In re Brennan

929 N.W.2d 290

IN RE Theresa M. BRENNAN, Judge 53rd District Court

Before the Judicial Tenure Commission

Docket No. 157930

Calendar No. 1

Supreme Court of Michigan.

Argued June 19, 2019

Decided June 28, 2019

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 Brown⁹ 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.

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

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 53^rd 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, inPeople 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 inRoot v Brennan, (8) failure to be faithful to the law inBrisson v Terlecky, (9) improper demeanor inBrisson v Terlecky, (10) improper demeanor inSullivan 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...