2021 IL App (1st) 210080
Ill. App. Ct.2021Background
- Roger Agpawa was convicted of federal mail fraud (1999), an "infamous crime," which by statute disqualifies persons from holding municipal office in Illinois.
- In 2018 a quo warranto action barred Agpawa from taking the Markham mayoral oath; this court affirmed that judgment on appeal and the mandate was filed in June 2018.
- Afterward, then‑Governor Rauner issued a document described as a "certificate of restoration of rights," and the Cook County circuit court on September 28, 2018 vacated its earlier quo warranto judgment; no appeal followed that vacatur.
- Agpawa ran for re‑election in 2020; petitioners objected that (a) a governor cannot pardon federal offenses or restore eligibility lost from a federal conviction, and (b) only a presidential pardon (or statutory restoration) could restore eligibility to hold municipal office.
- The Markham Municipal Officers Electoral Board denied recusal requests and ruled Agpawa qualified based on the Governor’s certificate and the circuit court’s vacatur; the circuit court affirmed on administrative review.
- On appeal the First District reversed: it held the governor cannot restore eligibility to hold a statutorily created municipal office when disqualification stems from a federal infamous‑crime conviction; only a pardon for the disqualifying offense (i.e., presidential for a federal crime) or a statutory restoration can do so.
Issues
| Issue | Petitioners' Argument | Agpawa's/Respondents' Argument | Held |
|---|---|---|---|
| Whether the Illinois Governor may restore eligibility to hold municipal office lost because of a federal infamous felony conviction | Governor cannot pardon federal crimes; statutory scheme (Municipal Code §3.1‑10‑5(b) and Election Code §29‑15) requires a pardon or statutory restoration; only a presidential pardon can restore rights lost from a federal conviction | Governor may use clemency/restoration authority to remove state collateral consequences of a federal conviction (relying on People ex rel. Symonds v. Gualano) | Held: Governor lacks authority to eliminate the collateral state disqualification that flows from a federal conviction; only a pardon for the disqualifying offense or a statutory mechanism can restore eligibility to hold a municipal office. |
| Whether the Board could treat the Governor’s certificate and the circuit court’s vacatur as ending its inquiry into Agpawa’s qualifications | Petitioners: the circuit court’s vacatur may be void or entered without jurisdiction; Board should not rely solely on it | Agpawa/Board: the circuit court vacatur and Governor’s certificate resolved eligibility; Board lacked authority to question them | Held: appellate record lacks materials to confirm validity of the vacatur; regardless, under current constitutional/statutory scheme the Governor’s certificate does not restore eligibility—Board erred to accept it as dispositive. |
| Denial of petitioners’ motions to recuse Board members and Board counsel (due process/Open Meetings Act claims) | Petitioners alleged bias, conflicts of interest, and improper participation; requested recusal | Board/Agpawa: motions untimely, speculative, and without statutory basis; Board properly chose its counsel | Held: Majority did not reach or decide these additional claims on the merits because it disposed of the case on the eligibility question; the Board had denied the recusal motions below. |
Key Cases Cited
- People ex rel. Madigan v. Snyder, 208 Ill. 2d 457 (2004) (describing breadth of gubernatorial reprieve/commutation/pardon power and types of clemency)
- Nixon v. United States, 506 U.S. 224 (1993) (pardon is an executive action that mitigates or sets aside punishment)
- People v. Morris, 219 Ill. 2d 373 (2006) (interpretation of clemency and its effects)
- Price v. Philip Morris, Inc., 2015 IL 117687 (2015) (limits on a trial court vacating or altering an appellate judgment; section 2‑1401 context)
- People v. Bailey, 2014 IL 115459 (2014) (doctrine of revestment and conditions for trial court to regain jurisdiction)
- People ex rel. Symonds v. Gualano, 124 Ill. App. 2d 208 (1970) (earlier Illinois appellate decision permitting gubernatorial restoration of rights under the pre‑1970 statutory scheme)
- Pappas v. Calumet City Municipal Officers’ Electoral Bd., 288 Ill. App. 3d 787 (1997) (legislature chose not to include a restorative clause in Municipal Code §3.1‑10‑5(b))
- Hofer v. [unnamed], 363 Ill. App. 3d 719 (2006) (legislature sets qualifications for statutorily created municipal offices)