People v. Agpawa

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Appellate Court Date: 2018.07.25
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People ex rel. Foxx v. Agpawa, 2018 IL App (1st) 171976
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS ex rel. KIMBERLY
Caption M. FOXX, State’s Attorney of Cook County, Plaintiff-Appellee, v.
ROGER AGPAWA, in His Official Capacity as Mayor of the City of
Markham, Defendant-Appellant.
District & No. First District, First Division
Docket No. 1-17-1976
Filed March 30, 2018
Decision Under Appeal from the Circuit Court of Cook County, No. 17-CH-5276; the
Review Hon. David B. Atkins, Judge, presiding.
Judgment Affirmed.
Counsel on Odelson & Sterk, Ltd., of Evergreen Park (Burton S. Odelson and
Appeal Ross D. Secler, of counsel), for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Chaka M. Patterson,
Sisavanh B. Baker, and Hailey M. Golds, Assistant State’s Attorneys,
of counsel), for the People.
Panel PRESIDING JUSTICE PIERCE delivered the judgment of the court,
with opinion.
Justices Harris and Mikva concurred in the judgment and opinion.
OPINION
¶1 Defendant Roger Agpawa was elected mayor of the City of Markham at the April 4, 2017,
consolidated election. Plaintiff Kimberly Foxx, in her capacity as State’s Attorney of Cook
County, filed a complaint for quo warranto, declaratory judgment, and a permanent
injunction, alleging that defendant was ineligible to serve as mayor or to take the oath of office
due to his 1999 federal felony conviction for mail fraud. The parties filed cross-motions for
judgment on the pleadings, and the circuit court of Cook County granted judgment in favor of
plaintiff. Defendant appeals. For the following reasons, we affirm.
¶2 BACKGROUND
¶3 In August 1999, defendant pleaded guilty in federal court to one count of felony mail fraud.
He was sentenced to 36 months’ probation, was required to perform 200 hours of community
service, and was ordered to make restitution. Defendant completed all the terms of his
sentence. Defendant has not received a pardon from the President of the United States. It is
undisputed that defendant has engaged in numerous civic-minded activities since his
conviction, including, among others, serving as the Fire Chief of the City of County Club Hills,
a Code Court Administrator for the Markham Municipal Court, and a Deputy Fire Chief and
911 coordinator for the City of Markham. He is an active member of his church, is the
president of the booster club for a local high school, and has participated in numerous
community-based improvement programs.
¶4 Defendant filed nominating petitions for the office of mayor of the City of Markham for the
April 4, 2017, consolidated election. No preelection challenges were made to his petitions, and
defendant’s name appeared on the ballot. Prior to the election, on March 23, 2017, the plaintiff
sent defendant a letter, informing him that he was ineligible to serve as mayor due to his prior
felony conviction and that, if elected, he would be ineligible to take the oath of office.
Defendant won the election. The Cook County clerk certified the election results and declared
defendant the winner of the election for mayor of the City of Markham.
¶5 On April 24, 2017, plaintiff filed a verified complaint for quo warranto, declaratory
judgment, and injunctive relief. Plaintiff’s complaint contended that defendant, pursuant to
section 3.1-10-5(b) of the Illinois Municipal Code (65 ILCS 5/3.1-10-5(b) (West 2016)), was
not eligible to take the oath of office for a municipal office because of his felony conviction.
Furthermore, plaintiff asserted that, pursuant to section 29-15 of the Election Code (10 ILCS
5/29-15 (West 2016)), defendant had been convicted of an “infamous crime” and was therefore
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.”
It is uncontested that defendant has not received a presidential pardon. Plaintiff, therefore,
asserted that defendant was ineligible to take the oath of office for mayor of the City of
Markham.
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¶6 Also on April 24, 2017, plaintiff filed a motion for a temporary restraining order and
preliminary injunction. On April 25, 2017, the Cook County clerk certified the results of the
April 4, 2017, consolidated election. On April 28, 2017, the circuit court granted plaintiff’s
motion for a temporary restraining order and preliminary injunction, enjoining defendant from
taking the oath of office until further order of court.
¶7 Defendant filed an answer and affirmative defenses to plaintiff’s complaint. He asserted, in
relevant part, that pursuant to section 5-5-5(a) and (b) of the Unified Code of Corrections
(Code of Corrections) (730 ILCS 5/5-5-5(a), (b) (West 2016)), his civil rights, including the
right to run for and hold elected municipal office, “remain intact.” He further asserted that
section 3.1-10-5 of the Municipal Code and section 29-15 of the Election Code (collectively,
Conviction Statutes) violate his rights and the rights of all “similarly situated” voters of the
City of Markham under the first and fourteenth amendments to the federal constitution (U.S.
Const., amends. I, XIV), and article I, sections 2 and 4 of the Illinois Constitution (Ill. Const.
1970, art. 1, §§ 2, 4).
