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In re Brennan

Supreme Court of Michigan

June 28, 2019

In re THERESA M. BRENNAN, Judge 53rd District Court BEFORE THE JUDICIAL TENURE COMMISSION

          Argued June 19, 2019

          Chief Justice: Bridget M. McCormack, Chief Justice Pro Tem: David F. Viviano, Stephen J. Markman, Brian K. Zahra, Richard H. Bernstein, Elizabeth T. Clement, Megan K. Cavanagh.

         The Judicial Tenure Commission filed a formal complaint against 53rd District Court Judge Theresa M. Brennan alleging 17 counts of judicial misconduct related to both her professional conduct and to her conduct during her divorce proceedings. The Supreme Court appointed retired Wayne Circuit Court Judge William J. Giovan to act as master to hear the complaint. With the permission of the commission, its deputy executive director petitioned for the interim suspension of respondent. The Supreme Court denied the petition without prejudice to the commission filing such a petition. 503 Mich. 943 (2019). The commission thereafter petitioned for the interim suspension of respondent without pay. The Supreme Court granted the petition for interim suspension but with pay. 503 Mich. 952 (2019). After a hearing, the master concluded by a preponderance of the evidence that respondent had committed misconduct in office with respect to all but one count of the second amended complaint. In particular, the master found that respondent had (1) failed to disclose when she presided over People v. Kowalski (Livingston Circuit Court Case No. 08-17643-FC) that she was involved in a romantic relationship with the principal witness, Detective Sean Furlong, and did not disqualify herself from the case on that basis; (2) failed to immediately disqualify herself from hearing her own divorce case and destroyed evidence even though she knew that her then-estranged husband had filed an ex parte motion to preserve evidence; (3) failed to disclose her relationship with attorney Shari Pollesch or to disqualify herself from hearing cases in which Pollesch or her firm served as counsel for a party; (4) made false statements under oath when deposed in her divorce case; (5) made false statements during certain cases over which she presided regarding her relationships with Furlong and Pollesch; (6) made false statements under oath to the commission; (7) verbally abused attorneys, litigants, witnesses, and employees; (8) directed employees to perform personal tasks for her during work hours; (9) directed employees to perform work for her judicial campaign during work hours; and (10) interrupted two depositions she attended during her divorce case. The commission reviewed the hearing transcript, the exhibits, and the master's report and concluded that the examiner had established by a preponderance of the evidence that respondent had engaged in judicial misconduct and conduct prejudicial to the administration of justice, including failing to disclose relevant facts regarding her relationship with the lead detective in a criminal case over which she presided, failing to disclose her relationship with an attorney representing a litigant in a case over which she presided, failing to immediately recuse herself from hearing her own divorce case, tampering with evidence in her own divorce case, and lying under oath. The commission recommended that respondent be removed from judicial office and that she be ordered to pay costs, fees, and expenses under MCR 9.205(B) because of her intentional misrepresentations and misleading statements to the commission. Respondent petitioned the Supreme Court, requesting that the Court reject the commission's recommendation.

         In a unanimous memorandum opinion, the Supreme Court held:

         The commission's findings of fact were supported by the record, and its conclusions of law and analysis, under In re Brown, 461 Mich. 1291 (1999), of the appropriate sanctions were correct. The cumulative effect of respondent's misconduct required her removal from office and imposition of a conditional six-year suspension. The more serious sanction was warranted because six of the seven Brown factors weighed in favor of a more serious sanction; the most severe sanction was particularly warranted because respondent made false statements under oath, tampered with evidence in her divorce proceeding, and failed to disclose the extent of her relationship with Furlong during the Kowalski trial. Defendant's argument that the participating members of the commission should have disqualified themselves was without merit. Respondent was ordered to pay costs, fees, and expenses under MCR 9.205(B) in light of the intentional misrepresentations and misleading statements she made in her written responses to the commission and during her testimony at the public hearing.

         Respondent ordered removed from her current office and suspended from holding judicial office for six years; commission ordered to submit an itemized bill of costs, fees, and expenses incurred in prosecuting the complaint.

         Justice Clement, joined by Justice Cavanagh, concurring, agreed with the majority's factual findings, conclusion of misconduct, and decision to remove respondent from office, but wrote separately to express her concern regarding the Court's authority under Const 1963, art 6, § 30(2) to impose both a removal and a conditional suspension on respondent. Although the Court was bound on this issue by In re McCree, 495 Mich. 51 (2014), which held that the Supreme Court had authority to impose both a removal and a conditional suspension on a respondent judge, McCree relied on distinguishable caselaw and contained troubling constitutional analysis. Justice Clement joined the majority opinion in full because respondent did not seek to overrule In re McCree and did not provide a basis for distinguishing the case.

