Walker v. Barron , 2021 IL App (1st) 210080 ( 2021 )

2021 IL App (1st) 210080FIRST DIVISION
April 22, 2021
No. 1-21-0080
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
DAVID WALKER, SR.; ROBERT J. DEPOLO; )
and MARINA I. PANGOPOULOS, )
)
Petitioners-Appellants, ) Appeal from the
) Circuit Court of
v. ) Cook County
)
WILLIAM BARRON, RONDAL JONES, and ) No. 20 COEL 30
THOMAS JACONETTY, in Their Official Capacities as )
Members of the Markham Municipal Officers Electoral ) The Honorable
Board; ROGER AGPAWA; and KAREN ) James R. Carroll,
YARBROUGH, in her capacity as the Cook County ) Judge Presiding.
Clerk, )
)
Respondents-Appellees. )
JUSTICE PIERCE delivered the judgment of the court, with opinion.
Justice Coghlan concurred in the judgment and opinion.
Presiding Justice Walker dissented, with opinion.
OPINION
¶1 Petitioners, David Walker, Sr., Robert J. Depolo, and Marina I. Pangopoulos, appeal from
the circuit court of Cook County’s order affirming a decision of the Markham Municipal Officers
Electoral Board (Board), finding that respondent, Roger Agpawa, is a duly qualified candidate for
the office of Mayor of the City of Markham. For the reasons that follow, we reverse the circuit
No. 1-21-0080
court’s judgment that affirmed the Board’s decision, and we reverse the Board’s decision. We find
that Agpawa is not eligible to seek or hold municipal office in Illinois.
¶2 I. BACKGROUND
¶3 In 2018, Agpawa was elected Mayor of the City of Markham, despite being ineligible to
hold that office due to a 1999 federal felony conviction for mail fraud, an infamous crime. He was
barred from taking the oath of office by a quo warranto judgment entered by the circuit court. On
appeal, we affirmed (People ex rel Foxx v. Agpawa, 2018 IL (App) 1st 171976, ¶ 1), and filed our
mandate in the circuit court on June 14, 2018. Subsequently, then-Governor Bruce Rauner issued
a document purporting to restore Agpawa’s “rights.” See Infra ¶ 46. (The document has no title.
Agpawa refers to the document as a “certificate of restoration of rights.” For convenience, we will
refer to the document as “the Governor’s certificate.”) On September 25, 2018, Agpawa was sworn
in as Mayor of the City of Markham. 1 That same day, he filed an emergency motion to vacate the
circuit court’s judgment barring him from taking the oath of office. 2 On September 28, 2018, the
circuit court vacated its quo warranto judgment. Infra ¶ 47. In its written order, the circuit court
found “that, by virtue of a Restoration of Rights issued by the Governor of the State of
Illinois, *** Agpawa’s 1999 federal conviction for mail fraud no longer renders him ineligible to
hold municipal office in Illinois.” No appeal was taken from the circuit court’s order vacating the
earlier quo warranto judgment.
¶4 In 2020, Agpawa filed nomination papers seeking reelection as mayor. Petitioners objected
to Agpawa’s nomination papers on the grounds that Agpawa was not a duly qualified candidate
pursuant to section 29-15 of the Illinois Election Code (10 ILCS 5/29-15 (West 2018)) and section
1
No explanation is offered by the parties as to how Agpawa was lawfully sworn in while a valid
and enforceable judgment was in effect barring him from taking the oath of office, and before the circuit
court had any opportunity to reexamine its judgment in light of the Governor’s certificate.
2
We discuss some our serious issues with this “motion” below. See infra ¶ 13.
2
No. 1-21-0080
3.1-10-5(b) of the Illinois Municipal Code (65 ILCS 5/3.1-10-5(b) (West 2018)) due to his federal
felony conviction for an infamous crime. They asserted that Agpawa had not received a pardon
from the President of the United States and that the Governor of Illinois’s pardon power does not
extend to pardoning federal convictions. The petition further requested that Agpawa “and aligned
officers” recuse themselves from any Board proceedings on their petition, and requested that the
Board’s legal counsel, the Odelson & Sterk law firm, “be recused from advising the Electoral
Board, due to their conflicts of interest,” namely that Odelson & Sterk attorneys represented
Agpawa in the circuit and appellate court proceedings in Agpawa, 2018 IL App (1st) 171976, and
in his efforts to obtain the Governor’s certificate.
¶5 Thomas Jaconetty was appointed as a public member of the Board because the Markham
City Clerk, Jennifer Coles, had also filed nomination papers for the office of Mayor of the City of
Markham. Petitioners filed a motion to recuse respondents, William Barron and Rondal Jones, and
the Board’s attorneys, the Odelson & Sterk law firm. The motion asserted that Barron was
Agpawa’s “walk-the-streets supporter,” and that Barron, Jones, and Odelson & Sterk were all
financial donors to Agpawa’s political action committee. Petitioners’ motion also sought recusal
of Odelson & Sterk due to its representation of Agpawa “privately and in relation to confidential
communications with former Gov[ernor] Rauner to broker a deal” for Agpawa. The motion further
asserted that Odelson & Sterk had a financial interest in Agpawa remaining on the ballot because
the firm “is generating revenue from the municipal representation, which would be terminated if
Agpawa was removed. [Odelson &] Sterk is financially motivated to maintain that revenue stream,
and could be biased in its directions provided to the electoral board.” Ultimately, the parties filed
cross-motions for summary judgment on the petitioners’ objections.