¶8 The parties filed cross-motions for judgment on the pleadings. The cross-motions were
fully briefed, and after oral argument on August 8, 2017, the circuit court took the matter under
advisement. On August 9, 2017, the circuit court entered a written order granting plaintiff’s
motion for judgment on the pleadings and denying defendant’s motion. Defendant was
therefore barred from taking the oath and holding the office of mayor of the City of Markham.
Defendant filed a timely notice of appeal.
¶9 ANALYSIS
¶ 10 On appeal, defendant advances two principal arguments. First, he contends that, under the
relevant statutory scheme, when the Election Code, the Municipal Code, and the Code of
Corrections are read in pari materia, his “right” to seek municipal office is a “civil right” that
was restored under section 5-5-5(a) of the Code of Corrections, following his completion of all
of the terms of his federal sentence. Second, he advances constitutional arguments, arguing
that the application of the Conviction Statutes operates to deprive him and all other similarly
situated voters of the City of Markham of their constitutionally protected voting rights and
deprives defendant of his “right” to hold municipal office. We address these arguments in turn.
¶ 11 A motion for judgment on the pleadings pursuant to section 2-615(e) of the Code of Civil
Procedure (Code) (735 ILCS 5/2-615(e) (West 2016)) “concedes the truth of the well-pleaded
facts in the nonmovant’s pleadings.” Allstate Property & Casualty Insurance Co. v. Trujillo,
2014 IL App (1st) 123419, ¶ 16. Where the parties file cross-motions for judgment on the
pleadings, they generally acknowledge that there are no questions of fact and that the issues
involved are questions of law. See Zipf v. Allstate Insurance Co., 54 Ill. App. 3d 103, 108
(1977). We review a circuit court’s order granting judgment on the pleadings de novo. Trujillo,
2014 IL App (1st) 123419, ¶ 16.
¶ 12 I. Statutory Challenges
¶ 13 We first set forth the constitutional and statutory provisions relevant to defendant’s
arguments.
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¶ 14 Article XIII, section 1, of the Illinois Constitution states: “A person convicted of a felony,
bribery, perjury or other infamous crime shall be ineligible to hold an office created by this
Constitution. Eligibility may be restored as provided by law.” Ill. Const. 1970, art. XIII, § 1.
¶ 15 Section 5-5-5(a) of the Code of Corrections states: “Conviction and disposition shall not
entail the loss by the defendant of any civil rights, except under this Section and Sections 29-6
and 29-10 of The Election Code, as now or hereafter amended.” 730 ILCS 5/5-5-5(a) (West
2016). Subsection (b) provides: “A person convicted of a felony shall be ineligible to hold an
office created by the Constitution of this State until the completion of his sentence.” Id.
§ 5-5-5(b).
¶ 16 The Election Code provides that a person convicted under either section 29-6 (mutilation
of election materials, a Class 4 felony) or section 29-10 (perjury, a Class 3 felony) is ineligible
for public employment for a period of five years immediately following completion of his or
her sentence. 10 ILCS 5/29-6, 29-10(b) (West 2016). Section 29-10 of the Election Code
further provides that public employment includes “any elected or appointed office created by
the Constitution or laws of this State, or any ordinance of a unit of local government” and “any
position as an employee of the State of Illinois, or a unit of local government or school
district.” Id. § 29-10(b).
¶ 17 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.”1 Id. § 29-15.
¶ 18 Finally, 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 2016).
¶ 19 Defendant argues that his right to hold municipal office is a “civil right” that was restored
under section 5-5-5(a) of the Code of Corrections, following the completion of all of the terms
of his federal sentence. He relies on Tully v. Edgar, 171 Ill. 2d 297 (1996), and East St. Louis
Federation of Teachers, Local 1220 v. East St. Louis School District No. 189 Financial
Oversight Panel, 178 Ill. 2d 399 (1997), to argue that Illinois courts recognize the “right” to
1
Under section 124-1 of the Code of Criminal Procedure of 1963 (Code of Criminal Procedure), an
infamous crime was defined as
“the offenses of arson, bigamy, bribery, burglary, deviate sexual assault, forgery, incest or
aggravated incest, indecent liberties with a child, kidnaping or aggravated kidnaping, murder,
perjury, rape, robbery, sale of narcotic drugs, subornation of perjury, and theft if the punishment
imposed is imprisonment in the penitentiary.” Ill. Rev. Stat. 1983, ch. 38, ¶ 124-1 (repealed by Pub.
Act 84-1047, § 2 (eff. July 1, 1986)).
“[C]ourts reviewing section 29-15 of the Election Code subsequent to the repeal of section 124-1 of the
Code of Criminal Procedure have continued to apply its definition of the term ‘infamous crime.’ ”
Alvarez v. Williams, 2014 IL App (1st) 133443, ¶ 10. Here, defendant does not argue on appeal that
felony mail fraud is not an “infamous crime.” As the circuit court noted in its written order, “[f]elony
fraud offenses clearly implicate issues of common honesty and decency, and therefore constitute
‘infamous crimes’ as long defined under Illinois law.” See People ex rel. Keenan v. McGuane, 13 Ill.