         BEFORE THE ENTIRE BENCH

          MEMORANDUM OPINION

         On June 19, 2019, the Court heard oral argument concerning the findings and recommendation of the Judicial Tenure Commission in this matter. The commission's Decision and Recommendation for Discipline is attached as an exhibit to this opinion.

         This Court has conducted a de novo review of the commission's findings of fact, conclusions of law, and recommendations for discipline.[1] Having done so, we adopt in part the recommendations made by the commission. Effective immediately, we order that respondent, 53rd District Court Judge Theresa M. Brennan, be removed from office. In addition, we impose a six-year conditional suspension without pay effective on the date of this decision. Should respondent be elected or appointed to judicial office during that time, respondent "will nevertheless be debarred from exercising the power and prerogatives of the office until at least the expiration of the suspension."[2] Our order of discipline is based on the following misconduct alleged in the second amended complaint:

(1) Respondent failed to disclose the extent of her relationship with Detective Sean Furlong, a witness in People v. Kowalski, Case No. 08-17643-FC, to the parties in that case (Counts I and V);
(2) Respondent failed to disclose the extent of her relationship with attorney Shari Pollesch and Pollesch's law firm in several cases over which respondent presided (Count II);
(3) Respondent failed to immediately disqualify herself from her own divorce proceeding and destroyed evidence in that divorce proceeding even though she knew that her then-estranged husband had filed an ex parte motion for a mutual restraining order regarding the duty to preserve evidence (Counts IV and XVI);
(4) Respondent made false statements (a) during court proceedings over which she presided, (b) to the commission while under oath during these proceedings, and (c) while testifying at her deposition under oath in her divorce proceeding (Counts XIII, XIV, and XVII);
(5) Respondent was persistently impatient, undignified, and discourteous to those appearing before her (Counts IX, X, and XV);
(6) Respondent required her staff members to perform personal tasks during work hours (Count XI);
(7) Respondent allowed her staff to work on her 2014 judicial campaign during work hours (Count XII); and
(8) Respondent improperly interrupted two depositions that she attended during her divorce proceeding (Count VII).

         "The purpose of the judicial disciplinary process is to protect the people from corruption and abuse on the part of those who wield judicial power."[3] When evaluating a recommendation for discipline made by the commission, "[t]his Court gives considerable deference to the [commission's] recommendations for sanctions, but our deference is not a matter of blind faith."[4] "Instead, it is a function of the [commission] adequately articulating the bases for its findings and demonstrating that there is a reasonable relationship between such findings and the recommended discipline."[5] "This Court's overriding duty in the area of judicial discipline proceedings is to treat equivalent cases in an equivalent manner and . . . unequivalent cases in a proportionate manner."[6] "In determining appropriate sanctions, we seek to restore and maintain the dignity and impartiality of the judiciary and to protect the public."[7]

         In this case, we adopt the commission's findings of fact because our review of the record reveals that they are amply supported. In addition, we agree with the commission's conclusions of law and analysis of the appropriate sanction. Regarding the commission's conclusions of law, we agree that respondent violated Canons 1, 2(A), 2(B), and 7(B)(1)(b) of the Code of Judicial Conduct; committed misconduct under MCR 9.104(1) to (4)[8]; engaged in "misconduct in office" and "conduct clearly prejudicial to the administration of justice" under Const 1963, art 6, § 30(2) and MCR 9.205(B); and violated the standards or rules of professional conduct adopted by the Supreme Court, contrary to MCR 9.104(4). Regarding the commission's disciplinary analysis, we agree with the commission that six of the seven factors articulated in In re Brown[9] weigh in favor of a more serious sanction, and we conclude that the sanction we have imposed in this case is proportional to sanctions imposed in other judicial-misconduct cases.[10] We are particularly persuaded that these most severe sanctions are necessary because of respondent's misconduct in making false statements under oath, in tampering with evidence in her divorce proceedings, and in failing to disclose the extent of her relationship with Detective Furlong in People v. Kowalski.[11]

         We have considered respondent's argument that the participating members of the commission should have disqualified themselves. We find respondent's argument to be without merit.

