Will Snyder take the high road in naming a high-court justice?

1/11/2013

DETROIT— The only thing surprising about the decision by scandal-plagued Democratic Justice Diane Hathaway to retire from the Michigan Supreme Court halfway through her term was that it took so long.

The question, however, is this: In naming her replacement, will Gov. Rick Snyder seize this opportunity to act on the recommendations of a blue-ribbon bipartisan court reform panel, or will he again act as if the court was designed to be a dumping ground for political hacks?

The Hathaway mess has brought new disgrace to a court that a 2008 University of Chicago study found to be the most politicized and least respected state Supreme Court in the nation.

Her days have been numbered since last spring, when a Detroit TV station aired a story about irregularities in a sale a little more than a year ago of a home she and her attorney husband owned in Grosse Pointe Park.

As time went on, the more that was known about this deal, the worse it looked. Eventually, a civil suit was filed in U.S. District Court.

Then, on Monday, Michigan’s Judicial Tenure Commission filed a 19-page complaint against her, charging that she had broken federal money-laundering laws and federal and state tax laws, and had committed more than a dozen violations of law, ethics, standards of conduct, and judicial canons.

Essentially, what Ms. Hathaway and her husband, Stephen Kingsley, are supposed to have done was temporarily transfer other properties they owned, including a home in Florida, to relatives to get a bank to let them qualify for what’s called a short sale.

That allowed them to write off $600,000 of mortgage debt on the Grosse Pointe Park home they sold. Subsequently, the complaint says, the houses were deeded back to Ms. Hathaway and her husband.

What will happen to the justice after she leaves the court on Jan. 21 is not known. The federal government has attempted to seize her Florida home. Republicans are calling loudly for her to forfeit her pension, which she qualifies for based on both her four years on the state Supreme Court and time on Wayne County’s Circuit Court.

Governor Snyder gets to name a replacement. This almost certainly will turn the court’s four-to-three GOP majority into a heavier five-to-two advantage.

Legally, governors can pick whomever they like in a situation like this. The process normally has been intensely political.

But there is a bipartisan blueprint for a better way. Last April, the Michigan Judicial Selection Task Force released its final report, which includes recommendations on how to improve the process.

The task force had as impressive a pedigree as could be imagined. The honorary chairman was retired U.S. Supreme Court Justice Sandra Day O’Connor, a Republican and the first woman to serve on the nation’s highest court. The two working chairmen were U.S. Court of Appeals Judge James Ryan, another Republican, and former Michigan Supreme Court Chief Justice Marilyn Kelly, a Democrat.

The task force, which studied the court system for more than a year, was the brainchild of Justice Kelly. In a 2011 interview, she told me that she had been deeply concerned over the Michigan Supreme Court’s integrity and its public image, and wanted to do something to improve both.

The task force recommended the governor name an advisory screening commission of lawyers and nonlawyers. The commission would accept applications from those who sought appointment to the high court and conduct open public hearings on the applicants’ merits.

Eventually, the commission would recommend three to five of those who were best qualified to the governor, who would pick one.

“This process would leave the governor’s ultimate authority to appoint justices intact. But the justices the governor appoints by this method would no longer need to worry about the public perception of their qualifications,” the report added. “The task force respectfully asks Governor Snyder to adopt this practice in his current administration.”

“This is a wonderful opportunity and it would be a wonderful idea if the governor were to seize the moment,” just-retired Justice Kelly said when reached at home Tuesday.

During their deliberations, she said, task force members met with the governor. She said he acted interested in their suggestions, but was “politely noncommittal.” The state’s largest newspaper has urged him to adopt the task force’s suggestion for the vacancy.

But repeated calls and emails to the governor’s office about the issue produced no comment the day after it was confirmed that Justice Hathaway would leave the bench.

Instead, speculation centered on the possibility that Governor Snyder instead would appoint Oakland County Circuit Judge Colleen O’Brien to the vacancy. However, she was a candidate for the Michigan Supreme Court in November’s general election. Voters rejected her. Judge O’Brien finished behind the two winning candidates, one from each party, and even behind a second Democrat who also lost.

Appointing her might seem to be defying the will of the people. Trying the method suggested by a task force led by former Justice O’Connor might seem to be not only precedent-setting good government, but also good sense.

Jack Lessenberry, a member of the journalism faculty at Wayne State University in Detroit and The Blade’s ombudsman, writes on issues and people in Michigan.

Contact him at: omblade@aol.com