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Lansing — A lawyer for an embattled Livingston County judge told the state’s high court Wednesday that his client should not be removed from the bench because there’s not enough proof of her wrongdoing.

But a representative for the Judicial Tenure Commission countered that there is proof District Judge Theresa Brennan committed at least seven instances of misconduct that merit her removal from the bench and should prevent her from resuming office should she run for and win re-election next year.

Brennan's lawyer Dennis Kolenda argued the Judicial Tenure Commission's allegations stemmed from an "unrequited desire" to find something wrong with Brennan's actions at the end of their months-long investigation. 

"Things didn't develop as the tenure commission thought they would," Kolenda said. "They're disappointed, not surprisingly, and they can't give up on what they thought was going to happen, but what has not been proven to have happened."

Justices asked some questions of Kolenda and the Judicial Tenure Commission's Lynn Helland during the roughly hour-long hearing, but are expected to rule on the issue at a later date. 

Earlier this year, after a lengthy investigation and hearing process, the commission said Brennan should be removed from the bench and pay roughly $35,570 in costs and expenses for making misleading statements to the commission. 

After Brennan filed a petition to reject the commission's decision, the Michigan Supreme Court agreed to hear arguments for and against her removal.

Judicial Tenure Commission investigators last year determined Brennan failed to disclose her relationships with a police officer involved in a homicide case over which she presided and with an attorney who appeared before her. Brennan also is accused of tampering with evidence in her divorce case, lying under oath, persistently abusing attorneys, witnesses and staff, and directing staff members to perform personal tasks for her during work hours.

Kolenda countered many of those allegations Wednesday, arguing there wasn't enough proof to support them. 

Brennan did not have a romantic relationship with former state police Lt. Sean Furlong during a homicide trial to which they were both assigned, despite testimony that the two had kissed in 2007, he said.

“If the kiss was an unwanted advance, which it was … it’s not romantic," Kolenda said. "...It startled the judge; it flabbergasted the judge."

When the pair went out for drinks, they were accompanied by other friends and court staff, he said. And even during the “infamous skinny-dipping incident” at a dinner party at Brennan’s home, others were present and Furlong didn’t participate, Kolenda said.

“This group of people were friends,” he said, arguing that the judge was under no obligation to disclose that friendship.

Helland argued more was needed than simply Brennan’s removal from the bench, noting the possibility that she could run for election again next year.

"Were the court only to remove Judge Brennan from her court, she could run again in 2020, which means any removal would only last until then were she to win," he said. "...That's just too short a time."

Brennan “couldn’t resist” speaking to Furlong during the 2007 homicide trial and spoke to him more than she did her own sister, Helland said.

The judge's actions, he said, appear to stem from three different attitudes: “She enjoyed the power of her position” without “constraint"; she “couldn't separate her judicial self from her personal self": and she wouldn’t acknowledge wrongdoing “except in the most inconsequential of ways."

Contrary to Kolenda’s argument, Helland said there was a large body of proof supporting all of the JTC’s various allegations and their arguments for her removal.  

"We don’t have to choose which (finding) is the most serious because anyone of them by itself would suffice to have her removed from the bench,” he said.

Brennan also is facing felony charges from the Department of Attorney General for misconduct in office, including perjury and destroying evidence. A preliminary exam on the offenses, which carry up to 15 years in prison, is scheduled for Aug. 25. Brennan remains free on $30,000 bond.

eleblanc@detroitnews.com

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