Retired Justice Frank Sullivan Defends Justice Massa's Decision Not To Recuse Himself In Rockport Case

Retired Justice Frank Sullivan has an opinion piece in the Indianapolis Star today defending the decision of Justice Mark Massa not to recuse himself in the controversial case concerning the Rockport coal gasification project. An executive of the company pushing the deal, Mark Lubbers, first recruited Massa to join the administration of former Gov. Robert Orr and the two worked together in the executive office of Gov. Mitch Daniels where Massa served as the governor's chief legal counsel. Here's an excerpt from his opinion piece:

The Indiana Supreme Court has only five justices. If a justice does not participate in a lawsuit, there is no substitute. 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 . . .

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.

Hat tip to Indiana Law Blog.

Justice Sullivan has something in common with Massa. Like Massa, he worked as a high-level executive in the administration of the governor who appointed him to office. Sullivan served as budget director and as an executive assistant to former Gov. Evan Bayh immediately prior to his appointment. If my recollection is accurate, Justice Sullivan on several occasions recused himself from hearing cases that came before the court. I believe some of those recusals involved cases which touched on work he had performed in Bayh's administration. In one case reported on by the Indiana Law Blog a little over two years ago involving a dispute between the City of Greenwood and Town of Bargersville over an annexation made by the Town of Bargersville, Sullivan recused himself on the day of the oral argument without further explanation. Sullivan's recusal resulted in a deadlocked 2-2 decision, which permitted the Court of Appeals' decision to reverse a trial court decision granting summary judgment to Bargersville's favor to stand. Perhaps the Indiana Law Blog has more information on Justice Sullivan's past recusals.

UPDATE: Apparently retired Justice Sullivan's words of support for Massa's decision not to recuse himself in the Rockport case is a case of "do what I say" as opposed to "do what I did." Here's a list of more than 60 cases I uncovered where Justice Sullivan chose not to participate while he served as a member of the Indiana Supreme Court. This list is not necessarily exhaustive. Because he never states why he chose not to participate in the case, it's left to the reader to speculate on the reasons. I would point out that Sullivan's wife, Cheryl Sullivan, formerly served as Secretary of Family & Social Services for a number of years beginning in the administration of former Gov. Evan Bayh.

Mendenhall v. State, 967 N.E.2d 1035 (Ind. 2012)

In re Mendenhall, 959 N.E.2d 254 (Ind. 2012)

State v. International Business Machines Corporation, 49S00-1201-PL-15 (Ind. 2012)

Murphy v. Fisher, 932 N.E.2d 1235 (Ind. 2010)

Runkle v. Runkle, 929 N.E.2d 785 (Ind. 2010)

Developmental Services Alternatives, Inc. v. Family Social Services Admin., 929 N.E.2d 784 (Ind. 2010)

Crossley v. State, 915 N.E.2d 978 (Ind. 2009)

Filice v. State, 898 N.E.2d 1216 (Ind. 2008)

D.L. v. Marion County DCS, 891 N.E.2d 53 (Ind. 2008)

In re A.B., 891 N.E.2d 42 (Ind. 2008)

In re I.C., 891 N.E.2d 40 (Ind. 2008)

In re E.K., 891 N.E.2d 37 (Ind. 2008)

In re K.M., 878 N.E.2d 222 (Ind. 2007)

In Matter of J.M., 878 N.E.2d 219 (Ind. 2007)

Dillon v. State, 878 N.E.2d 212 (Ind. 2007)

In re E.S., 878 N.E.2d 212 (Ind. 2007)

In re J.B., 878 N.E.2d 208 (Ind. 2007)

Hightower v. State, 878 N.E.2d 206 (Ind. 2007)

McWhirter v. Marion County OFC, 869 N.E.2d 458 (Ind. 2007)

In re F.D., 869 N.E.2d 454 (Ind. 2007)

Dillard v. Marion County OFS, 869 N.E.2d 453 (Ind. 2007)

In re J.T., 869 N.E.2d 452 (Ind. 2007)

Winchester v. Tippecanoe County Div. of Child Services, 869 N.E.2d 452 (Ind. 2007)

A.M. v. Marion County Office of Family and Children, 869 N.E.2d 453 (Ind. 2007)
In re A.L.D., 869 N.E.2d 451 (Ind. 2007)
In re T.M.W.W., 869 N.E.2d 447 (Ind. 2007)
In re D.B., 869 N.E.2d 446 (Ind. 2007)
In re T.M.W.W., 869 N.E.2d 445 (Ind. 2007)
M.A. v. Miami County OFC, 860 N.E.2d 599 (Ind. 2006)
Doty v. Jennings County OFC, 860 N.E.2d 600 (Ind. 2006)
In re E.E., 860 N.E.2d 600 (Ind. 2006)
Wilhoite v. Madison County OFC, 860 N.E.2d 600 (Ind. 2006)
Swinscoe v. Dep't of Child Servs., 860 N.E.2d 599 (Ind. 2006)
I.T.R. v. Clay County Dept. of Child Serv., 860 N.E.2d 598 (Ind. 2006)
In re C.C., 860 N.E.2d 597 (Ind. 2006)
In re G.H., 860 N.E.2d 594 (Ind. 2006)
In re A.M., 860 N.E.2d 593 (Ind. 2006)
In re K.H., 860 N.E.2d 590 (Ind. 2006)
McLaughlin v. Tippecanoe County OFC, 860 N.E.2d 588 (Ind. 2006)
In re S.P., 860 N.E.2d 588 (Ind. 2006)
In re K.P., 860 N.E.2d 584 (Ind. 2006)
Barnes v. Knox County OFC, 855 N.E.2d 1012 (Ind. 2006)
A.H. v. Marion County OFC, 855 N.E.2d 1010 (Ind. 2006)
K.D. & K.S. v. Marion County OFC, 855 N.E.2d 1010 (Ind. 2006)
R.L. v. State, 855 N.E.2d 1010 (Ind. 2006)
B.A.H. v. Ripley County OFC, 855 N.E.2d 1010 (Ind. 2006)
N.D.L. v. Elkhart Office of Family and Children, 855 N.E.2d 1010 (Ind. 2006)
B.A.H. v. Ripley County OFC, 855 N.E.2d 1010 (Ind. 2006)
N.D.L. v. Elkhart Office of Family and Children, 855 N.E.2d 1010 (Ind. 2006)
Bruce v. Tippecanoe County OFC, 855 N.E.2d 1008 (Ind. 2006)
Castro v. Monroe County OFC, 855 N.E.2d 1008 (Ind. 2006)
In re C.M., 855 N.E.2d 1008 (Ind. 2006)
In re M.H., 855 N.E.2d 1008 (Ind. 2006)
Wright v. Tippecanoe Office of Family & Children, 855 N.E.2d 1008 (Ind. 2006)
In re A.R., 855 N.E.2d 1006 (Ind. 2006)
In re L.S., 855 N.E.2d 1001 (Ind. 2006)
Oakes v. Oakes, 841 N.E.2d 180 (Ind. 2005)
Sims v. Marion County Office of Family & Children, 841 N.E.2d 176 (Ind. 2005)
Wreh v. Marion County OFC, 841 N.E.2d 176 (Ind. 2005)
McClain v. Review Bd. of Indiana Dept. of Workforce Development, 693 N.E.2d 1314 (Ind. 1998)
Walker v. State, Muscatatuck State Development Center, 694 N.E.2d 258 (Ind. 1998)
Sullivan v. Day, 681 N.E.2d 713 (Ind. 1997)
D & M Healthcare, Inc. v. Kernan, 800 N.E.2d 898 (Ind. 2003)