         On the basis of the intentional misrepresentations and misleading statements in respondent's written responses to the commission and during her testimony at the public hearing, we find respondent liable under MCR 9.205(B), in an amount subject to review by this Court, for the costs, fees, and expenses incurred by the commission in prosecuting the complaint. We order the commission to submit an itemized bill of costs.

         The cumulative effect of respondent's misconduct convinces this Court that respondent should not remain in judicial office. Therefore, we remove respondent from office and conditionally suspend her without pay for a period of six years, with the suspension becoming effective only if respondent regains judicial office during that period.[12] Pursuant to MCR 7.315(C)(3), the Clerk of the Court is directed to issue the order removing and suspending respondent from office forthwith.

         EXHIBIT

         STATE OF MICHIGAN

         BEFORE THE JUDICIAL TENURE COMMISSION

         COMPLAINT AGAINST: HON. THERESA M. BRENNAN Formal Complaint No. 99 53rd District Court 224 N. First Street Brighton, MI 48116

         DECISION AND RECOMMENDATION FOR DISCIPLINE

         At a session of the Michigan Judicial Tenure Commission held on April 8, 2019, in the City of Detroit

         PRESENT:[1]

         Hon. Monte J. Burmeister, Chairperson, Thomas J. Ryan, Esq., Vice-Chairperson, Hon. Karen Fort Hood, Secretary, Ari Adler, Hon. Jon H. Hulsing, Melissa B. Spickler, Hon. Brian R. Sullivan

         I. Introduction

         The Judicial Tenure Commission of the State of Michigan ("Commission") files this recommendation for discipline against Hon. Theresa M. Brennan ("Respondent"), who at all material times was a judge of the 53rd District Court ("the Court") in the City of Brighton, County of Livingston, State of Michigan. This action is taken pursuant to the authority of the Commission under Article 6, § 30 of the Michigan Constitution of 1963, as amended, and MCR 9.203.

         Having reviewed the hearing transcript, the exhibits, and the Master's report, and having considered the oral arguments of counsel, the Commission concludes, as did the Master, that the Examiner has established by a preponderance of the evidence that Respondent committed misconduct, including failing to disclose relevant facts regarding her relationship with a lead detective in a criminal case before her, failing to disclose relevant facts regarding her relationship with an attorney representing a litigant in a case before her, failing to immediately recuse herself from her own divorce case, tampering with evidence in her own divorce case, and lying under oath.

         For the reasons set forth herein, the Commission recommends that the Supreme Court remove Respondent from the office of judge of the 53rd District Court on the basis of her judicial misconduct. In addition, the Commission recommends that the Supreme Court order Respondent to pay costs, fees, and expenses in the amount of $35, 570.36 pursuant to MCR 9.205(B), based on her intentional misrepresentations and misleading statements made to the Commission.

         II. Procedural Background

         On June 12, 2018, the Commission filed a Formal Complaint against Respondent. On July 23, 2018, the Commission filed its First Amended Complaint against Respondent, alleging (1) failure to disclose the extent of her relationship with Detective Sean Furlong, or to disqualify herself, in People v. Kowalski, (2) failure to disclose the extent of her relationship with Shari Pollesch and Pollesch's law firm in several cases before her, (3) failure to disclose her relationship with Francine Zysk a/k/a Francine Sumner, or to disqualify herself, in Zysk/Sumner's divorce case, (4) failure to disqualify herself from her own divorce case, Root v. Brennan, (5) appearance of impropriety regarding Sean Furlong, (6) appearance of impropriety regarding Francine Zysk, (7) conduct during depositions in Root v. Brennan, (8) failure to be faithful to the law in Brisson v. Terlecky, (9) improper demeanor in Brisson v. Terleclcy, (10) improper demeanor in Sullivan v. Sullivan, (11) directing staff to conduct Respondent's personal tasks on court time, (12) improper campaign activities, (13) misrepresentations during court proceedings, and (14) misrepresentations to the Commission.

         The Michigan Supreme Court appointed Hon. William J. Giovan as Master, to conduct a public hearing on the allegations in the Formal Complaint. The Master held an eight-day public hearing on the First Amended Complaint, commencing October 1, 2018. The Commission filed its Second Amended Complaint on October 29, 2018, deleting Count III regarding failure to disclose or disqualify with respect to Francine Zysk and Count VI regarding an appearance of impropriety with respect to Francine Zysk, and adding claims for persistent discourtesy (Count XV), destruction of evidence (Count XVI), and perjury, false statements, and misrepresentations (Count XVII). Due to the additional charges, the Master held an additional day of testimony on November 19, 2018.

