LANSING, Mich. (Detroit Free Press) - Michigan Supreme Court Justice Diane Hathaway announced today she will retire from the bench Jan. 21 after the Judicial Tenure Commission filed a formal complaint calling for her immediate suspension from the bench for alleged "blatant and brazen violations" of judicial conduct rules the commission said were "unprecedented in Michigan judicial disciplinary history."
Among the charges in the complaint is that Hathaway submitted false answers to the Judicial Tenure Commission during its recent investigation of private real estate transactions by Hathaway which are the subject of an FBI investigation.
The complaint gives the most detailed account to date of alleged efforts by Hathaway and her husband, attorney Michael Kingsley, to misrepresent their net worth so they could qualify for a short sale on their home in Grosse Pointe Park.
"The court has been advised by Justice Hathaway's counsel, Brian Einhorn, that she will retire as of Jan. 21," spokeswoman Marcia McBrien said shortly after the complaint was filed.. "In the interim, she has agreed not to participate in this week's oral arguments or any other Court matters.
Hathaway's pending retirement means Gov. Rick Snyder will be able to name her replacement, increasing the GOP majority on the court to 5-2 from 4-3.
Hathaway has 14 days to answer the complaint. The commission had asked for "immediate consideration" of its request for an interim suspension.
But Einhorn told the Free Press that Hathaway's pending retirement means the judicial complaint will be dropped. He said he told the JTC on Dec. 20 that Hathaway would retire Jan. 21 and they brought charges today only to "pander to the press." Einhorn said he has no knowledge of the status of the FBI investigation.
The Hathaway scandal is the biggest controversy to rock the state's highest court since 1975, when former Michigan Supreme Court Justice John Swainson was indicted by a federal grand jury and later convicted of perjury.
Hathaway, a Democratic nominee first elected to the court in 2008, has resisted calls for her to resign since news broke in October of an FBI investigation into fraud and money-laundering related to the 2011 short sale. In a short sale, a lender agrees to settle a mortgage debt through a sale that generates less than the amount owed on the property.
In a civil filing in November, the U.S. Justice Department accused Hathaway and her husband, attorney Michael Kingsley, of fraudulently concealing their net worth by temporarily transferring to a family member a home they own in Florida.
The short sale in Michigan allowed the couple to erase nearly $600,000 in mortgage debt on a $1.5-million home on Lakeview Court in Grosse Pointe Park, which sold for $850,000.
A civil forfeiture complaint by the Justice Department is often a precursor to criminal charges. Federal officials sought forfeiture of Hathaway's Florida home in Orange County, alleging it was the proceeds of bank fraud or money laundering.
Hathaway and Kingsley denied the allegations in a response filed by Detroit criminal defense attorney Steve Fishman.
On Dec. 19, U.S. District Judge Marianne O. Battani ordered a 90-day stay in the forfeiture case, agreed to by prosecutors and Fishman, which would allow for settlement negotiations.
The Judicial Tenure Commission complaint says Hathaway first began discussing a possible short sale with ING Bank in December 2008, shortly after she was elected to the Supreme Court.
The complaint alleges she and Kingsley did not fill out financial worksheets ING sent them and in 2010 retained a law firm to represent them in the short sale negotiations.
In a 2010 telephone conversation, Hathaway's attorney told ING that Hathaway planned to retire in 2011, the complaint says. Hathaway participated in the call and did not dispute the erroneous statement, the complaint alleges.
Michigan Supreme Court justices are technically nonpartisan, but they are nominated by political parties. Currently, Republican nominees hold a 4-3 majority on the court. Hathaway's retirement will increase that majority to 5-2. Supreme Court justices are paid $164,610 a year.
The Judicial Tenure Commission investigates alleged judicial misconduct and violations of the Michigan Code of Judicial Conduct and can recommend discipline by the Michigan Supreme Court. Discipline can range from censure to removal from office. Once it files a complaint, the Judicial Tenure Commission has the authority to seek a judge's interim suspension until a complaint is resolved.
The complaint filed today alleges fraud and money laundering by Hathaway. The Judicial Tenure Commission also asked for appointment of a "master" - usually a retired judge - who will preside over a public hearing at which the parties can call evidence. The application for interim suspension used the strongest language, alleging "blatant and brazen violations" by Hathaway.
Meanwhile, the Supreme Court is scheduled to hear oral arguments in several cases this week, starting Wednesday.
Hathaway's term is due to expire in 2017. Before joining the Michigan Supreme Court, Hathaway served 16 years on the Wayne County Circuit Court. She is a former assistant prosecutor in Macomb County.
Hathaway's real estate problems were first reported in May by WXYZ-TV (Channel 7).
Swainson, a Democrat, served as governor of Michigan in 1961 and 1962 before joining the Supreme Court in 1970. He was acquitted of a bribery conspiracy charge, but convicted of lying to a grand jury. He died in 1994.
By Paul Egan, Detroit Free Press Lansing bureau