IN RE: Theresa M. BRENNAN (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 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

I agree with the majority’s factual findings, conclusion of misconduct, and decision to remove respondent, Theresa M. Brennan, from office. I write separately to express my concerns regarding this Court’s authority to also impose a conditional suspension upon respondent.

Under Const. 1963, art. 6, § 30(2), this Court may “censure, suspend with or without salary, retire or remove a judge” for misconduct in office. These potential sanctions escalate in severity, leading to the ultimate sanction wherein the respondent is completely divorced from judicial office: removal. Given the arrangement of § 30(2) as an escalating list of sanction options, I question whether § 30(2) was intended to grant this Court the power to impose both a removal and a conditional suspension upon a respondent. See In re McCree, 495 Mich. 51, 88-89, 845 N.W.2d 458 (2014) (Cavanagh, J., concurring in part and dissenting in part).¹

That being said, I concede that this challenge appears to be foreclosed by this Court’s decision in In re McCree. There, this Court removed the respondent from his then-current office and imposed a conditional suspension. Id. at 56, 845 N.W.2d 458 (opinion of the Court). It also expressly rejected the respondent’s argument that this Court lacked the constitutional authority to impose such a sanction. Id. at 82-86, 845 N.W.2d 458. In reaching this conclusion, this Court relied on its earlier decision in In re Probert, 411 Mich. 210, 224, 308 N.W.2d 773 (1981), wherein this Court held that it was empowered to impose a conditional suspension upon a nonincumbent respondent because “it is immaterial to a [conditional] suspension ․ whether or not the disciplined party holds judicial office when the suspension is imposed.” In re Probert did not identify the source of its authority to impose a conditional suspension; it merely stated that “we have on at least three occasions issued conditional suspensions ․” Id. at 223-224, 308 N.W.2d 773. Those other occasions include In re Bennett, 403 Mich. 178, 200, 267 N.W.2d 914 (1978); In re Del Rio, 400 Mich. 665, 672, 256 N.W.2d 727 (1977); and In re Mikesell, 396 Mich. 517, 549, 243 N.W.2d 86 (1976), wherein this Court imposed suspensions on the respondent judges and indicated that the suspensions would apply regardless of the respondents' election or appointment to other judicial offices. In each of these cases, the suspensions occurred during the respondent’s current term of office and precluded judicial service if the respondent obtained another judicial seat during the term of the suspension. As stated, although those cases all involved active judges, this Court found that the fact that the respondent in In re Probert had already left office was “immaterial” to its authority to impose a conditional suspension without further discussion of its constitutional authority to do so. In re Probert, 411 Mich. at 224, 308 N.W.2d 773. In In re McCree, 495 Mich. at 56, 845 N.W.2d 458, this Court again expanded its suspension power by applying it to an active judge (unlike in In re Probert), whom the Court also removed (unlike in In re Bennett, In re Del Rio, In re Mikesell, and In re Probert). While I concede that this Court is bound by In re McCree’s determination that this Court has the authority to impose both a removal and a conditional suspension on a respondent judge, I am troubled by the constitutional analysis applied in McCree and its reliance on distinguishable caselaw to arrive at that determination. Given that respondent does not seek to have McCree overruled or provide any basis to distinguish McCree, I concur in the result of the majority’s decision.

FOOTNOTES

1.   See In re Morrow, 496 Mich. 291, 298, 854 N.W.2d 89 (2014).

2.   In re Probert, 411 Mich. 210, 237, 308 N.W.2d 773 (1981).

3.   In re McCree, 495 Mich. 51, 74, 845 N.W.2d 458 (2014) (quotation marks and citation omitted).

4.   In re Simpson, 500 Mich. 533, 558, 902 N.W.2d 383 (2017) (quotation marks, citation, and brackets omitted).

5.   Id. (quotation marks and citations omitted).

6.   In re Morrow, 496 Mich. 291, 302, 854 N.W.2d 89 (2014) (quotation marks and citation omitted).

7.   McCree, 495 Mich. at 74, 845 N.W.2d 458 (quotation marks and citation omitted).

8.   Respondent has not argued that MCR 9.104, which governs professional disciplinary proceedings before the Attorney Disciplinary Board, is not applicable in this context. Therefore, we need not decide this question. See Simpson, 500 Mich. at 555 n. 26, 902 N.W.2d 383.

9.   In re Brown, 461 Mich. 1291, 1292-1293, 625 N.W.2d 744 (1999).

10.   We note that we are imposing a six-year conditional suspension effective on the date of this opinion, instead of having the removal extend through the next judicial term as requested by the commission.

11.   We are not often confronted with the multifarious acts of misconduct that are present in this case. The individual findings of misconduct range from those warranting the most severe sanction of removal (such as lying under oath) to those that are still unacceptable, but might warrant a lesser sanction (such as respondent’s improper demeanor on the bench). But we are not called upon to assess an appropriate sanction for each discrete finding of misconduct. Instead, we must determine the appropriate sanction for all of respondent’s misconduct taken as a whole. We note, however, that “[t]his Court has consistently imposed the most severe sanction by removing judges for testifying falsely under oath.” In re Adams, 494 Mich. 162, 186, 833 N.W.2d 897 (2013) (citing multiple cases). And we have previously found a conditional suspension appropriate when a judge “has not yet learned from his mistakes and that the likelihood of his continuing to commit judicial misconduct is high.” McCree, 495 Mich. at 86, 845 N.W.2d 458.

12.   The concurrence questions this Court’s power to suspend a judge beyond her current term of office. Because no party has raised those issues here, we decline to address those issues in this case.

1.   To the extent that the additional imposition of suspension on a removed judge is designed to impose continuing consequences on that respondent, I submit that the Attorney Grievance Commission holds authority and discretion to impose such consequences by determining whether discipline such as the suspension or revocation of a respondent’s law license is warranted.

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.