2d 520, 534 (1958); People ex rel. Symonds v. Gualano, 97 Ill. App. 2d 248 (1968).
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hold office. He also relies on decisions from the Seventh Circuit Court of Appeals to assert that
the right to hold public office is an important “civil right” that is restored to convicted felons
after completion of their sentences. See United States v. Gillaum, 372 F.3d 848, 861 (7th Cir.
2004) (“Under Illinois law *** a criminal defendant’s rights to vote and hold office are
automatically restored to him at the completion of his prison sentence.”).
¶ 20 Defendant further contends that a convicted felon’s loss of civil rights is a collateral
consequence of the conviction and not the punishment itself. He claims that section 5-5-5 of
the Code of Corrections “sets the limit to the collateral deprivation of civil rights of a
conviction.” He argues that section 29-15 of the Election Code imposes a stricter collateral
consequence than section 5-5-5 of the Code of Corrections because the Election Code renders
an individual ineligible to hold any office as a result of being convicted for an “infamous
crime,” whereas the Code of Corrections allows for a convicted felon’s eligibility to hold any
elected office to be restored upon completion of his sentence. He argues that the Code of
Corrections, the Election Code, and the Municipal Code must be read in pari materia to avoid
“negation of at least one of these statutes.” We disagree.
¶ 21 Defendant acknowledges that this court has rejected similar challenges to section 29-15 of
the Election Code based on section 5-5-5 of the Code of Corrections. This court has previously
held that the source of a convicted felon’s disqualification from holding municipal office is not
article XIII, section 1, of the Illinois Constitution because public municipal offices are not
“created by” the Illinois Constitution; public municipal offices are created by legislative
enactment. People ex rel. Ryan v. Coles, 64 Ill. App. 3d 807, 811 (1978). We have also
previously held that there is no ambiguity in section 29-15 of the Election Code’s prohibition
on felons holding municipal office, and that there is no conflict between section 5-5-5(b) of the
Code of Corrections and section 29-15 of the Election Code. Pappas v. Calumet City
Municipal Officers’ Electoral Board, 288 Ill. App. 3d 787, 790 (1997) (rejecting a mayoral
candidate’s claim that his right to run for municipal office was restored upon completion of his
felony sentences).
¶ 22 Defendant contends, however, that our supreme court in Tully and East St. Louis, and
numerous Seventh Circuit Court of Appeals cases, recognized that the “right” to hold an
elective municipal office is “an important civil right.” He contends that holding public office is
a “civil right,” and that we have never addressed whether section 5-5-5(a) of the Code of the
Corrections causes a person to lose or restores the “right” to run for municipal elective office.
We disagree with defendant’s conclusion that Tully and East St. Louis recognize such a
“right.”
¶ 23 In Tully, the plaintiff voter challenged the constitutionality of Public Act 89-5 (Pub. Act
89-5, (eff. Jan. 1, 1996)), which purported to change the position of trustee of the Board of
Trustees of the University of Illinois from an elective to an appointive office. Tully, 171 Ill. 2d
at 300. The plaintiff contended that Public Act 89-5 violated his fundamental voting rights
under article III, section 1, of the Illinois Constitution (Ill. Const. 1970, art. III, § 1) because it
shortened the term of elected trustees after the election occurred and operated as a
“ ‘post-hoc’ ” negation of the plaintiff’s right to vote. Tully, 171 Ill. 2d at 301. Our supreme
court observed that “legislation that affects any stage of the election process implicates the
right to vote,” (emphasis in original) (id. at 307), and that “the constitutional right to vote is
implicated by legislation that gives some votes cast greater or lesser weight than others” (id.
(citing Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54 (1990))). The supreme court
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found that Public Act 89-5 “establishe[d] a mechanism for total disregard of all votes cast by
citizens in a particular election,” and “voids the votes cast by citizens in a valid election and
authorizes the Governor to select the candidates of his choice.” (Emphases in original.) Id. Our
supreme court concluded that Public Act 89-5 could not withstand strict scrutiny, concluding
in part that, “Legislation that nullifies the votes cast in a valid election and removes the elected
trustees from office midterm is not necessary to or narrowly tailored to achieve the
legislature’s presumed goal” of advancing the State’s compelling interest in education. Id. at
311-12.
¶ 24 In East St. Louis, a school district and its superintendent challenged section 1B-20 of the
School District Financial Oversight Panel and Emergency Financial Assistance Law
(Emergency Financial Assistance Law) (105 ILCS 5/1B-20 (West 1994)). Upon certification
that a local school district was in financial difficulty, the Emergency Financial Assistance Law
in part allowed the State Board of Education to convene a panel to approve or reject local
school board contracts. East St. Louis, 178 Ill. 2d at 404. The panel also had the authority to
remove locally elected school board members if they refused to comply with a valid order from
the panel. Id. at 405. The school board voted to approve the renewal of the superintendent’s
contract, but the panel ordered the school district not to renew the contract. Id. When the school
board members refused to comply, the panel removed the elected school board members. Id.