3
No. 1-21-0080
¶6 On December 14, 2020, the Board denied petitioners’ recusal motion. After hearing
argument, the Board voted to grant Agpawa’s motion for summary judgment and denied the
petitioners’ objections. In its written decision, the Board found that petitioners’ motion to recuse
Barron, Jones, and Odelson & Sterk was without merit because neither Barron nor Jones were
running for the same office as Agpawa, neither had any pecuniary interest in the outcome, they
were not required to serve as witnesses at the hearing, and they were not in a position of having to
judge their own credibility. The Board also noted that petitioners failed to timely raise their recusal
motion because the motion was made before the Board and not before the circuit court under Cook
County General Order 21, and any allegations of political bias were insufficient to force recusal.
As for Odelson & Sterk, the Board observed that the Board was entitled to its choice of counsel,
none of the firm’s attorneys were on the Board or had a vote on the objection, there was no statutory
basis for removal of the Board’s counsel, none of the Board’s counsel’s recommendations were
binding on the Board, and the firm’s representation of Agpawa ended when he was elected mayor.
The Board accused petitioners’ counsel of attempting to “manufacture an artificial conflict” by
attempting to call two Odelson & Sterk attorneys as witnesses. The Board found that “[i]t is clear
that the purpose of the Motion [to Recuse] and, in particular, the request to disqualify the law firm,
is frivolous and is purely for the purposes of harassment and potentially engineering a tactical
advantage.”
¶7 The Board then turned its focus to petitioners’ objection to Agpawa’s qualifications. The
Board found that it did not have the authority to rule on the question of whether the Governor
exceeded his authority by issuing the Governor’s certificate. The Board observed that the “Circuit
Court of Cook County (with the mandate returned to enforce or otherwise address its original order
and judgment) vacated its original order” barring Agpawa from taking the oath of office and found
4
No. 1-21-0080
that he was no longer ineligible to hold office, and that order had not been challenged since its
entry. The Board found, “The action of the Governor of the State of Illinois, and the order of the
Circuit Court of Cook County, end this Electoral Board’s inquiry.”
¶8 Petitioners sought administrative review in the circuit court. After conducting a de novo
review, the circuit court affirmed the Board’s decision. Petitioners filed a timely notice of appeal
in this court.
¶9 II. ANALYSIS
¶ 10 On appeal, petitioners contend that Agpawa is not a duly qualified candidate for the office
of Mayor of the City of Markham. They also assert that the Board violated their due process rights
by denying the motion to recuse Barron, Jones, and Odelson & Sterk, and that the Board should
not have been permitted to participate in this administrative review action in the circuit court
because the Board was not named as a respondent and, relatedly, its participation in the circuit
court proceedings violated the Open Meetings Act.
¶ 11 At the outset, we recognize that petitioners’ challenge below was to whether Agpawa’s
name could appear on the ballot for the 2021 primary and consolidated election, and that the
election has already occurred. Petitioners’ challenge is therefore moot, as we can longer affect
whether Agpawa’s name will appear on the ballot. We find, however, that we may still consider
petitioners’ appeal under the public interest exception to the mootness doctrine, given the
significant interests involved in allowing only qualified candidates to hold municipal office.
¶ 12 The criteria for applying the public interest exception are “(1) the question presented is of
a public nature; (2) an authoritative determination of the question is desirable for the future
guidance of public officers; and (3) the question is likely to recur.” In re Shelby R., 2013 IL
114994, ¶ 16. Here, the question of whether the Governor may restore the eligibility to seek and
5
No. 1-21-0080
hold municipal office that was lost by virtue of a federal felony conviction for an infamous crime
is undoubtedly a question of a public nature. The question has not been addressed under the current
constitution and legislative scheme, and thus an authoritative determination is desirable. Finally,
the question is likely to recur. While we are not aware of any other candidates seeking municipal
office with convictions for infamous federal felony crimes, the Cook County State’s Attorney
previously sought to bar Agpawa from taking the oath of office due to his ineligibility for
municipal office, and, if elected, he would remain subject to quo warranto challenges for the
duration of his term. We find that the public interest exception to the mootness doctrine applies
and we will therefore decide the merits of petitioners’ appeal.
