1 FM Indianapolis and executive editor of TheStatehouseFile.com, a news website powered by Franklin College journalism students.