Supreme Court Removes Judge from Bench Due to Misconduct While in Office

In a recent opinion, the Michigan Supreme Court has removed Judge Theresa M. Brennan from the bench in the 53rd district in Livingston County. In re Theresa M. Brennan, Docket No. 157930, Filed June 28, 2019. In addition to her removal, the Supreme Court also imposed a six-year suspension without pay should Brennan be re-elected to office during the suspension. This sentence was based on the findings of the Judicial Tenure Commission made earlier in the year.

Background Facts

The alleged facts that lead to the removal of Theresa Brennan began around the time she was first appointed to the bench in 2005. Although a district court judge, Brennan had been sitting by assignment in the Circuit Court Family Division. At this time, as a petition for grand jury indictment alleges, Brennan began her social relationship with Detective Sean Furlong. This friendship quickly turned into a very public, romantic relationship, although both Brennan and Furlong denied such allegations despite ample evidence and testimony to the contrary. Brennan was also alleged to have had a romantic relationship with Shawn Ryan, an assistant prosecuting attorney for Livingston County. By assignment, Brennan presided over the murder trial of People v Walter Jerome Kowalski in 2013, in which Furlong was the detective in charge and a key witness for the People. When challenged about her relationship with the detective and whether or not she should recuse herself, Brennan denied the romantic allegations again, stating that it was just a friendship between herself and the detective, which was nothing to be concerned about. At one point during a deposition before the trial, Brennan interfered with the testimony of Detective Furlong regarding the contact he had with Brennan before the trial. Brennan’s decision not to recuse was upheld by the Michigan Supreme Court. Subsequently, Walter Kowalski was found guilty and sentenced to life without parole.

In addition to the alleged misconduct during the Kowalski trial, Brennan was also alleged to have tampered with evidence and refusal to disqualify herself once again during her own divorce proceedings, which were initiated by her husband in 2016. Brennan was accused of deleting items off of an iPhone that where to be used as evidence in the divorce proceedings. This occurred even after Brennan’s husband had filed a motion regarding the duty to preserve evidence. Brennan was also accused of making false statements to the tribunal not only during her divorce proceedings but also during several of the cases she presided over. Brennan was also noted to be “persistently impatient, undignified, and discourteous to those who appeared before her.” In re Brennan. In addition to her unprofessional manner, Brennan allegedly required her staff to perform her personal tasks during work hours, including booking plane tickets for Detective Furlong using county equipment, bringing Brennan gas for her car when she was stranded multiple times on the side of the road, and even bringing water samples from Brennan’s house to treatment plants to be tested. Based on these allegations, the Judicial Tenure Committee filed a formal complaint against Brennan for 17 counts of judicial misconduct.

Judicial Tenure Commission Findings

Due to the nature of the allegations against Brennan, the deputy director of the Judicial Tenure Commission petitioned the Supreme Court for the interim suspension of Brennan, which was denied. Thereafter, the deputy director re-petitioned the Supreme Court to suspend Brennan without pay, which the Supreme Court granted, but only to a suspension with pay. After a hearing on the complaint, the master of the proceedings found that Brennan had committed misconduct in office with respect to all but one count of the second amended complaint. Those counts were: (1) failed to disclose when she presided over People v Kowalski 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 a 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. Based on these findings, the master recommended an immediate removal of Brennan from judicial office and that Brennan should be ordered to pay costs, fees, and expenses associated with the hearing because of her intentional misrepresentations and misleading statements to the commission. Brennan then appealed to the Supreme Court.

The Supreme Court Review

After oral argument on the case, the Supreme Court issued a unanimous opinion stating that the Commission’s findings of fact were supported by the record and a preponderance of the evidence. Additionally, under In re Brown, 461 Mich 1291 (1999), the sanctions recommended by the Commission were appropriate. The Supreme Court thus upheld the immediate removal of Brennan from office and imposed a six year suspension without pay should Brennan be re-elected during the time period of the suspension. When assigning the most severe sanction, the Supreme Court cited the fact that Brennan had made false statements under oath, tampered with evidence, and refused to recuse herself from the Kowalski trial despite the obvious conflict of interest. The cumulative effect of these actions by Brennan convinced the Supreme Court that she was no longer fit for office and resulted in her removal from the bench.