ANITA ALVAREZ, in Her Capacity as Cook County State‘s Attorney, Plaintiff-Appellee, v. KENNETH J. WILLIAMS, in His Capacity as Thornton Township High School District 205 School Board President, Defendant-Appellant.
No. 1-13-3443
Appellate Court of Illinois, First District, Third Division
December 10, 2014
2014 IL App (1st) 133443
Illinois Official Reports
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
The trial court properly granted plaintiff State‘s Attorney summary judgment in a quo warranto action based on the argument that defendant‘s 1985 Indiana felony forgery conviction on an accountability theory constituted an infamous crime under section 29-15 of the Election Code that rendered defendant ineligible to hold the office of a school board member; furthermore, the trial court did not violate defendant‘s due process or equal protection rights, and the fact that the conviction was expunged in Indiana after the trial court entered its order had no effect on the trial court‘s action in the instant case.
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2013-CH-1379; the Hon. Rita Novak, Judge, presiding.
Judgment: Affirmed.
Anita M. Alvarez, State‘s Attorney, of Chicago (Daniel F. Gallagher, Kent S. Ray, and Sisavanh B. Baker, Assistant State‘s Attorneys, of counsel), for appellee.
Panel: JUSTICE LAVIN delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Hyman concurred in the judgment and opinion.
OPINION
¶ 1 This interlocutory appeal arises from the trial court‘s order granting summary judgment in favor of plaintiff Anita Alvarez, in her capacity as Cook County State‘s Attorney, in a quo warranto action, pursuant to section 18-101 of the Code of Civil Procedure (
¶ 2 BACKGROUND
¶ 3 In April 2009, defendant was elected to the Board of Education for Thornton Township High School District 205 (Board) and was subsequently reelected in April 2012, attaining the position of Board president. Prior to defendant‘s reelection to the Board, plaintiff filed a complaint against defendant alleging that a prior conviction (a 1985 Indiana felony forgery conviction on an accountability theory for which he served five years) constituted an infamous crime under section 29-15 of the Election Code (
¶ 4 ANALYSIS
¶ 5 Defendant first contends that the trial court erred in granting summary judgment because he is statutorily qualified to seek and hold public office under the Illinois Election Code (
¶ 6 The School Code provides that “[a]ll school elections shall be governed by the general election law of the State.”
¶ 7 Under the School Code, a person is eligible to serve as an elected member of a board of education if: (1) he or she is a United States citizen; (2) is over the age of 18; (3) has been a resident in the district for at least one year immediately preceding the election; (4) is a registered voter; (5) is not a trustee; and (6) is not a child sex offender as defined by the Illinois Criminal Code of 2012 (
“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.”
10 ILCS 5/29-15 (West 2012).
¶ 8 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.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 38, ¶ 124-1 (repealed by Pub. Act 84-1047, § 2 (eff. July 1, 1986)).
¶ 9 We must first construe the applicable statutes in order to determine whether defendant is entitled to continue in his office as a matter of statutory right. A reviewing court‘s primary objective in performing statutory construction is to give effect to the legislature‘s intent. In re Application of the County Treasurer & ex officio County Collector, 2013 IL App (1st) 130103, ¶ 9. The best indication of legislative intent is the statutory language, given its plain and ordinary meaning. Id. Reviewing courts should consider a statute in its entirety, keeping in mind the subject it addresses and the legislature‘s apparent objective in enacting it, and avoiding constructions that would render any term meaningless or superfluous. Fisher v. Waldrop, 221 Ill. 2d 102, 112 (2006). Furthermore, reviewing courts have a duty to construe a statute in a manner that upholds its validity and constitutionality. Id.
¶ 10 When read in their entirety, the provisions of the Election Code and School Code at issue establish an intent by the legislature to prevent individuals convicted of infamous crimes from holding offices of honor, trust and profit without an official pardon or restoration of rights. Although defendant contends that the repeal of section 124-1 of the Code of Criminal Procedure renders section 29-15 of the Election Code immaterial, we disagree. According to the principles of statutory construction, it is well settled that statutes which adopt by specific reference provisions of other statutes are not affected by a subsequent amendment or repeal of the incorporated statute. See Town of Libertyville v. Continental Illinois National Bank & Trust Co. of Chicago, 187 Ill. App. 3d 84, 90 (1989). Thus, the repeal of section 124-1 of the Code of Criminal Procedure does not change the classifications for an “infamous crime” in section 29-15 of the Election Code. Furthermore, “[a] felony is infamous when it is inconsistent with commonly accepted principles of honesty and decency, or involves moral turpitude,” and defendant‘s conviction of forgery certainly offends this principle. People ex rel. City of Kankakee v. Morris, 126 Ill. App. 3d 722, 726 (1984). Moreover, courts 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.” See Pappas v. Calumet City Municipal Officers’ Electoral Board, 288 Ill. App. 3d 787, 789 (1997); see also Parker v. Lyons, 757 F.3d 701, 704-07 (7th Cir. 2014).
¶ 11 Defendant also contends that by amending the eligibility requirements of the School Code in 2003 to exclude “child sex offender[s]” from holding office, the legislature demonstrated its intent to limit the ineligibility of convicted felons to this sole offense. See
¶ 12 Upon our reading of the School Code in its entirety, we find no indication that the legislature intended to disregard any of the above happenings for vacancies, namely, a conviction for an infamous crime, let alone a conviction for a violent crime against a child. Furthermore, we find defendant‘s contention that a vacancy is only triggered when an individual commits one of the above offenses while physically in office misplaced. Clearly, as discussed above, the legislature intended to keep individuals convicted of infamous crimes from ever holding office in the first place. Defendant cites no authority to support this contention and we need not consider this matter further. See Ill. S. Ct. R. 341(h) (eff. Feb. 6, 2013) (an appellant‘s brief shall contain the contentions of the appellant and the reasons therefor with citation to authority).