The circuit court ruled that section 1B-20 of the Emergency Financial Assistance Law was
unconstitutional because it “violated substantive and procedural due process and that it
impinged upon the right to vote.” Id. at 406-07. Our supreme court reversed. The court rejected
the superintendent’s reliance on Tully that section 1B-20 unconstitutionally infringed on the
right to vote because section 1B-20 was enacted before the current school board members were
elected. Id. at 414-15.
¶ 25 Here, defendant reads Tully and East St. Louis too broadly when he asserts that those cases
recognize a “right” to run for elective office that might be preserved or restored by section
5-5-5(a) of the Code of Corrections because neither case acknowledges such a right. Both of
those cases considered whether legislation infringed on voters’ fundamental right to vote by
removing validly elected officials from office, and examined, in part, a validly elected
official’s right to maintain office once elected. Tully stands for the proposition that “post-hoc”
legislation that attempts to remove elected officials from office by changing an elective office
to an appointive office infringes on the voters’ fundamental and constitutionally protected
suffrage rights. East St. Louis refused to extend the rationale in Tully to situations where the
complained-of legislation was in effect at the time that the officials were elected. East St. Louis
also acknowledged that “[t]he legislature has the discretion to formulate the character,
function, and duties of school boards” (id. at 413-14) and that “the powers of municipal
corporations ‘may be enlarged, diminished, modified or revoked *** at the pleasure of the
legislature’ ” (id. at 414 (quoting People ex rel. Taylor v. Camargo Community Consolidated
School District No. 158, 313 Ill. 321, 324 (1924)). Neither Tully nor East St. Louis addressed
whether the legislature may properly limit an individual’s eligibility for elective municipal
office. Nor does either case stand for the proposition that there is a “right” to run for municipal
office that is not lost by or is restored to convicted felons by operation of section 5-5-5(a) of the
Code of Corrections.
¶ 26 Defendant’s reliance on United States v. McKinley, 23 F.3d 181 (7th Cir. 1994), United
States v. Williams, 128 F.3d 1128 (7th Cir. 1997), and Gillaum, 372 F.3d 848, is also
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misplaced. He reads those cases out of context, and none of those federal cases conclude that
Illinois recognizes a “right” to run for elective municipal office that is neither lost by, nor is
restored to, all persons with felony convictions. In McKinley, Williams, and Gillaum, the
defendants had prior state felony convictions that they argued should not be considered for the
purposes of either federal prosecution as a felon in possession of a firearm and ammunition,
(McKinley, 23 F.3d at 183-84) or sentencing as an “[a]rmed [c]areer [c]riminal” (Williams, 128
F.3d at 1134-35; Gillaum, 372 F.3d at 859-62). In each case, the court of appeals examined
whether there were state laws that “substantially restored” the defendants’ preconviction rights
or whether the state continued to withhold some preconviction rights, and examined the
interplay between state laws and a federal law that provided, “Any conviction which has been
expunged, or set aside or for which a person has been pardoned or has had civil rights restored
shall not be considered a conviction for purposes of this chapter ***.” 18 U.S.C. § 921(a)(20)
(1994). McKinley concluded that Indiana law precluded a felon from holding elective office
and used prior felony convictions for the purposes of state recidivist statutes (McKinley, 23
F.3d at 183-84), Williams concluded that Missouri law prohibited convicted felons from
holding the office of sheriff or serving as highway patrolmen (Williams, 128 F.3d at 1135), and
Gillaum concluded that Illinois law contained a prohibition on the possession of a firearm by a
felon (Gillaum, 372 F.3d at 861 (citing 720 ILCS 5/24-1.1 (West 2004)). The federal court of
appeals therefore reasoned that, in each case, the defendants’ civil rights were not substantially
restored for the purposes of 18 U.S.C. § 921(a)(20).
¶ 27 Nothing in these federal decisions amounts to a holding that a convicted felon’s restoration
of civil rights under section 5-5-5(a) of the Code of Corrections prohibits the legislature from
establishing qualifications for holding a municipal office. Gillaum acknowledged that in
Illinois, “a criminal defendant’s rights to vote and hold office are automatically restored to him
at the completion of his prison sentence.” Id. (citing 730 ILCS 5/5-5-5(b), (c) (West 2004)).
Gillaum also noted that, “by virtue of his conviction, a criminal defendant loses no other civil
rights, with the exception of the right to hold licenses to engage in certain occupations and the
right to hold public employment after conviction for certain election-related offenses.” Id.
