Following a hearing on a complaint brought by the Judicial Inquiry Board, the Illinois Courts Commission suspended Judge Scott Drazewski for 4 months without pay and censured Judge Rebecca Foley for conduct related to their extramarital affair.  In re Drazewski, Foley, Order (Illinois Courts Commission March 11, 2016).  The Commission found that Judge Drazewski engaged in misconduct by presiding over cases, including a trial, in which Judge Foley’s husband represented a party without disclosing the relationship and by a pattern of deceptive conduct to hide the affair from the chief judge.  The Commission found that Judge Foley committed misconduct by failing to take or initiate appropriate disciplinary measures against Judge Drazewski even though she knew that he was presiding in cases involving her husband.

On December 5, 2010, the judges began an extramarital affair while attending a conference in Washington D.C.  Between December 5 and February 17, 2011, they had a romantic relationship, and, during part of that time, their relationship was sexually intimate.

On December 13, Judge Drazewski began presiding over a jury trial in a negligence action in which Judge Foley’s husband represented the defendant.  As of February 16, 2011, Judge Drazewski was presiding over approximately 8 cases in which Mr. Foley was the attorney for one of the parties.

On February 17 at the courthouse, Judge Foley told Judge Drazewski that her husband had confronted her about their relationship that morning.  2 days later, Judge Foley informed Judge Drazewski that Mr. Foley was requesting that Judge Drazewski recuse himself from Mr. Foley’s cases and “that if [he] didn’t, [Mr. Foley] was going to notify [Mrs. Drazewski].”  On February 22, Judge Drazewski began recusing himself from Mr. Foley’s cases.  He reported the recusals to the chief judge, citing several reasons but failing to mention that Mr. Foley had requested he recuse himself after learning of the affair.

The Commission found that Judge Drazewski’s subjective opinion that “he could be fair and impartial” was “of no moment.”

Whether a judge’s impartiality might reasonably be questioned is judged by an objective standard, not by the judge’s subjective opinion. . . .  Any objective onlooker with knowledge of the facts could reasonably question whether respondent Drazewski would have been inclined to rule unfavorably toward Mr. Foley due to his ongoing relationship with Mr. Foley’s wife.  Likewise, an objective onlooker could also suspect that respondent Drazewski would be motivated to rule favorably toward Mr. Foley out of guilt, at respondent Foley’s request, or in an attempt to preemptively thwart a later claim of judicial bias.  These scenarios, which need not be established here, nonetheless support the fact that respondent Drazewski’s impartiality could reasonably be questioned.

The Commission found that Judge Drazewski’s misconduct “was egregious.  The ethical dilemma he faced was one of his own making.  The decision to disclose or recuse was an easy and obvious choice to make, but was eschewed for personal and selfish reasons, and his continued deception cannot be ignored.”  Emphasizing that the sanction was “not because of the extramarital affair itself,” the Commission concluded that the affair was not limited to the respondents’ private lives because Judge Drazewski allowed it “to extend into his official capacity when he chose not to recuse himself from Mr. Foley’s cases and later attempted to mislead the chief judge.”

Having found that Judge Drazewski’s “misconduct was a clear violation of the Code,” the Commission determined that Judge Foley, “as a judge and an active participant in the undisclosed affair,” had knowledge that a violation had occurred and an obligation to “take or initiate appropriate disciplinary measures.”  But, the Commission noted, she did not disclose the affair to Mr. Foley, insist that she and Judge Drazewski reveal their relationship, urge Judge Drazewski “to recuse himself, seek help or advise the Chief Judge of the facts,” or take any other action.

The court administrator and several other judges testified that they were aware of the affair based on their observations that, for example, the respondent-judges were spending a lot more time together in each other’s chambers, frequently behind closed doors; that, during meetings, they were texting back and forth (they would “press[] buttons, look up at the other one, the other one would look at their phone, read it, press buttons and so on”); and their flirtatious conduct at a Law Day event sponsored by the bar association.  Attorneys also began talking about a relationship between the respondent-judges to the other judges.  The Commission concluded that, because “[j]udges, attorneys and court personnel were concerned about the respondents’ relationship, and it was a distraction to the administration of justice in McLean and Livingston County . . .  the respondents’ relationship . . . has had a negative effect upon the integrity of, and respect for, the judiciary.”  The Commission also stated that many judges in the circuit “struggled with their own ethical obligations as a direct result” of respondents’ misconduct, noting particularly that the chief judge was investigated by the Board “not because of anything she did—but because she was continually misled by respondent Drazewski” and because of Judge Foley’s lack of candor with Judge Robb.