Stephanie Bowens v. Pat Quinn

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-4153
S TEPHANIE B OWENS, et al.,
Plaintiffs-Appellees,
v.
P AT Q UINN, Governor of Illinois,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CV 04915—Joan B. Gottschall, Judge.
A RGUED F EBRUARY 17, 2009—D ECIDED A PRIL 2, 2009
Before P OSNER, K ANNE, and W OOD , Circuit Judges.
P OSNER, Circuit Judge. Article V, section 12, of the
Illinois Constitution provides that “the Governor may
grant reprieves, commutations and pardons, after con-
viction, for all offenses on such terms as he thinks
proper. The manner of applying therefor may be
regulated by law.” An Illinois statute establishes proce-
dures for the exercise of this power of executive
clemency, and provides that though “nothing in this
2 No. 08-4153
[statute] shall be construed to limit the power of the
Governor under the constitution to grant a reprieve,
commutation of sentence, or pardon, . . . the Governor shall
decide each application.” 730 ILCS 5/3-3-13(d), (e). The
appellees, who were the plaintiffs in the district court,
are twelve Illinoisans who filed petitions for executive
clemency between 2003 and 2005. Originally there were
just nine plaintiffs. But then-Governor Blagojevich, the
original defendant, while his motion to dismiss the
suit was pending, granted one of the petitions and denied
eight, whereupon the plaintiffs amended their com-
plaint to add three new plaintiffs, whose petitions for
executive clemency had not been acted on.
It might seem that the case would be moot with regard
to the nine plaintiffs whose petitions were acted on, since
the only relief they seek is an injunction requiring the
governor to decide within a reasonable time whether
to grant a pardon that has been applied for. But the
situation of the eight whose applications were denied is
similar to that of a pregnant woman who challenges an
abortion law and by the time the case is ready to decide
has given birth. Her case is “capable of repetition [she
may become pregnant again], yet evading review,” Roe
v. Wade, 410 U.S. 113, 124-25 (1973), quoting Southern
Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911); see
also Weinstein v. Bradford, 423 U.S. 147, 148-49 (1975)
(per curiam), and on this ground is held not to be moot.
The situation of the eight plaintiffs is similar because
each of them can file a new petition for executive
clemency after a year has elapsed from the denial of a
previous one, 730 ILCS 5/3-3-13(a-5), and thus would
No. 08-4153 3
face the prospect of having their next suit rendered moot
by another prompt denial. Eventually they would be
exhausted from repeated futile suits and would give
up, and the governor could then resume his alleged
policy of “pocket vetoing” clemency petitions. We con-
clude that only the claim of the plaintiff whose
clemency petition was granted is moot.
The plaintiffs contend that by failing to act on their
petitions within a reasonable time, the governors have
violated the due process clause of the Fourteenth Amend-
ment. The district court refused to dismiss the case,
precipitating this interlocutory appeal. 28 U.S.C. § 1292(b).
We think she should have dismissed the case; the plain-
tiffs have no good constitutional claim.
There is no Fourteenth Amendment property or liberty
interest in obtaining a pardon in Illinois—no substantive
entitlement, in other words—and so no ground for a
claim of denial of due process. This well-established
principle of constitutional law, Olim v. Wakinekona, 461 U.S.
238, 250-51 (1983); Villanova v. Abrams, 972 F.2d 792, 798
(7th Cir. 1992), was applied to pardons in Connecticut
Board of Pardons v. Dumschat, 452 U.S. 458, 464 (1981),
where the Court pointed out that “a decision whether to
commute a long-term sentence generally depends not
simply on objective factfinding, but also on purely sub-
jective evaluations and on predictions of future behavior
by those entrusted with the decision. A commutation
decision therefore shares some of the characteristics of a
decision whether to grant parole. See Greenholtz [v. Inmates
of Nebraska Penal & Correctional Complex, 442 U.S. 1, 9-10
4 No. 08-4153
(1979)]. Far from supporting an ‘entitlement,’ Greenholtz
therefore compels the conclusion that an inmate has ‘no
constitutional or inherent right’ to commutation of his
sentence.” (To the same effect, see Ohio Adult Parole
Authority v. Woodard, 523 U.S. 272 (1998), and Woratzeck v.
