Commentary: Disorder in the court

Nov 21, 2012

Let’s start by saying something we should never forget: In America, anyone accused of a crime is innocent until proven guilty.

Michigan Supreme Court Justice Diane Hathaway hasn’t even been accused of a criminal offense. But in a development that has been expected for months, U.S. District Attorney Barbara McQuade has filed civil charges accusing the justice and her husband of real estate fraud. The complaint alleges that they, quote “systematically and fraudulently transferred property and hid assets.”

What happened, according to the feds, was this: Two years ago, the Hathaways wanted to arrange a so-called short sale of a home they owned in the Detroit area. In other words, they wanted to sell the house for less than they owed on their mortgage. 

Traditionally, banks only let homeowners do that when they are able to show they are suffering from a financial hardship.

What the Hathaways allegedly did was hide their assets by temporarily transferring the ownership of two other houses to Justice Hathaway’s stepchildren. They transferred one house in Florida to her husband’s daughter. After the short sale, the Florida house was transferred back to the Hathaways. No money changed hands.

The district attorney says this was a clear case of hiding assets. The DA is now asking the government for permission to seize the Florida house and its contents. If what the government alleges is true, it seems pretty clear that regardless of whether the justice is charged with a crime, she was guilty of criminal behavior.

Now there may be some logical explanation for all of this, though you would think we would have heard it by now. This story first surfaced in a TV news report six months ago.

This comes at an especially unfortunate time in the history of the high court. A few years ago, a University of Chicago study ranked Michigan’s Supreme Court dead last in respect among the nation’s 50 top state courts, and this episode won’t help.

What also doesn’t help is that the court is -- disgustingly in my view -- tied up with partisan politics. Hathaway is a Democrat. Republicans have a 4-3 majority on the court. If she resigns, Governor Snyder would almost certainly name a  Republican to replace her, giving them a 5-2 majority on a court whose decisions too often seem politically motivated.                                                                                                 

Michigan also needs to get this mess behind us as quickly as possible.  So here’s a reasonable suggestion. Hathaway should agree to resign ASAP. In return, the governor promises to name a Democratic justice to the court -- but one who will agree not to run in two years, when the seat goes before the voters.

That would be to everyone’s advantage. It wouldn’t alter the balance of power, and both parties would have an equal chance at an open seat in 2014. If Justice Hathaway does manage to clear her name, she could run for her old position then.

You may think that sounds like an idealistic pipe dream, but it would be a way of getting this behind us, by means of what our governor likes to call “relentless positive action.”

And governor, if you like my idea, don’t worry. You’ll be happy to know that I don’t want any credit.

Jack Lessenberry is Michigan Radio’s political analyst. Views expressed in the essays by Lessenberry are his own and do not necessarily reflect those of Michigan Radio, its management or the station licensee, The University of Michigan.