¶ 13 As a preliminary matter, we are compelled to address two issues reflected in the record
related to our decision in Agpawa. First, we address Agpawa’s “motion” to vacate the circuit
court’s original quo warranto judgment. Neither a copy of Agpawa’s “motion” to vacate nor any
transcript of any proceedings in the circuit court on the “motion” is contained in the record before
us. This presents us with a jurisdictional black hole. The circuit court entered its original
quo warranto judgment declaring Agpawa ineligible for municipal office on August 9, 2017, and
lost jurisdiction once Agpawa filed a timely notice of appeal to this court. Our mandate in Agpawa,
2018 IL App (1st) 171976 affirming the circuit court’s judgment was filed in the circuit court on
June 14, 2018. We did not remand any aspect of the case to the circuit court, therefore the circuit
court only had jurisdiction to enforce our judgment. Ill. S. Ct. R. 369(b) (eff. July 1, 1982). The
circuit court’s vacatur of its original September 28, 2018, quo warranto judgment is valid and
enforceable only if: (1) Agpawa’s “motion” to vacate was a petition pursuant to section 2-1401 of
the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2018)) collaterally attacking the circuit
court’s judgment (see Price v. Phillip Morris, Inc., 2015 IL 117687, ¶ 26 (explaining why a section
6
No. 1-21-0080
2-1401 petition may be filed in the circuit court even after the circuit court’s judgment has been
affirmed on appeal)); or (2) the circuit court was revested with jurisdiction. For revestment to
apply, “both parties must: (1) actively participate in the proceedings; (2) fail to object to the
untimeliness of the late filing; and (3) assert positions that make the proceedings inconsistent with
the merits of the prior judgment and support the setting aside of at least part of that judgment. If
any one of those requirements remains unmet, the doctrine does not revest the court with
jurisdiction.” (Emphases in original.) People v. Bailey, 2014 IL 115459, ¶ 25. The only evidence
in the record before us is the circuit court’s September 28, 2018, order, which states that the State
“does not dispute” that the governor issued the certificate but says nothing about what the State
said regarding the effect of the certificate. Infra ¶ 47. On this record, we cannot determine whether
the circuit court had subject-matter jurisdiction when it entered its order vacating its quo warranto
judgment, or whether the circuit court’s vacatur order is void for lack of subject-matter jurisdiction.
From what we know, the judgment in Agpawa remains is full force and effect.
¶ 14 The second issue we address is a statement in Agpawa’s brief related to the circuit court’s
September 28, 2018, order vacating its original quo warranto judgment. In a footnote, Agpawa’s
brief asserts “The entry of the September 28, 2018 Order vacated the August 9, 2017 Order and
rendered the decision in Agpawa, 2018 IL App (1st) 171976 void.” (Emphasis added.) This
statement was also repeatedly advanced before the Electoral Board by Agpawa in support of his
eligibility to seek and hold the office of mayor. This is a blatantly incorrect statement and is
contrary to our supreme court’s precedent that a lower court has no authority to vacate the
judgment of a court of review. Price, 2015 IL 117687, ¶¶ 30-39. Assuming Agpawa’s “motion”
was a proper section 2-1401 petition, the circuit court was asked to revisit its own judgment based
on facts “that were not of record in the original action and that were not considered by the appellate
7
No. 1-21-0080
court.” Id. ¶ 26. In other words, Agpawa sought postjudgment relief in the circuit court from the
circuit court’s quo warranto judgment, relief that the circuit court could grant only if it had proper
jurisdiction. The circuit court’s order vacating its quo warranto judgment did not purport to vacate
our judgment in Agpawa, and counsel’s suggestion that our judgment in Agpawa is void is patently
false.
¶ 15 Turning to the merits of this case, we first address petitioners’ argument that Agpawa is
not eligible to seek and hold municipal office. Petitioners argue that the Governor has no authority
to pardon a federal offense. They contend that section 3.1-10-5(b) of the Municipal Code declares
that a person with a conviction for an infamous crime is ineligible to hold a municipal office, and
because Agpawa has a federal felony conviction for an infamous crime, his eligibility to seek and
hold municipal could only be restored by a presidential pardon, as the Governor of Illinois’s pardon
power cannot reach federal crimes. The parties agree that a pardon from the President of the United
States for a federal crime would restore Agpawa’s right to seek and hold municipal office in
Illinois. See Nixon v. United States, 506 U.S. 224, 232 (1993) (“the granting of a pardon is in no
sense an overturning of a judgment of conviction by some other tribunal; it is ‘[a]n executive action
that mitigates or sets aside punishment for a crime.’ ” (Emphasis in original.) (quoting Black’s
Law Dictionary 1113 (6th ed. 1990))). Agpawa argues, however, that the Governor has the
authority to restore state rights that are lost as a collateral consequence of a federal conviction.
Agpawa relies heavily on this court’s decision in People ex rel. Symonds v. Gualano, 124 Ill. App.
2d 208 (1970), which addressed a similar issue under the Illinois Constitution of 1870 and state
statutes in effect at that time. We agree with petitioners and disagree with Agpawa.
¶ 16 Our research does not disclose any decision from our supreme court on the question of
whether the Governor has the authority to restore eligibility to seek and hold municipal office that
8
No. 1-21-0080
was lost because of a federal felony conviction for an infamous crime. Our review of this issue
requires that we interpret the Illinois Constitution of 1970 and existing statutes, which are
questions of law that we review de novo. Gregg v. Rauner, 2018 IL 122802, ¶ 23. We must
ascertain and give effect to the language of the constitution and statutory enactments, given their
plain and ordinary meanings, and consider the constitutional and statutory provisions in their
entirety. Hayashi v. Illinois Department of Financial & Professional Regulation, 2014 IL 116023,
¶ 16. We interpret a clemency order so as to ascertain and give effect to the intent of the Governor.
People v. Morris, 219 Ill. 2d 373, 384 (2006).
