People v. Agpawa

2018 IL App (1st) 171976FIRST DIVISION
March 30, 2018
No. 1-17-1976
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS ex rel. ) Appeal from the
KIMBERLY M. FOXX, State’s Attorney of Cook ) Circuit Court of
County, ) Cook County
)
Plaintiff-Appellee, )
)
v. ) No. 17 CH 5276
)
ROGER AGPAWA, in His Official Capacity as Mayor )
of the City of Markham, ) The Honorable
) David B. Atkins,
Defendant-Appellant. ) Judge Presiding.
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.
No. 1-17-1976
¶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, 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 (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 Illinois
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Election Code (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 right 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.
¶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 sections 5-5-5(a) and (b) of the Uniform 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, the 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
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No. 1-17-1976
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.
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¶ 12 I. Statutory Challenges
¶ 13 We first set forth the constitutional and statutory provisions relevant to defendant’s
arguments.
¶ 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
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No. 1-17-1976
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, American Federation of Teachers, AFL-CIO 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 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.”).
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, “Felony 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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¶ 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
Corrections Code 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).
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No. 1-17-1976
¶ 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. 54 (1990)). The supreme court 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) Tully, 171 Ill. 2d at 307. 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
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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 on 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
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No. 1-17-1976
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, “The legislature has the discretion to formulate the character, function, and
duties of school boards,” (East St. Louis, 178 Ill. 2d 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 (citing People ex rel. Taylor v. Camargo School District, 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 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 “armed career criminal,” (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
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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 735 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.” 372 F.3d at 861 (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 to hold licenses to engage in
certain occupations and the right to hold public employment after conviction of certain election-
related offenses.” Id. (citing 730 ILCS 5/5-5-5(b) (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
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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 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
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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
(citing 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.” Bartlow, 2014 IL 115152, ¶ 18. 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
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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.
¶ 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 statutory 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
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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 to 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).
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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. 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
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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, 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 “ensuring public confidence in the honesty and integrity
of those serving in state and local offices.” Id. (citing Hofer, 363 Ill. App. 3d at 723).
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, § 3.
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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)).
¶ 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), and Delgado v. Board of Election
Commissioners of the City of Chicago, 224 Ill. 2d 481 (2007). 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
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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.
¶ 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
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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, to gain access to the ballot, and to 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
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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 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
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No. 1-17-1976
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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