         In the Master's Findings of Fact and Conclusions of Law, issued on December 20, 2018, the Master concluded by a preponderance of the evidence that Respondent committed misconduct in office with respect to all but one count in the Second Amended Complaint.[2] The Commission heard objections to the Master's report at a hearing held on March 4, 2019.

         III. Standard of Proof

         The standard of proof applicable in judicial disciplinary matters is the preponderance of the evidence standard. In re Ferrara, 458 Mich. 350, 360; 582 N.W.2d 817 (1998). The Examiner bears the burden of proving the allegations in the Complaint. MCR 9.211(A). The Commission reviews the master's findings de novo. In re Chrzanowski, 465 Mich. 468, 480-481; 636 N.W.2d 758 (2001). Although the Commission is not required to accept to the master's findings of fact, it may appropriately recognize and defer to the master's superior ability to observe the witnesses' demeanor and comment on their credibility. Cf. In re Lloyd, 424 Mich. 514, 535; 384 N.W.2d 9 (1986).

         IV. Findings of Fact

         The Commission adopts the Master's findings of fact, except where specifically noted below. The Commission highlights and supplements the facts found by the Master, as follows:

         Count I

         Failure to Disclose/Disqualify in People v. Kowalski

         In March 2009, People v. Kowalski, Case No. 08-17643-FC, in which the defendant was charged with first-degree murder, was assigned to Respondent. Michigan State Police Detective Sean Furlong was the co-officer in charge of the case. Detective Furlong investigated the case, took the defendant's confession, and testified at trial. Before the Kowalski case was assigned to Respondent, Respondent told her judicial secretary/court recorder Kristi Cox, that she was sure that Mr. Kowalski was guilty based on a conversation she had about the case with Detective Furlong. Nevertheless, Respondent presided over pretrial hearings in the case, ruling that the defendant's confession was admissible and that a defense expert witness was precluded from testifying at trial regarding false confessions. These rulings were affirmed on appeal.

         The case was scheduled for trial on January 7, 2013. On January 4, 2013, the assistant prosecutor assigned to the case received a letter from attorney Thomas Kizer, alleging inappropriate contacts between Respondent and Detective Furlong, and between Respondent and Detective Furlong's colleague, Detective Christopher Corriveau. At a pretrial conference in Respondent's chambers on January 4, 2013, the assistant prosecutor and defense counsel advised Respondent of the allegations of inappropriate contact. In response to the allegations, Respondent stated that, while she was friends with the two detectives, there was nothing that required her disqualification. Thereafter, Mr. Kowalski moved to disqualify Respondent from the case. Respondent denied the motion, explaining that, while she was friends with Furlong and Corriveau, the friendships did not affect her ability to fairly decide the case. Chief Judge David Reader later affirmed the denial of the motion to disqualify. At no time did Respondent inform the parties that she had told a member of the her staff that Detective Furlong had persuaded her of Mr. Kowalski's guilt before the case was assigned to her, that she had more than 1500 telephone calls of a social nature with Furlong between July 2008 and the beginning of the Kowalski trial, that she was on the phone with Furlong for 1-2 hours every month between November 2011 and the start of the Kowalski trial, or that she exchanged approximately 400 texts with Furlong from 2010 until the start of the Kowalski trial.

         The Master concluded that Respondent was engaged in a romantic relationship with Furlong before and during the Kowalski case. The Master's finding was based, at least in part, on evidence that Furlong kissed Respondent in her chambers in 2007, [3] and evidence that, after the Kowalski sentencing, Kristi Cox found Respondent in her office, severely distressed because Furlong had told her that they could no longer be friends. Respondent's distress was so severe that she was unable to take the bench for her afternoon docket. In addition to these incidents, the Master's conclusion was based on evidence that Respondent socialized with Furlong, that she allowed him to use her cottage, that Furlong had been a dinner guest at her home, and that Respondent's husband sometimes gave Furlong his University of Michigan football season tickets at Respondent's urging, as well as evidence of the number of telephone calls and texts between Respondent and Furlong.

         The Commission finds it unnecessary to determine whether the relationship between Respondent and Furlong was a romantic one. Regardless of whether the relationship was "romantic," as found by the Master, or a close friendship, the evidentiary record shows that Respondent was engaged in what was clearly a very close, personal relationship with Furlong during the relevant time period. The relationship required, at a minimum, that Respondent disclose the fact of her close, personal relationship to the parties in the Kowalski case so that the parties could determine whether to move for disqualification under MCR 2.003.[4]

         Coun ...


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