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Judge Theresa Brennan faces formal complaint for misconduct in office
Kayla Daugherty, Livingston Daily Published 3:05 p.m. ET June 12, 2018 | Updated 8:48 p.m. ET June 12, 2018
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The Michigan Judicial Tenure Commission filed a formal complaint Tuesday against Livingston County District Court Judge Theresa Brennan for misconduct in office, more than a year after her affair with a Michigan State Police detective came to light.
The commission also accused Brennan of misusing her office for personal advantage or gain, failing to maintain high standards of conduct, failing to respect and follow the law and allowing social and other relationships to influence her conduct or judgment.
It also said she used the prestige of office to advance her personal business interests and failed to be “patient, dignified and courteous” to lawyers.
The Livingston Daily reported in April of 2017 that Brennan was under investigation by the JTC after transcripts from depositions in her divorce proceedings showed she was having an affair with a Michigan State Police detective Sean Furlong, the lead investigator in a murder trial she presided over. Police searched her home and office in May of 2017.
Furlong retired from the Michigan State Police last year. Brennan has been on the district court bench since 2005.
Brennan did not immediately respond for a request for comment.
Whose cases did Brennan hear?
The Tenure Commission took the unusual step in December of confirming it was investigating Brennan.
The JTC alleges Brennan failed to disclose her relationships with Furlong, local attorney and friend Shari Pollesch and Circuit Court Administrator Francine Zysk when she heard cases involving them, behaved improperly during depositions, showed questionable demeanor during court hearings and had court staff conduct some of her personal business.
The murder trial during which Brennan was having an affair involved Jerome Walter Kowalski, who was convicted to killing his brother and sister-in-law in their home in 2008. In May 2013, Brennan sentenced Kowalski to life in prison
Livingston County Prosecutor Bill Valliencourt said he is reviewing the criminal case.
"As a result of my request for an investigation, I was contacted today by the Judicial Tenure Commission and advised that they have filed a public Complaint against District Judge Theresa Brennan," Valliencourt said in a statement.
"We are reviewing the details of the Complaint and will be in contact with representatives of Mr. Kowalski to determine the next steps regarding Mr. Kowalski’s convictions. The Complaint sets forth a course of behavior by the judge that is both outrageous and unacceptable. We will take the appropriate action to ensure that justice is done in the criminal case. Ultimately, the Michigan Supreme Court is the only entity with the authority to suspend or remove a sitting judge."
Calls for Brennan's resignation
In recent days, calls for her resignation have intensified, coming from both state legislators and county elected officials.
Sen. Joe Hune, R-Fowlerville, released a letter last Friday, June 8 , urging the JTC to release their findings. Today Hune reaffirmed his call for Brennan's resignation in a release supporting the JTC's complaint.
“I’m glad the commission was finally able to do its duty and file a formal complaint against Judge Brennan,” Hune said. “ It’s comforting to know that justice is still in the justice system, and hopefully this means that Brennan won’t be harming people anymore from her position of power.”
Last month, the Michigan Court of Appeals removed Brennan from a divorce case citing her "egregious" behavior and saying she showed "apparent hostility" toward the defendant in the case. The case was sent to a different judge.
Tom Kizer, a Howell attorney and former Livingston County prosecutor sent a letter to the Tenure Commission more than a year ago questioning why the agency had taken no action.
"The judicial system's black eye is going to start mending a little," Kizer said Tuesday after hearing about the JTC's complaint. "The fact that the JTC has finally begun to address with formal action that which has been pending for far too long is a good thing. It is, I hope, the beginning of the end of the abusive behavior many have suffered at her hands."
Calls for Brennan's resignation grow as state legislators, county commissioners join chorus
Retired Livingston County judge asks for grand jury to review Brennan behavior
Court removes Theresa Brennan from divorce case, cites pattern of 'apparent hostility'
Kizer represented Brennan's now ex-husband, Don Root, in the couple's divorce.
Brennan is also named as a defendant in a federal lawsuit filed by Zysk which alleges she refused to communicate with Zysk regarding a court-related matter and was a "bully of epic proportions."
And in recent weeks, retired Judge Daniel Burress requested a grand jury investigation into Brennan’s behavior.
Brennan has 14 days to respond, and a master's report will be filed after a formal hearing is held. The commission can either dismiss the complaint or recommend sanctions to the Michigan Supreme Court, which has the authority to issue any formal decision.
The commission's findings
• Brennan tried to conceal and failed to disclose the full extent of her relationship with Furlong, who was a significant prosecution witness in the case against Kowalski, which was assigned to Brennan.
• Brennan had “substantial contact” with Furlong, including dinners and parties at bars, restaurants or her home, trips to her cottage and various sporting events and concerts, while the case was pending. She also had numerous private telephone conversations with Furlong and “routinely” exchanged texts with the detective.
• Brennan failed to disqualify herself from the case based on her contact with Furlong, and her failure to accurately disclose her relationship with the investigator prevented another judge from making an informed decision on a disqualification motion.
• Brennan failed to disclose her close personal relationship to attorney and friend Shari Pollesch during cases in which Pollesch or her firm appeared before her, nor did she seek to disqualify herself.
• Brennan failed to disclose her close working and personal relationships with Zysk when she presided over Zysk’s divorce proceedings and didn’t seek to disqualify herself for a conflict of interest.
• Brennan failed to produce a signed copy of her disqualification from her own divorce case until six days after she knew the complaint had been filed, and two days after she knew her husband had filed an emergency ex parte motion seeking a restraining order for the parties to preserve evidence.
• Brennan instructed her then-secretary and court recorder, Kristi Cox, to handle personal tasks for the judge while being paid as a county employee. Those tasks included banking, paying bills, shopping, picking up coffee or food, dropping off mail and washing her car. Brennan also had Cox work on her 2008 and 2014 elections campaigns during work hours.
• Brennan also had an attorney magistrate for the court handle similar personal tasks for her and work on one of her campaigns.
Messages were left seeking comment with Zysk and Pollesch.