(citing 730 ILCS 5/5-5-5(a) (West 2004)). But as the discussion above makes clear, Gillaum
considered whether Illinois law substantially restored the criminal defendant’s rights under
Illinois law for the purpose of avoiding an enhanced sentence under 18 U.S.C. § 921(a)(20),
not whether a convicted felon has the “right” to hold elective municipal office. We find that,
here, the federal case law cited does not adequately support defendant’s argument that there is
a “civil right” to hold elective municipal office that is not lost by or is restored to a convicted
felon by operation of section 5-5-5(a) of the Code of Corrections.
¶ 28 Furthermore, defendant does not advance any argument that section 3.1-10-5 of the
Municipal Code is ambiguous such that we must construe section 3.1-10-5 of the Municipal
Code in pari materia with section 5-5-5(a) of the Code of Corrections. See Pappas, 288 Ill.
App. 3d at 790 (finding that section 3.1-10-5 of the Municipal Code is not ambiguous). We
conclude, as we did in Pappas, that there is no conflict between section 5-5-5(a) of the Code of
Corrections and section 3.1-10-5(b) of the Municipal Code. We note that our legislature has
amended section 3.1-10-5 of the Municipal Code on eight occasions since our decision in
Pappas, and it has not amended the language of section 3.1-10-5(b) to allow persons
“convicted in any court located in the United States of any infamous crime, bribery, perjury, of
other felony” to be eligible for elective municipal office. We conclude that the circuit court
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properly found that the plain language of section 3.1-10-5 of the Municipal Code controls
whether defendant was ineligible to take the oath of office for the office of mayor of the City of
Markham.
¶ 29 In sum, we are not persuaded by defendant’s arguments that our supreme court’s decisions
in Tully and East St. Louis—together with the decisions in McKinley, Williams, and
Gillaum—establish that, by operation of section 5-5-5(a) of the Code of Corrections, a
convicted felon’s “right” to hold municipal elective office is not lost or is restored.
¶ 30 II. Constitutional Challenges
¶ 31 Defendant next contends that the Conviction Statutes, “as applied to [him] and those
similarly situated [v]oters of the City of Markham,” violates article III, sections 1, 3, and 4, of
the Illinois Constitution. He contends that the Conviction Statutes violate voters’ voting rights
and violate the principles that elections must be free and equal and that laws governing voter
registration and the conduct of elections must be general and uniform under article III, sections
1, 3, and 4, of the Illinois Constitution (Ill. Const. 1970, art. III, §§ 1, 3, 4). He further argues
that the Conviction Statutes, as applied to him, violate his rights under the first and fourteenth
amendments to the United States Constitution, (U.S. Const., amends. I, XIV), as well as article
I, sections 2 and 4, of the Illinois Constitution (Ill. Const. 1970, art. I, §§ 2, 4).
¶ 32 “ ‘An “as-applied” challenge requires a party to show that the statute violates the
constitution as the statute applies to him.’ ” In re Deshawn G., 2015 IL App (1st) 143316, ¶ 59
(quoting People v. Brady, 369 Ill. App. 3d 836, 847 (2007)). “Reviewing courts have a duty to
construe a statute to preserve its constitutionality whenever reasonably possible.” Bartlow v.
Costigan, 2014 IL 115152, ¶ 18 (citing People v. Masterson, 2011 IL 110072, ¶ 23). Statutes
“are presumed constitutional, and the challenging party has the burden to prove the statute is
unconstitutional.” Id. The constitutionality of a statute is a question of law reviewed de novo.
Hayashi v. Illinois Department of Financial & Professional Regulation, 2014 IL 116023, ¶ 22.
¶ 33 A. The Right to Vote
¶ 34 First, defendant argues that voters of the City of Markham were given “significant,
widespread, and nearly constant opportunity to scrutinize all candidates *** including
[d]efendant’s record.” He argues that plaintiff’s challenge to his ability to hold office
“nullif[ies] the votes cast by the people of Markham,” which affects their voting rights. He
relies on Tully to argue that this case involves “the ‘post-hoc’ nullification of votes and
disqualification of the duly elected Mayor of the City of Markham *** after the ballots have
been cast.” Defendant further relies on Tully to assert that the Conviction Statutes operate to
impair his and similarly situated voters’ fundamental right to vote and that we must therefore
apply strict scrutiny.
¶ 35 First, we reject defendant’s contention that this case involves the disqualification of a “duly
elected” municipal official. As discussed above, defendant’s felony conviction of an infamous
crime rendered him ineligible to hold municipal office, and his eligibility did not change
simply because he received more votes than anyone else. Defendant cites no authority to
support the proposition that receiving more votes than any other candidate somehow made him
eligible to hold municipal office.
