THE PEOPLE OF THE STATE OF ILLINOIS ex rel. KIMBERLY 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.
No. 1-17-1976
Appellate Court of Illinois, First District, First Division
March 30, 2018
2018 IL App (1st) 171976
Hon. David B. Atkins, Judge, presiding.
Illinois Official Reports; Decision Under Review: Appeal from the Circuit Court of Cook County, No. 17-CH-5276; Judgment: Affirmed.
Counsel on Appeal
Odelson & Sterk, Ltd., of Evergreen Park (Burton S. Odelson and 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.
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
¶ 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
¶ 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
¶ 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
¶ 11 A motion for judgment on the pleadings pursuant to
¶ 12 I. Statutory Challenges
¶ 13 We first set forth the constitutional and statutory provisions relevant to defendant’s arguments.
¶ 14
¶ 15
¶ 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.
¶ 17
¶ 19 Defendant argues that his right to hold municipal office is a “civil right” that was restored under
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
¶ 21 Defendant acknowledges that this court has rejected similar challenges to
¶ 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
¶ 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
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
¶ 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
¶ 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 “[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 ***.”
¶ 27 Nothing in these federal decisions amounts to a holding that a convicted felon’s restoration of civil rights under
¶ 28 Furthermore, defendant does not advance any argument that
properly found that the plain language of
¶ 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
¶ 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
¶ 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.
¶ 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
¶ 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
“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.
¶ 39 C. Free and Equal Elections
¶ 40 Defendant does not advance any argument in support of his nominal contention that the Conviction Statutes violate
¶ 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 (
¶ 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
“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’s2 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
but rejected his facial challenge to
¶ 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
¶ 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
¶ 47 Here, we find that defendant’s equal protection claims must fail because there is a rational relationship between
¶ 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
¶ 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
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
¶ 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.
CONCLUSION
¶ 55 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 56 Affirmed.