¶ 17 Agpawa argues that the Governor possesses the authority to restore a person’s eligibility
to seek and hold municipal office through the Governor’s pardon power. Article V, section 12 of
the Illinois Constitution of 1970 provides “The Governor may grant reprieves, commutations, and
pardons, for all offenses on such terms as he thinks proper. The manner of applying therefore may
be regulated by law.” Ill. Const. 1970, art. V, § 12. The Governor’s pardon power is “extremely
broad” and limited only by the Governor’s conscience. People ex rel Madigan v. Snyder, 208 Ill.
2d 457, 473 (2004). Despite the breadth of the pardon power, our supreme court has not, to our
knowledge, determined that the Governor may use the pardon power to affect a federal offense,
including the collateral consequences that result from a federal conviction. And while the
constitution clearly states that the legislature may regulate the process for applying for a pardon,
this provision “does not in any way restrict the Governor’s power to act.” Id. at 467.
¶ 18 In People ex rel. Madigan, our supreme court discussed the constitutional authority given
to the Governor to “grant reprieves, commutations, and pardons” in the context of reviewing the
grant of clemency to numerous persons previously sentenced to death. 208 Ill. 2d at 473-74.
9
No. 1-21-0080
¶ 19 “A pardon is ‘[a]n executive action that mitigates or sets aside punishment for a crime.’ ”
Id. at 473-47 (quoting Black’s Law Dictionary 1113 (6th ed. 1990)).
“ ‘[A] pardon may be full or partial, absolute or conditional. A pardon is
full when it freely and unconditionally absolves the person from all the legal
consequences of a crime and of the person’s conviction, direct and collateral,
including the punishment, whether of imprisonment, pecuniary penalty, or
whatever else the law has provided; it is partial where it remits only a portion of the
punishment or absolves from only a portion of the legal consequences of the crime.
A pardon is absolute where it frees the criminal without any condition whatsoever;
and it is conditional where it does not become operative until the grantee has
performed some specified act, or where it becomes void when some specified event
transpires.’ ” Id. at 474 (quoting 67A C.J.S., Pardon & Parole § 2, at 6 (2002)).
¶ 20 “A commutation is the change of punishment to which a person has been condemned to a
less severe one. It removes a judicially imposed sentence and replaces it with a lesser, executively
imposed sentence. Finally, a reprieve is ‘the postponement of the execution of a sentence.’ ”
(Internal citations omitted.) Id.
¶ 21 There is, however, no constitutional provision that expressly grants the Governor the
authority to issue a Governor’s certificate to restore rights. To our knowledge, the supreme court
has never had occasion to define the phrase “restoration of rights” in the context of a gubernatorial
action or acknowledge the phrase as part of the Governor’s pardon power.
¶ 22 Here, Agpawa lobbied the Governor in an attempt to restore his eligibility to seek and hold
the municipal office of mayor, and he submitted numerous proposals suggesting language that
specified Agpawa was restored to his right to hold the office of Mayor of the City of Markham.
10
No. 1-21-0080
Notably, the Governor did not adopt the language suggested by Agpawa, and the Governor’s
certificate does not specify which rights were being restored. See infra ¶ 46. The Governor’s
certificate acknowledged Agpawa’s federal mail fraud conviction and sentence and recited that
“by the authority vested in me by the Constitution of the State” Agpawa was a “fit and proper
subject for Restoration of Rights of Citizenship” and “of the said crime of which convicted” is
“discharged of and from all further hinderance and restored to all rights of citizenship that may
have been forfeited under Illinois law as a result of the conviction. All rights under federal law
which were forfeited as a result of this conviction are unaffected by this action.” Infra ¶ 46. The
Governor’s certificate appears to be modeled on the certificates that were upheld in Gualano and
a modified clemency order. See Morris, 219 Ill. 2d at 384.
¶ 23 Agpawa’s relies primarily on Gualano as authority in support of his eligibility to hold
municipal office. The facts of Gualano are similar to this case. Gualano was decided under the
Illinois Constitution of 1870 and a statutory provision that has since been repealed. Gualano had
twice pleaded guilty to federal mail fraud charges. 124 Ill. App. 2d at 210. In 1961, he was elected
president of the Village of Justice and fended off a quo warranto complaint in the circuit court. Id.
We reversed the circuit court’s denial of a quo warranto judgment because mail fraud was an
infamous crime and a state statute barred Gualano from taking the oath of office absent a
restoration of rights under a pardon. People ex rel. Symonds v. Gualano, 97 Ill. App. 2d 248 (1968).
After our judgment, Gualano petitioned the Governor for a restoration of rights pursuant to section
124-2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., 1967, ch. 38, § 124-2 (repealed
by Pub. Act 78-255, § 61 (eff. Oct. 1, 1973))), which the Governor granted, and Gualano was
issued certificates restoring him to “all his rights of citizenship.” Gualano,124 Ill. App. 2d at 211.
11
No. 1-21-0080
¶ 24 After the restoration of rights issued, the circuit court removed Gualano from office and
Gualano appealed. Id. The Gualano court reversed, finding that the Governor had the authority to
restore Gualano’s rights to hold municipal office despite the federal conviction. The parties’
arguments focused on two provisions of the Illinois Constitution of 1870: section 4, Article IV,
which prohibited a person with a conviction for an infamous crime from holding public office, and
section 13, Article V, which embodied the Governor’s pardon power. Id. at 213-14. Also at issue
was section 124-2 of the Code of Criminal Procedure of 1963 which provided that persons
convicted of infamous crimes were barred from holding any office “unless he or she is again
restored to such right by the terms of a pardon for the offense or otherwise according to law.” Ill.