¶ 13 Additionally, although defendant contends that section 124-1 of the Code of Criminal Procedure does not specifically identify “aiding and abetting” forgery as an infamous crime, we still believe the legislature intended to incorporate such a conviction under the accountability theory. Under Illinois law, a person is accountable for the acts of another when, before or during the commission of the offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid the other person in the planning or commission of the offense. See People v. Rodriguez, 229 Ill. 2d 285, 289 (2008);
¶ 14 Defendant next contends that his due process rights were violated because the term “infamous crime” is vague and therefore violates the due process clause of the United States
¶ 15 As mentioned in detail above, the plain language of section 124-1 of the Criminal Code clearly defines the specific crimes the legislature deems infamous. The term “infamous crime” is far from archaic and is well established in Illinois case law. See Stinson v. Chicago Board of Election Commissioners, 407 Ill. App. 3d 874, 876 (2011); Morris, 126 Ill. App. 3d at 726; People ex rel. Ryan v. Coles, 64 Ill. App. 3d 807, 810 (1978). Therefore, defendant fails to demonstrate that a person of ordinary intelligence would misinterpret its meaning or that his past conviction prohibited him from holding office. Thus, his due process rights were not violated in this regard.
¶ 16 Relying solely on Coles v. Ryan, 91 Ill. App. 3d 382 (1980), defendant also contends that section 29-15 of the Election Code violates his equal protection rights under the fourteenth amendment of the United States Constitution (
¶ 17 Hence, we find defendant‘s sole reliance on Coles misplaced. In Coles, the Second District examined whether there was a rational basis for the legislature establishing two different means by which a convicted felon was restored to the right to hold office when a convicted felon was ousted from his office of township supervisor. Coles, 91 Ill. App. 3d at 385-86. The Coles court determined that “[p]lacing more burdensome requirements on restoration of eligibility for an office created by the legislature is an arbitrary classification and does not rationally further any legitimate State interest.” Id. at 386. In reaching that decision, however, the court specifically noted that the State‘s Attorney argued generally that the subject was within the province of the legislature and did not suggest a rational basis to support the differing classifications. Id.
¶ 18 Subsequently, in Hofer over 25 years later, the Fifth District addressed this same equal protection question when it examined section 3.1-10-5(b) of the Illinois Municipal Code (
“elected officials make important fiscal and policy decisions which directly impact the residents of the municipality[,] *** the legislature‘s decision to require a convicted felon to present some evidence of rehabilitation beyond the mere service of his sentence in order to regain his eligibility to hold a municipal office is a reasonable means to further the State‘s interest in safeguarding the integrity of and the public trust in municipal government.” Id.
Therefore, this appellate court found a rational basis for the disparity in eligibility requirements.
¶ 19 In the case sub judice, we see no reason why the legislatively created office of a school board member should be given any differential treatment from a municipal office. See Delgado v. Board of Election Commissioners, 224 Ill. 2d 481, 487-88 (2007) (where the supreme court reviewed the Hofer case and applied its holding and reasoning). The same policy concerns apply to school board members. After all, they shape school policy and make financial decisions for the education of our state‘s youth. There is clearly a rational basis for this disparity and defendant‘s equal protection claim fails.
¶ 20 Defendant further fails to establish that his equal protection rights were violated by plaintiff‘s selective prosecution. Selective prosecution requires that the defendant establish that (1) he was singled out for prosecution while other violators similarly situated were not prosecuted; and (2) the decision to prosecute was based on an arbitrary classification, such as race, religion or the exercise of constitutional rights. People v. Fields, 322 Ill. App. 3d 1029, 1032 (2001). Here, defendant fails to set forth facts to demonstrate that plaintiff singled him out when she filed the quo warranto action. Defendant‘s reliance on one electoral case in which plaintiff, as an electoral board member and not as the complaining party, allowed a candidate with prior felony convictions to be on the ballot for a township‘s trustee of schools is not in and of itself enough to establish selective prosecution. See Glaser v. Luster, 13 COEB SD 01 (Cir. Ct. Cook County). Defendant provides us with no additional facts or instances and fails to establish that there was any arbitrary classification. See City of Chicago v. Unit One Corp., 218 Ill. App. 3d 242, 248 (1991) (“[t]o invoke the claim of selective prosecution, the complaining party must prove that the selection was based on some invidious classification“). Thus, we need not consider this matter further.
¶ 21 Furthermore, the record before us fails to establish that the trial court abused its discretion and violated defendant‘s due process rights by limiting discovery. In fact, after defendant filed his cross-motion for summary judgment and his counsel‘s Rule 191(b) affidavit (Ill. S. Ct. R. 191(b) (eff. Jan. 4, 2013)), the trial allowed a hearing on the cross-motions. After the hearing, the trial court determined that there was no issue of material fact and we find nothing in the record suggesting the court ruled improperly on summary judgment at that time. Accordingly, the trial court did not abuse its discretion and violate defendant‘s due process rights. See Fidelity & Casualty Co. of New York v. Mobay Chemical Corp., 252 Ill. App. 3d 992, 1001 (1992) (a trial court has broad discretionary powers relative to discovery matters, orders restricting discovery will only be reversed as an abuse of discretion when such rulings prevent the ascertainment of truth or substantially affect an issue in a case).
¶ 23 CONCLUSION
¶ 24 Based on the foregoing, we affirm the judgment of the circuit court of Cook County.
¶ 25 Affirmed.