Arizona Board of Executive Clemency, 117 F.3d 400, 403-04
(9th Cir. 1997).) The Illinois governor’s power of pardon is
plenary; no substantive limitation is imposed by the state
constitution or by any other source of state law. Cf. Miller
v. Henman, 804 F.2d 421, 424-25 (7th Cir. 1986); Huggins v.
Isenbarger, 798 F.2d 203, 206 (7th Cir. 1986) (per curiam).
The plaintiffs try to sidestep Dumschat by arguing that
they are claiming an entitlement not to a pardon but
merely to a reasonably prompt decision on their applica-
tion, which they contend is a real “entitlement” because it
invokes a statutory command (the Governor shall decide
whether to grant the pardon) rather than merely seeking
an exercise of uncanalized discretion. But the only reason
they want a decision is that it is their only hope of getting
a pardon, and if they obtained a pardon it would not
secure an interest protected by the due process clause. The
grant of a pardon must not be confused with restoration of
freedom. The plaintiffs completed their sentences long
ago. They want pardons because they have trouble
finding and holding jobs, and they have that trouble
because they have to tell employers, if the employers
ask, that they are felons. This quandary would be relevant
to their quest for jobs (including promotions) only if a
pardon would wipe the slate clean, ending their status as
felons. In general that is not true, at least in Illinois. “[A]
pardon implies guilt; it does not obliterate the fact of the
No. 08-4153 5
commission of the crime and the conviction thereof.”
Talarico v. Dunlap, 685 N.E.2d 325, 327 (Ill. 1997). “ ‘The
granting of a pardon does not expunge the record [of
conviction].’ ” People v. Glisson, 372 N.E.2d 669, 670 (Ill.
1978), quoting the Illinois Clemency Rules Book.
The governor can, it is true, grant a pardon that ex-
plicitly authorizes expungement of the applicant’s con-
viction upon application to a court, 20 ILCS 2630/5(c), and
the grant of the application would bar prospective em-
ployers from considering the expunged conviction,
20 ILCS 2630/12(a). But the court to which the application
for expungement is made after the governor acts is not
required to grant it; the application is merely a request
that the court exercise discretion in the applicant’s favor.
People v. Howard, 2009 WL 711121 (Ill. Mar. 19, 2009).
Anyway the plaintiffs don’t tell us whether they sought
such a pardon, as they could have done by checking a
box on the application form, www.state.il.us/prb/docs/
clempetition.pdf (visited Mar. 20, 2009), or sought merely
the normal general pardon, which does not lead to
expungement. There are also pardons based on a deter-
mination that the applicant was innocent of the crime
of which he was convicted, People v. Chiappa, 368 N.E.2d
925, 926-927 (Ill. App. 1977), but our plaintiffs do not
claim to have been innocent, so we need not consider the
effect of such a pardon either.
And though having a criminal record does reduce a
person’s job opportunities by impairing his reputation
for good character, reputation is not a property or
liberty interest within the meaning of the due process
6 No. 08-4153
clauses of the federal Constitution. Siegert v. Gilley, 500 U.S.
226, 233-35 (1991); Paul v. Davis, 424 U.S. 693, 710-12 (1976);
Brown v. City of Michigan City, 462 F.3d 720, 729-32 (7th Cir.
2006); Mosrie v. Barry, 718 F.2d 1151, 1158-62 (D.C. Cir.
1983). Even if it were, this would not help the plain-
tiffs because they don’t contest the convictions that
injured their reputations, and this implies that they had
in their criminal proceedings adequate process to try to
protect their reputations from being sullied by a crim-
inal conviction.
They do not claim to be seeking pardons in order to
remove statutory disabilities, either, such as the right to
vote or to hold public office; anyway most statutory
disabilities resulting from a felony conviction are restored
automatically upon the completion of the defendant’s
sentence, see Margaret Colgate Love, “Relief from the
Collateral Consequences of a Criminal Conviction (Illi-
nois),” January 2007, www.sentencingproject.org/tmp/File/
Collateral%20Consequences/Illinois(2).pdf (visited Mar. 20,
2009), and others can be restored by administrative fiat.