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¶ 36 Furthermore, defendant’s characterization of the circuit court’s order as a “post-hoc”
nullification of the voters’ right to vote is incorrect. While it is true that plaintiff’s complaint,
and the circuit court’s determination that defendant was ineligible to hold elective municipal
office, occurred after the election—or “postelection”—the bases of defendant’s ineligibility
are the Conviction Statutes, which were in effect well before defendant decided to run for
office and well before defendant pleaded guilty to felony mail fraud. Tully’s discussion of
“post-hoc” nullification related to the Governor’s attempt to remove elected officials through
legislation that was enacted during the elected officials’ terms. In other words, the
legislation—not the removal of the official—was “post-hoc,” and the legislation
unconstitutionally impaired the voters’ fundamental rights to vote. Tully, 171 Ill. 2d at 307
(“The vote cast by a citizen is not simply diluted, but is totally nullified by the legislative
scheme.”). But as our supreme court made clear in East St. Louis—which defendant fails to
meaningfully acknowledge—the fundamental right to vote is not implicated when the
legislative provisions relied on to remove an elected municipal official were in effect at the
time the official took office. East St. Louis, 178 Ill. 2d at 414-15. The situation before us is
more analogous to East St. Louis than it is to Tully because the Conviction Statutes were in
effect before and at the time of the April 4, 2017, consolidated election and operate to bar
convicted felons from holding municipal office. Therefore, defendant’s “as applied” challenge
to the Conviction Statutes on the basis that the statutes deprived voters of their fundamental
right to vote fails.
¶ 37 B. Uniformity of Election Laws
¶ 38 Defendant next argues that laws that “apply to invalidate and quash the election of a
mayoral candidate but would have no effect on a gubernatorial or state senate election” violate
article III, section 4, of the Illinois Constitution, which provides:
“The General Assembly by law shall define permanent residence for voting
purposes, insure secrecy of voting and the integrity of the election process, and
facilitate registration and voting by all qualified persons. Laws governing voter
registration and conduct of elections shall be general and uniform.” Ill. Const. 1970,
art. III, § 4.
Defendant, however, fails to cite any authority to support his contention that statutes regulating
eligibility for municipal office somehow affect the uniformity of how elections are conducted.
Defendant has therefore forfeited this argument, and it warrants no further consideration. Ill. S.
Ct. R. 341(h)(7) (eff. July 1, 2017) (An appellant’s brief must contain “the contentions of the
appellant and the reasons therefor, with citation of the authorities and the pages of the record
relied on. *** Points not argued are waived ***.”).
¶ 39 C. Free and Equal Elections
¶ 40 Defendant does not advance any argument in support of his nominal contention that the
Conviction Statutes violate article III, section 3, of the Illinois Constitution’s guarantee that
“All elections shall be free and equal.” Ill. Const. 1970, art. III, § 3. He has therefore forfeited
any such argument. Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2017).
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¶ 41 D. Equal Protection
¶ 42 Defendant next argues the Conviction Statutes violate his and the similarly situated voters
of Markham’s rights by imposing different restrictions on constitutional officers than on
municipal officers in violation of the equal protection provisions of the fourteenth amendment
under the federal constitution (U.S. Const., amend. XIV, § 1) and article I, section 2, of the
Illinois Constitution (Ill. Const. 1970, art. I, § 2). Defendant relies on our supreme court’s
statement in Tully that “legislation that affects any stage of the election process implicates the
right to vote.” (Emphasis in original.) Tully, 171 Ill. 2d at 307.
¶ 43 In People v. Hofer, 363 Ill. App. 3d 719 (2006), we considered and rejected a similar equal
protection challenge. There, the defendant was elected to the office of president of the Board of
Trustees of the Village of Sorrento. Id. at 720. The State filed a quo warranto complaint,
seeking the defendant’s removal pursuant to section 3.1-10-5 of the Municipal Code based on
his prior felony conviction for driving while license revoked. Id. The defendant argued that
section 3.1-10-5 violated his equal protection rights, and the circuit court granted summary
judgment in favor of the State. Id. at 721. On appeal, we examined the defendant’s equal
protection challenge under the rational basis standard because
“the right to run for a statutorily created office and the right to serve in that office have
not been found to be absolute or fundamental rights [citations] and because this case
does not fall within the types of cases where the challenged classification imposes
burdens on new political parties or where ballot access is dependent on a person’s
economic means.” Id. at 722.
We found that the equal protection provisions of the federal and state constitutions, as well as
the Conviction Statutes, “were established to ensure public confidence in the honesty and
integrity of those serving in state and local offices.” Id. at 723 (citing People ex rel. Ryan, 64
Ill. App. 3d at 811-12). We observed “that the opportunities and the means to scrutinize
candidates for municipal offices and to oversee the activities of those elected are significantly
less than the opportunities for scrutiny and oversight of those who run for and serve in
constitutional offices.” Id. at 724. Elected officials make important fiscal and policy decisions
impacting the residents of a municipality. Id. We concluded that “the provision requiring a
convicted felon who wants to run for a statutorily created office to establish to the
Governor’s[2] satisfaction that he has rehabilitated himself and is worthy of the public trust is
neither arbitrary nor irrational.” Id.
