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

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Walker v. Barron, 2021 IL App (1st) 210080Appellate Court DAVID WALKER SR., ROBERT J. DEPOLO, and MARINA I.
Caption PANGOPOULOS, Petitioners-Appellants, v. WILLIAM BARRON,
RONDAL JONES, and THOMAS JACONETTY, in Their Official
Capacities as Members of the Markham Municipal Officers Electoral
Board; ROGER AGPAWA; and KAREN YARBROUGH, in Her
Official Capacity as the Cook County Clerk, Respondents-Appellees.
District & No. First District, First Division
No. 1-21-0080
Filed April 22, 2021
Decision Under Appeal from the Circuit Court of Cook County, No. 20-COEL-30; the
Review Hon. James R. Carroll, Judge, presiding.
Judgment Circuit court judgment reversed.
Board decision reversed.
Counsel on Andrew Finko, of Chicago, for appellants.
Appeal
Stephen M. Laduzinsky and Natalie K. Wilkins, of Laduzinsky &
Associates, P.C., of Chicago, for appellee Roger Agpawa.
Burton S. Odelson, John B. Murphy, and Ross D. Secler, of Odelson,
Sterk, Murphey, Frazier & McGrath, Ltd., of Evergreen Park, for other
appellees.
Panel 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 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 Election Code (10 ILCS 5/29-15 (West 2018)) and section
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
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 of our serious issues with this “motion” below. See infra ¶ 13.
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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.
¶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 (see Cook County Cir. Ct. G.O. 21 (Feb. 1,
2005)) 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 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.”
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¶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 (5 ILCS 120/1 et seq. (West 2018)).
¶ 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 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. See 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 2-1401 petition may be filed in the circuit
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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 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 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
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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 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, after conviction, 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. (Internal quotation
marks omitted.) Id. at 473-74.
¶ 19 “A pardon is ‘[a]n executive action that mitigates or sets aside punishment for a crime.’ ”
Id. at 473-74 (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. [Citation.] It removes a judicially imposed sentence and replaces it with a
lesser, executively imposed sentence. [Citation.] Finally, a reprieve is ‘the postponement of
the execution of a sentence.’ [Citation.]” Id.
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¶ 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.
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 virtue of 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 “[o]f the said crime of which
convicted” is “discharged of and from all further hinderance and restored to all rights of
citizenship which may have been forfeited under Illinois law as a result of the federal
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. Gualano, 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, 255 (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 77-2097, § 8-5-1 (eff. Jan.
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.
¶ 24 After the restoration of rights issued, the circuit court removed Gualano from office and
Gualano appealed. Id. at 211-12. 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: article
IV, section 4, which prohibited a person with a conviction for an infamous crime from holding
public office; and article V, section 13, 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 the law.” Ill. Rev. Stat. 1967, ch. 38, ¶ 124-2(a) (repealed by Pub. Act
77-2097, § 8-5-1 (eff. Jan. 1, 1973)). Section 124-2 also provided that at “[a]ny 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
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to hold municipal office “arises solely from section 4, Article IV of the Illinois Constitution
[of 1870],” and that the restoration of rights “does not affect Gualano’s [f]ederal conviction,
but only the consequences which flow, due to that conviction, from the Illinois Constitution.”
Gualano, 124 Ill. App. 2d 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 come only from the President of
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 (Ky. 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 891-92. 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.
¶ 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), and 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
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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. See 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 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 2016)) 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
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.
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.
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¶ 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. See 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. Gualano, 124 Ill. App. 2d 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 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 (see 730 ILCS 5/5-5-5(b) (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, 29-10 (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 (see 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
4
Our supreme court has indicated that “[the] bar [in section 3.1-10-5(b)] is not necessarily
permanent. Under the Election Code [citation], 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 the City of Chicago, 224 Ill. 2d 473, 474-75 (2007) (supervisory order)
(quoting 10 ILCS 5/29-15 (West 2004)); see also Delgado v. Board of Election Commissioners of the
City of Chicago, 224 Ill. 2d 481, 482-83 (2007) (supervisory order) (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).
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legislature could enact a statutory provision that restores eligibility to seek and hold public
office to a person 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 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.” (Internal quotation marks omitted.) 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
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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.
¶ 40 PRESIDING JUSTICE WALKER, dissenting:
¶ 41 I respectfully dissent because the Committee on the Executive Proposal No. 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, after conviction,
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 (hereinafter Proceedings). 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.” Proceedings 390.
“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.”
Proceedings 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 that
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 and hold a municipal or state office, to persons convicted of federal felonies has
historically been affirmed.” (Emphasis in original.) Malone v. Shyne, 2006-2190, p. 18 (La.
9/13/06); 937 So. 2d 343; see also Lopez v. Kase, 1999-NMSC-011, ¶ 12, 126 N.M. 733, 975
P.2d 346.
¶ 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.
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¶ 45 IV. Appendix
¶ 46 A
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¶ 47 B
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