Rev. Stat., 1967, ch. 38, § 124-2(a) (repealed by Pub. Act 78-255, § 61 (eff. Oct. 1, 1973)). Section
124-2 also provided that at “any time after a judgment of conviction is rendered a person convicted
of an infamous crime may petition the Governor for a restoration of rights. Id. § 124-2(b);
Gualano, 124 Ill. App. 2d at 213. The Gualano court also looked to other jurisdictions and
concluded that Gualano’s disqualification to hold municipal office “arises solely from section 4,
Article IV of the Illinois [C]onstitution [of 1870],” and that the restoration of rights “does not
affect Gualano’s [f]ederal conviction, but only the consequences which flow, due to the conviction,
from the Illinois Constitution.” Id. at 214-15. The Gualano court examined the history of the
Governor’s constitutional pardon power and found that the legislature “did not intend to
circumscribe its effectiveness by Article IV, section 4 [of the Illinois Constitution of 1870].” Id. at
220. The Gualano court concluded that the Governor possessed the constitutional authority to
remove a federally convicted felon’s ineligibility to hold public office. Id. at 222.
¶ 25 The Gualano court accepted the proposition that, while the Governor has no authority to
pardon a federal offense, as “a pardon for those crimes could only come from the President of
12
No. 1-21-0080
United States” (id. at 214), the Governor’s pardon power includes the authority to remove the
collateral consequences of a federal offense that arise under state law. To support its reasoning,
the Gualano court relied on Arnett v. Stumbo, 153 S.W.2d 889 (1941). There, Stumbo was
convicted of a federal felony and thus was no longer eligible to hold public office under the
Kentucky Constitution. Id. at 890. The disqualifying constitutional provision provided, however,
that Stumbo could be restored to such right by executive pardon. Id. There was no dispute that the
Governor could restore eligibility to hold public office; the issue was whether the Governor’s
authority extended to those convicted of federal felonies. The Arnett court answered in the
affirmative, in part because the disqualification arose as a state-imposed collateral consequence
flowing from the federal conviction, and the Governor was authorized under the Kentucky
Constitution to restore eligibility to hold public office. Id. at 891. The Gualano court, relying on
Arnett, found that—despite no analogous Illinois constitutional provision specifically permitting
the Governor to restore rights—the Governor of Illinois could, under his pardon power, do
indirectly what he could not do directly and order a restoration of state rights lost as a result of a
federal conviction, despite lacking the constitutional authority to pardon a federal offense.
¶ 26 We do not believe that the Gualano court’s reasoning is consistent with the current
constitutional and legislative landscape in Illinois. The Illinois Constitution of 1970 specifically
grants the Governor the authority to issue “reprieves, commutations, and pardons,” but nothing in
the text or structure of the Illinois Constitution suggests that the Governor has the authority to
pardon offenses against the United States or against other states. Nor does the Illinois Constitution
contemplate a separate grant of gubernatorial power for the restoration of rights lost due to a
qualifying conviction from a sovereign jurisdiction.
13
No. 1-21-0080
¶ 27 The Illinois Constitution of 1970 grants separate powers to the executive, legislative, and
judicial branches of government. The legislative power is vested in the General Assembly (Ill.
Const. 1970, art. IV, § 1), which is empowered to enact laws governing the creation of local units
of government (Ill. Const. 1970, art. VII, § 12). “When a municipal office is created by statute, the
legislature has the discretionary authority to specify the qualifications required to hold that office
so long as the qualifications are reasonably related to the specialized demands of the office.”
People v. Hofer, 363 Ill. App. 3d 719, 723 (2006) (citing East St. Louis Federation of Teachers,
Local 1220 v. East St. Louis School District No. 189 Financial Oversight Panel, 178 Ill. 2d 399,
418 (1997); Hoskins v. Walker, 57 Ill. 2d 503, 509 (1974)).
¶ 28 The legislature has enacted two separate provisions regarding the disqualification of
persons convicted of infamous crimes from seeking or holding public office in Illinois. Section
3.1-10-5(b) of the Municipal Code provides: “A person is not eligible to take the oath of office for
a municipal office if that person *** has been convicted in any court located in the United States
of any infamous crime, bribery, perjury, or other felony.” 65 ILCS 5/3.1-10-5(b) (West 2018). The
prohibition in section 3.1-10-5(b) arises solely out of a legislative enactment, as municipal offices
are created by the legislature. People ex rel Ryan v. Coles, 64 Ill. App. 3d 807, 811 (1978); Hofer,
363 Ill. App. 3d at 723; Alvarez v. Williams, 2014 IL App (1st) 133443, ¶ 16. There is no provision
in section 3.1-10-5(b) that restores eligibility for municipal office after conviction for an infamous
crime. As we have previously found, “[t]he legislature addressed the limitations on eligibility for
municipal office when amending section 3.1-10-5 of the Municipal Code in 1992. While the
legislature had the opportunity to add a restoring clause, the legislature failed to do so.” Pappas v.
