People v. Agpawa
People v. Agpawa
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 *849 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 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 3.110-5 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 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 *850 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
,
¶ 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."
¶ 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."
¶ 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
*851 ¶ 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
,
¶ 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
,
¶ 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
,
¶ 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
,
¶ 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, "The legislature has the discretion to formulate the character, function, and duties of school boards," (
East St. Louis
,
¶ 26 Defendant's reliance on
United States v. McKinley
,
¶ 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."
¶ 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
,
¶ 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 *855 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.
,
¶ 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.
¶ 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
,
¶ 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).
¶ 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
,
¶ 43 In
People v. Hofer
,
"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 722,300 Ill.Dec. 202 ,843 N.E.2d 460 .
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,
¶ 44 In
Parker v. Lyons
,
¶ 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 *858 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
,
¶ 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.
*859 ¶ 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 Statutes 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
,
¶ 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
,
¶ 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
,
¶ 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
,
¶ 54 CONCLUSION
¶ 55 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 56 Affirmed.
Justices Harris and Mikva concurred in the judgment and opinion.
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
,
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.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.