¶ 44 In Parker v. Lyons, 757 F.3d 701 (7th Cir. 2014), the federal court of appeals addressed a
similar equal protection challenge to section 29-15 of the Election Code. There, the Peoria
State’s Attorney filed a quo warranto complaint in state court to block Parker’s candidacy for a
seat on a local school board. Id. at 704. The circuit court entered judgment in favor of the State,
and Parker appealed. Id. at 705. While his appeal was pending in state court, Parker filed suit in
federal district court, asserting in part that the State’s quo warranto action violated his equal
protection rights. Id. The district court dismissed all of Parker’s claims, and he appealed. Id.
The Seventh Circuit Court of Appeals concluded that it had jurisdiction over Parker’s claims,
2
The defendant in People ex rel. Ryan had a state felony conviction, and the Governor of Illinois
has the power to pardon persons convicted of state crimes. Here, defendant has a federal felony
conviction, and only the President of the United States has the power to pardon persons convicted of
federal crimes. See U.S. Const., art. II, § 2.
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but rejected his facial challenge to section 29-15 of the Election Code on equal protection
grounds, observing that the right to run for or hold public office is neither a fundamental right
nor are convicted felons a suspect class. Id. at 707. The federal court of appeals cited Hofer in
support of its finding that Illinois has an interest in “ensur[ing] ‘public confidence in the
honesty and integrity of those serving in state and local offices.’ ” Id. (quoting Hofer, 363 Ill.
App. 3d at 723). Furthermore, even assuming that heightened scrutiny applied to Parker’s
equal protection claim, it would still fail because the Supreme Court had held that states may
deprive convicted felons of their fundamental right to vote. Id. (citing Richardson v. Ramirez,
418 U.S. 24, 56 (1974), and Crawford v. Marion County Election Board, 553 U.S. 181, 210
(2008) (Souter, J., dissenting, joined by Ginsburg, J.)).
¶ 45 Here, defendant contends that Hofer and Parker both involved facial challenges as
opposed to an “as applied” challenge, and that the State’s proffered government interests in
Hofer are not present here. He argues that his felony conviction was not a secret, that he was
heavily attacked by his opponents in the election, and that the voters of Markham had ample
opportunity to scrutinize his record. In effect, he argues that local voters can overcome
established law and elect otherwise ineligible candidates to a municipal office, a novel but
unsupported contention. But even accepting defendant’s contention that the State’s legitimate
interests here were somewhat diminished where the voters of Markham were fully apprised of
defendant’s felony conviction, he offers nothing to counter Hofer’s finding that municipal
officers are subject to less oversight while in office than constitutional officers. The State still
has an important interest in protecting the integrity of elective municipal offices and may do so
by enacting legislation that prohibits convicted felons from holding such offices.
¶ 46 We also find instructive our supreme court’s decisions in Bryant v. Board of Election
Commissioners of the City of Chicago, 224 Ill. 2d 473 (2007) (per curiam), and Delgado v.
Board of Election Commissioners of the City of Chicago, 224 Ill. 2d 481 (2007) (per curiam).
In those cases, candidates with felony convictions filed nomination petitions for election as
aldermen in Chicago. Bryant, 224 Ill. 2d at 474; Delgado, 224 Ill. 2d at 482. Objectors
challenged the nomination petitions, arguing that section 3.1-10-5 of the Municipal Code
barred the candidates from holding municipal office. Bryant, 224 Ill. 2d at 475; Delgado, 224
Ill. 2d at 484. The electoral board declared section 3.1-10-5 unconstitutional (Bryant, 224 Ill.
2d at 475; Delgado, 224 Ill. 2d at 484), and the Cook County circuit court affirmed (Bryant,
224 Ill. 2d at 473; Delgado, 224 Ill. 2d at 481). Objectors filed direct appeals to the supreme
court. The supreme court observed that the electoral board had no authority to declare section
3.1-10-5 unconstitutional and explained that, on that basis, the circuit court should have
declared the electoral board decision to be void. Bryant, 224 Ill. 2d at 476-77; Delgado, 224 Ill.
2d at 485-86. Additionally, the supreme court observed that the circuit court was bound to
follow the decision in Hofer, which had rejected similar equal protection challenges to section
3.1-10-5, and therefore the circuit court had no proper basis for finding equal protection
violations. Bryant, 224 Ill. 2d at 478-79; Delgado, 224 Ill. 2d at 487-88. The supreme court
dismissed the direct appeals and entered supervisory orders directing the circuit court to vacate
the electoral board’s decisions and declare the candidates ineligible for municipal office under
section 3.1-10-5 of the Municipal Code. Bryant, 224 Ill. 2d at 479-80; Delgado, 224 Ill. 2d at
489. Our supreme court’s recognition of Hofer lends additional credibility to Hofer’s finding
that the State has an important interest in protecting the integrity of elective municipal offices
by declaring convicted felons ineligible to hold elective municipal office.