Calumet City Municipal Officers’ Electoral Board, 288 Ill. App. 3d 787, 790 (1997). In Agpawa,
we found that Agpawa’s federal felony conviction for an infamous crime rendered him ineligible
14
No. 1-21-0080
to hold municipal office under section 3.1-10-5(b) of the Municipal Code, and that his eligibility
to seek and hold municipal office was not restored under our legislative scheme. Agpawa, 2018 IL
App (1st) 171976, ¶¶ 19-29 (explaining that section 5-5-5(a)-(b) of the Unified Code of
Corrections (730 ILCS 5/5-5-5(a)-(b) (West 2018)) does not restore the right of people convicted
of infamous crimes to hold municipal office for the purposes of section 29-15 of the Election
Code). We noted that the legislature amended section 3.1-10-5(b) eight times since our decision
in Pappas and never added a restoration clause. Id. ¶ 28. Significantly, since our judgment in
Agpawa, there has been no amendment to section 3.1-10-5(b). While the legislature had numerous
opportunities to include a restorative provision in section 3.1-10-5(b) of the Municipal Code, it has
not done so. “[W]here the legislature chooses not to amend terms of a statute after judicial
construction, it will be presumed that it has acquiesced in the court’s statement of legislative
intent.” Board of Education of the City of Chicago v. Moore, 2021 IL 125785, ¶ 30. In other words,
a plain reading of section 3.1-10-5(b) provides that a person convicted of an infamous crime is not
eligible for election to a municipal office.
¶ 29 The legislature knows how to restore eligibility to seek and hold elective office. Section
29-15 of the Election Code provides
“Any person convicted of an infamous crime as such term is defined in
Section 124-1 of the Code of Criminal Procedure of 1963, as amended,[ ] shall
thereafter be prohibited from holding any office of honor, trust, or profit, unless
such person is again restored to such rights by the terms of a pardon for the offense
or otherwise according to law.” 10 ILCS 5/29-15 (West 2018). 3
3
Although section 124-1 of the Code of Criminal Procedure of 1963 was repealed, courts
interpreting section 29-15 of the Election Code still rely on its definition of infamous crime. Agpawa, 2018
IL App (1st) 191976, ¶ 17 n.1.
15
No. 1-21-0080
As we found in Agpawa, section 5-5-5(a)-(b) of the Unified Code of Corrections does not restore
the right of people convicted of infamous crimes to seek or hold municipal office for the purposes
of section 29-15 of the Election Code (Agpawa, 2018 IL App (1st) 171976, ¶¶ 19-29), and we are
not aware of any other state statute that might automatically restore the eligibility of a person
convicted of an infamous crime to seek or hold municipal office by operation of law or that might
provide a legislative avenue toward restoration of eligibility to seek and hold municipal office.
¶ 30 Our supreme court has never opined on whether section 3.1-10-5(b) of the Municipal Code
and section 29-15 of the Election Code should be read in pari materia such that a person convicted
of an infamous crime may be restored to their right to hold municipal office by the terms of a
pardon for the offense. 4 However, assuming for the purposes of discussion that section 29-15 of
the Election Code and section 3.1-10-5(b) of the Municipal Code should be read in pari materia,
a pardon for a disqualifying offense would restore eligibility to seek and hold a municipal office.
10 ILCS 5/29-15 (West 2018). A pardon is the only mechanism for restoring the right to seek and
hold municipal office because our legislature has not enacted any statutory mechanism that would
give effect to the language “otherwise according to law” in section 29-15 of the Election Code in
the context of eligibility for municipal office. As the Gualano court observed, Gualano petitioned
the Governor for a restoration of rights under section 124-2(b) of the Code of Criminal Procedure
of 1963. Id. at 213 (citing Ill. Rev. Stat., 1967, ch. 38, § 124-2(b)). That statutory provision no
longer exists, and our legislature has not enacted an analogous statute to restore eligibility for
4
Our supreme court has indicated that “[the] bar [in section 3.1-10-5(b)] is not necessarily
permanent. Under the Election Code *** convicted felons may recover their right to run for office through
‘the terms of a pardon for the offense or otherwise according to law.’ ” Bryant v. Board of Election
Commissioners of City of Chicago, 224 Ill. 2d 473, 474-75 (2007) (quoting 10 ILCS 5/29-15 (West 2004));
see also Delgado v. Board of Election Commissioners, 224 Ill.2d 481, 482-83 (2007) (same). But both
Bryant and Delgado were supervisory orders and are therefore of no precedential value. Cinkus v. Village
of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 221 (2008).
16
No. 1-21-0080
municipal office that was lost due to a federal conviction for an infamous crime. This is significant
because the legislature reenacted section 124-2(a) of the Code of Criminal Procedure of 1963 in
section 29-15 of the Election Code. See Coles v. Ryan, 91 Ill. App. 3d 382, 384 n.2 (1980). The
phrase “otherwise according to law” in section 29-15 of the Election Code does not directly or
indirectly refer to any existing statutory mechanism providing for the restoration of eligibility to
seek or hold municipal office.