See, e.g., 730 ILCS 5/5-5.5-5 et seq.
And while a requirement of prompt action on a petition
for a pardon may sometimes benefit the applicant, if the
alternative would be a pocket veto, it is not a substantive
entitlement; otherwise any time a state official failed to
act within a prescribed period of time he would be
deemed to have violated the federal Constitution. That
cannot be correct, as only substantive entitlements are
protected by the due process clauses. Unless compliance
with a procedural requirement secures a substantive
No. 08-4153 7
entitlement, the failure to comply with it does not invade
an interest protected by the due process clauses. “The
executive’s clemency authority would cease to be a
matter of grace committed to the executive authority if
it were constrained by the sort of procedural require-
ments that respondent urges.” Ohio Adult Parole Authority
v. Woodard, supra, 523 U.S. at 285.
We do not even think that the Illinois statute creates
a requirement of prompt, or indeed of any, action by the
governor on a clemency petition. The statute merely
describes steps in the sequence of procedures in clemency
matters. There is first the petition, then consideration of
it by the Prisoner Review Board, then “the Governor
shall decide each application and communicate his deci-
sion to the Board which shall notify the petitioner,” and
there are further steps after that. 730 ILCS 5/3-3-13.
Unless and until the governor decides the application
and communicates his decision to the Board, the further
steps are pretermitted.
If this is wrong and the statute does require the
governor to make a decision, still, it does not specify a
time limit. It might seem that a “reasonable” time could
be implied, as is done in contracts that do not specify a
deadline for performance. E. Allan Farnsworth, Contracts
§ 3.28, p. 205 (4th ed. 2004); Restatement (Second) of Contracts
§ 204, comment d (1981); Rose v. Mavrakis, 799 N.E.2d
469 (Ill. App. 2003); Meyer v. Marilyn Miglin, Inc., 652
N.E.2d 1233, 1239 (Ill. App. 1995). But we have no idea
what a “reasonable” time for deciding a clemency
petition would be. It would depend on the number of
8 No. 08-4153
petitions, which must vary from year to year (we have
data only for 2005, when 713 clemency petitions were
filed; the governor granted 1 and denied 31, and so 681
were left undecided), and on the other tasks besides
reviewing recommendations for clemency forwarded to
him by the Prisoner Review Board to which a governor
must attend.
Executive clemency is a classic example of unreviewable
executive discretion because it is one of the traditional
royal prerogatives (along with receiving foreign ambassa-
dors and commanding the armed forces) borrowed by
republican governments for bestowal on the head of
government. U.S. Const., art. II, § 2, cl. 1; Schick v. Reed,
419 U.S. 256, 260-66 (1974); Ex parte Grossman, 267 U.S. 87,
108-10 (1925); John Harrison, “Pardon as Prerogative,” 13
Fed. Sentencing Rptr. 147 (2001) (“seeing the pardon
power as a bit of the royal prerogative dropped into our
generally law-bound constitutional system provides a
perspective on the actual and possible functions of that
power”). We therefore balk at the idea of federal judges’
setting timetables for action on clemency petitions by
state governors.
And what sanction could a federal court impose for
noncompliance with any “reasonable time” deadline that
the court might set? Would it be to grant the pardon? If so,
the governor’s office would be overwhelmed. Every
felon in the state would apply for a pardon knowing that,
with all applying, the governor’s office, overwhelmed,
would be unable to process the applications within
the deadline set by the court, and so they would be
No. 08-4153 9
granted by default. Federal courts have run prisons,
school systems, police and fire departments, and other
state and local agencies found to have engaged in uncon-
stitutional conduct. But for a federal court to run a gov-
ernor’s pardon system would be a step too far.
The ruling by the district court is reversed with in-
structions to dismiss the suit with prejudice.
R EVERSED.
4-2-09