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¶ 47 Here, we find that defendant’s equal protection claims must fail because there is a rational
relationship between section 29-15 of the Election Code and the State’s interest in protecting
the integrity of elective municipal offices.
¶ 48 E. Free Speech
¶ 49 Finally, defendant contends that the Conviction Statutes violate his and the voters of
Markham’s rights to free speech under the first amendment to the federal constitution and
article I, section 4 of the Illinois Constitution. He argues that the Conviction Statues operate “to
deny [him] ballot access and his *** rights to freely associate with potential voters *** for the
purposes of advancing ideas and political expression.” Defendant characterizes the application
of the Conviction Statutes as an “ ‘after the fact’ attempt to freeze [his] ability to participate in
municipal politics.” Defendant relies primarily on Lee v. Keith, 463 F.3d 763 (7th Cir. 2006),
Krislov v. Rednour, 226 F.3d 851 (7th Cir. 2000), and Dempsey v. Johnson, 2016 IL App (1st)
153377, in support of his arguments.
¶ 50 Defendant’s free speech arguments are poorly developed, and he cites no authority to
support his contention that the Conviction Statutes act as a “hurdle” to his exercise of his right
to engage in political association. Instead, he relies on cases involving procedural requirements
for getting on the ballot. See Lee, 463 F.3d at 772 (finding that the combined effect of filing
deadlines and signature requirements for independent general assembly candidates severely
burdened the candidates’ rights to access the ballot); see also Krislov, 226 F.3d at 862 (finding
that an Illinois law requiring signature gatherers to be registered voters and to be registered in
the political subdivision violated the first amendment because it made it more difficult for the
candidates to disseminate their political views, associate with prospective solicitors for the
purpose of eliciting political change, gain access to the ballot, and utilize endorsements of their
candidacy).
¶ 51 Here, defendant’s challenge to the Conviction Statutes bears no resemblance to the ballot
access barriers addressed in Lee and Krislov. Those cases involve state statutes regulating the
manner in which a candidate seeks a place on the ballot, but did not involve an examination of
whether a state law affecting a candidate’s eligibility to hold an elective municipal office
implicates the right to free association.
¶ 52 Defendant’s reliance on Dempsey is similarly misplaced. He relies on Dempsey for the
principle that signature gathering, associating as an independent candidate, and engaging in
political activity by running for public office are constitutionally protected activities.
Dempsey, 2016 IL App (1st) 153377, ¶ 19. But Dempsey had nothing to do with candidate
eligibility, and instead involved a first amendment retaliation claim. There, the plaintiff was an
independent candidate for the office of the village president, and alleged that the defendant
village clerk assisted the plaintiff’s opponent in formulating a challenge to the plaintiff’s
candidacy. Id. ¶¶ 2-3. That challenge came before an electoral board—on which the defendant
sat—and the plaintiff’s name was removed from the ballot. Id. ¶ 4. The circuit court, however,
reversed the electoral board and reinstated the plaintiff’s name to the ballot. Id. ¶ 5. The night
before the election, the defendant allegedly disseminated a prerecorded message—in which
she identified herself as the village clerk—to all of the registered voters in the village, falsely
stating that the plaintiff was not a legitimate candidate, that she had been officially removed
from the ballot, and that any votes cast in her favor would be a lost vote. Id. ¶ 6. The plaintiff
lost the election and sued the defendant, asserting that the defendant deprived the plaintiff of
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her right to freedom of association by retaliating against the plaintiff due to her political
affiliation. Id. ¶¶ 6-7. We reversed the circuit court’s section 2-615 dismissal of the plaintiff’s
retaliation claim, finding in part that the plaintiff had sufficiently alleged that she was engaged
in freedom of association activities by associating as an independent candidate and running for
public office. Id. ¶¶ 18-19.
¶ 53 Here, defendant makes no effort to analogize his situation to Lee, Krislov, or Dempsey. He
simply advances our statement in Dempsey that signature gathering, associating as an
independent candidate, and engaging in political activity by running for public office are
constitutionally protected activities, and he relies on federal cases involving procedural ballot
access issues to make the sweeping claim that barring convicted felons from holding municipal
office impairs their right to free association. This undeveloped argument does not persuade us
that defendant has met his burden to clearly show that the application of the Conviction
Statutes “as applied” to him unconstitutionally impairs his right to freely associate. See People
v. Wilson, 214 Ill. 2d 394, 398-99 (2005) (“All statutes are presumed to be constitutional, and
the burden of rebutting that presumption is on the party challenging the validity of the statute to
demonstrate clearly a constitutional violation.”). We therefore reject defendant’s argument that
the Conviction Statutes infringe on his constitutional right to free association.
¶ 54 CONCLUSION
¶ 55 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 56 Affirmed.
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