¶ 31 The legislature clearly knows how to provide for the restoration of lost rights “otherwise
according to law”: people convicted of other felonies are eligible to hold constitutionally created
offices once they complete their sentences (730 ILCS 5/5-5-5(a) (West 2018)), and a person
convicted of mutilating election materials or of perjury is barred from holding public
employment—which includes any elected office in Illinois—for five years after the completion of
their sentence (10 ILCS 5/29-6, 10 (West 2018)), but are then eligible for public employment once
the specified term ends. Even more, the legislature knows how to provide for the restoration of
lost rights for specific infamous crimes: perjury was specifically identified as an infamous crime
under section 124-1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, ¶ 124-
1 (repealed by Pub. Act 84-1047, § 2 (eff. July 1, 1986)), and the legislature specifically provided
that a perjury conviction only disqualifies a person from holding public office for five years after
completing their sentence (10 ILCS 5/29-10 (West 2018)).
¶ 32 Taken together, it is clear that the legislature—the branch of government vested with
constitutional authority to create municipalities and establish qualifications for holding public
office—intended to generally treat convictions for infamous crimes differently than other felony
convictions when it comes to restoring the eligibility to seek or hold public office. The legislature
could enact a statutory provision that restores eligibility to seek and hold public office to a person
17
No. 1-21-0080
convicted of an infamous crime generally, or of mail fraud specifically, “according to law” through
a legislative enactment, but it has not, and it did not retain the previous statutory mechanism
permitting petitions for certificates of restoration of rights in section 124-2(b) of the Code of
Criminal Procedure of 1963. Therefore, we find that the only mechanism available to a person
convicted of an infamous crime to regain their eligibility to seek and hold public office is through
the terms of a pardon for the offense that results in the disqualification.
¶ 33 Despite the complete absence of any constitutional or statutory authority to restore any
right lost as a direct or collateral consequence resulting from an infamous federal offense, it
appears the former Governor took the concept of restoring Agpawa’s eligibility for municipal
office from the Gualano decision. The Gualano court found the Governor had the authority to
restore rights lost due to a conviction for a federal infamous crime because an existing statute
permitted petitions for a restoration of rights. That statute evinced a legislative intent to recognize
a “restoration of rights” consistent with the legislature’s authority to establish the eligibility
requirements for municipal office. Our current legislative scheme, however, only recognizes a
pardon for the disqualifying offense as the sole mechanism to restore eligibility to seek and hold
municipal office. 10 ILCS 5/29-15 (West 2018); 65 ILCS 5/3.1-10-5(b) (West 2018).
¶ 34 We presume that our legislature and the drafters of the Illinois Constitution of 1970 were
aware that the Governor—the head of the executive branch of a sovereign state—has no authority
to issue pardons for offenses against separate sovereigns. The Governor has the authority to issue
reprieves, commutations, and pardons for offenses against the State. If Agpawa had an Illinois
felony conviction for an infamous crime, the Governor could pardon that offense and Agpawa’s
eligibility to seek and hold municipal office could be restored by “the terms of a pardon for the
offense,” since it is within the Governor’s power to “absolve[ ] the person from all the legal
18
No. 1-21-0080
consequences of a crime and of the person’s conviction, direct and collateral, including the
punishment, whether of imprisonment, pecuniary penalty, or whatever else the law has
provided ***.” People ex rel. Madigan, 208 Ill. 2d at 474. But here, the parties do not contend,
and we are aware of no authority to the effect, that then-Governor Rauner had the authority to
pardon Agpawa for his federal conviction, and there is nothing that indicates that was the then-
Governor’s intention. The legislature has the constitutional authority to establish the qualifications
and eligibility for municipal office, and because the Governor’s pardon power does not extend to
a federal offense, he cannot eliminate the collateral consequences that result from a disqualifying
federal conviction. The terms of the Governor’s certificate issued to Agpawa do not qualify as “a
pardon for the offense” under section 29-15 of the Election Code. Agpawa’s eligibility to seek or
hold municipal office in Illinois was not restored because the Governor could not remove the
collateral consequences that flow from the disqualifying federal conviction.
¶ 35 In light of our finding, we do not reach petitioners’ other arguments on appeal.
¶ 36 III. CONCLUSION
¶ 37 The judgment of the circuit court that affirmed the Board’s decision is reversed, and the
Board’s decision is also reversed. Roger Agpawa, having been convicted of the infamous crime of
mail fraud in 1999, was not a duly qualified candidate for any statutorily created municipal office
in Illinois, including the office of Mayor of the City of Markham, and is, therefore, ineligible to
hold or to take the oath of office as Mayor of the City of Markham.
¶ 38 Circuit court judgment reversed.
¶ 39 Board decision reversed.
19
No. 1-21-0080
¶ 40 PRESIDING JUSTICE WALKER, dissenting:
¶ 41 I respectfully dissent because the Committee on the Executive Proposal Number 1, as a
part of the Sixth Illinois Constitutional Convention, proposed the inclusion in the Illinois
Constitution of 1970 that “[t]he Governor may grant reprieves, commutations, and pardons, for all
offenses on such terms as he thinks proper. The manner of applying therefore may be regulated by
law.” Ill. Const. 1970, art. V, § 12; 6 Record of Proceedings, Sixth Illinois Constitutional
Convention 390. The Committee explained:
“The only change of substance involved in this revised section is one that
was *** added to allow the Governor to issue conditional pardons, as he may now
grant full pardons. *** Neither the existing pardons section nor this revision vest
power in the General Assembly to do more than define procedures. The discretion
to act is entirely that of the Governor.” 6 Record of Proceedings, Sixth Illinois
Constitutional Convention 390.
¶ 42 The Committee intended only to broaden the pardon power from the powers granted under
the 1870 Constitution. The General Assembly’s repeal of section 124-2 cannot limit the
Governor’s constitutional power to pardon. Thus, under the broader powers of the 1970
Constitution, the reasoning of People ex rel. Symonds v. Gualano, 124 Ill. App. 2d 208 (1970), is
just as applicable now as it was in 1968. The restoration of rights granted to Agpawa does not
affect his conviction for mail fraud, but it affects the consequences under Illinois law which flow
from the federal conviction. Gualano, 124 Ill. App. 2d at 214-15.
¶ 43 Other jurisdictions agree that the power to pardon includes the lesser power to restore
rights, including the right to hold public office. “[T]he authority of state governors to issue pardons
restoring collateral civil rights forfeited solely as a result of state law, including the right to seek
20
No. 1-21-0080
and hold a municipal or state office, to persons convicted of federal felonies has historically been
affirmed.” (Emphasis in original) Malone v. Shyne, 937 So. 2d 343, 356 (La. 2006); see also Lopez
v. Kase, 975 P.2d 346, 350 (N.M. 1999).
¶ 44 I would find that the governor’s certificate of restoration of the rights of citizenship
removed Agpawa’s ineligibility to hold public office. For the reasons stated, I respectfully dissent
from the majority’s opinion.
21
No. 1-21-0080
¶ 45 IV. Appendix
¶ 46 A.
F'WLEO
INDEX DEPARTMEN'f
SEP 2 5 ZO IB
OFFICE OF THE GOVERNOR
IN T_li,li QFF1¢~ OF
JRTC, 1oo w. RAMD0t.PH. su,n 16 1oo
CH•o.Co, 1Lu1-,01s 60601
SEORq tARY OF ST!>.TE
BRUCE u'..AUNER
GoVERNOR
Whereas, ROGER AGPAWA was convicted of the crime of Mail Fraud, Case: 1997 CR 820-2 In
the Northern Distri!=t of Illinois F'ederal Court and was sentenced December 22, 1999 to 36
Months Probation and 200 hours community service.
Whereas, it has been represented to me that ROGER AGf!AWA Is a fit and proper subject for
Restoration of Rights of Citizenship.
Now, Know Ye, that I, BRUCE RAUNER, Governor of the State of Ill lnols, by virtue of the
authority vested In me by the Constitutlon of the State, do by these presents:
RESTORATION OF RIGHTS OF CITIZENSHIP
ROGER AGPAWA
Of the said crime of which convicted, and ROGER AGPAWA is hereby discharged of and from
all further hinderance and restored to all rights of citizenship which may have been Forfeited
under [llfnois law as a result of th e federal conviction. All rights under federal law which were
forfeited as a resu lt of this conviction are unaffected by this action,
Grant Restoration of Rights, Excluding the Right to Ship, Transport, Possess or Receive
Firearms Which Were Forfeited by the Conviction.
DATBD: September 14, 2018
BRUCE RAUNER
GOVERNOR
22
No. 1-21-0080
¶ 47 B.
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, CHANCERY DIVISION
PEOPLE OF THE STATE OF
ILLINOIS,
Plaintiff, No. 2017-CH-05276
V. Calendar 16
ROGER AGPAWA, Judge David B. Atkins
Defendant.
ORDER
THIS CASE COMING TO BE HEARD on Defendant's Motion to Vacate
Judgment, the Court being fully advised in the premises,
THE COURT HEREBY FINDS AND ORDERS:
1. On August 9, 2017, this court found that Defendant Agpawa had been
convicted of felony mail fraud in 1999 in the US District Court for the
Northern District of Illinois. As noted then, th e court had no reason to
doubt (and Pla intiff did not dispute) that Mr. Agpawa had been reformed
since his now 18-year-old conviction or that he is a man of good standing
in his community who many people of Markham support. Nevertheless,
the court also found that as a result of his conviction he was ineligible
to hold municipa l office under Illinois law.
2. Plaintiff does not dispute that, as asserted in the instant Motion, Illinois
Governor Bruce Rauner, on September 20, 2018, issued a "Restoration
of Rights of Citizenship" purporting to restore all rights Agpawa had
"forfeited under Illinois law as a r esult of [his] federal conviction." Mot.
Ex. B.
3. It is clear that the Governor has complete authority to grant reprieves
from the consequences of criminal convictions to the maximum extent of
Illinois law, including Illinois-specific consequences of federal convic­
tions. See People ex rel. Symonds u. Gualano, 124 Ill. App. 2d 208, 220
(1970); Illinois Const., Art. V, § 12.
4. Defendant's Motion is accordingly GRANTED in that the court vacates
the effect of its August 9, 2017 Order a nd hereby finds that, by virtue of
a Restoration of Rights issued by the Governor of the State of Illinois,
Defendant Roger Agpawa's 1999 federal conviction for mail fraud no
longer renders him ineligible to hold municipal office in Illffl~E DAVID 8 ATKINS
ENTERED: .
SEP 28 2018
Judge David B.t;lrB.ll.lfili 0urt-l879
The Court.
P age 1 of 1
23