APPEAL from the Circuit Court of Lake County; the Hon. JOHN R.
HUGHES, Judge, presiding.
MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
In this appeal we consider whether the failure of the legislature to provide for the restoration of eligibility of one convicted of an infamous crime to hold a non-constitutional office after the completion of sentence, while restoring eligibility to hold an office created by the constitution, is a violation of the equal protection clause of the fourteenth amendment to the United States Constitution.
On March 26, 1976, plaintiff Donald R. Coles was convicted of extortion in violation of 18 U.S.C. § 1951 (1976) in the United States District Court for the Northern District of Illinois and was sentenced to probation for a period of three years. At the time of his conviction Coles was a supervisor of Lake Villa Township in Lake County and his office was declared vacant by reason of the conviction. On June 23, 1976, however, while still serving his Federal sentence, Coles was appointed by the Lake Villa Town Board of Auditors to serve his own unexpired term as supervisor. The Lake County State's Attorney thereupon instituted a quo warrantor proceeding against him in the circuit court, and on February 10, 1977, a judgment of ouster was entered removing him from office. Subsequently, on April 5, 1977, an election was held, and Coles was elected township supervisor. The State's Attorney again brought quo warrantor, and on May 4, 1977, a second order of ouster was entered against Coles. This court in a consolidated opinion affirmed both orders in People ex rel. Ryan v. Coles (1978), 64 Ill. App.3d 807, 381 N.E.2d 990.
Coles was released from probation by the Federal district court on November 17, 1978, and thereby completed his sentence. He requested an opinion from the Lake County State's Attorney as to whether he could now hold office as township supervisor and was advised that he remained ineligible to hold public office. Coles then commenced the present action for declaratory judgment in the circuit court on July 5, 1979, seeking declaration that he was eligible to hold public office as he had completed his sentence. In reliance on our earlier opinion, the trial court granted defendant's motion to dismiss this action on December 20, 1979, and Cole appeals.
Consideration of the constitutional and statutory provisions governing the effect of a criminal conviction on one's qualifications to hold a public office is necessary to evaluate plaintiff's present contention he is being denied equal protection of the law.
Under article XIII, section 1 of the Constitution of 1970, persons convicted of certain offenses are ineligible to hold constitutional office:
"A person convicted of a felony, bribery, perjury or other infamous crimes shall be ineligible to hold an office created by this Constitution. Eligibility may be restored as provided by law."
By section 29-15 of the Election Code (Ill. Rev. Stat. 1977, ch. 46, par. 29-15), the legislature has provided for restoration of eligibility to hold office in these terms:
"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."
Sections 5-5-5(a), (b) and (c) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par 1005-5-5(a), (b) and (c)) also refer to the effect of a conviction upon a person's qualification to hold office:
"(a) Conviction and disposition shall not entail the loss by the defendant of any civil rights, except under this Section.
(b) 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.
(c) A person sentenced to imprisonment shall lose his right to vote until released from imprisonment." (Emphasis added.)
In our earlier opinion we held *fn1 that the office of township supervisor is not an office created by the constitution, but rather is a creation of legislative enactment (People ex rel. Ryan v. Coles (1978), 64 Ill. App.3d 807, 811, 381 N.E.2d 990, 993; see Ill. Const. 1970, art. VII, § 5; Ill. Rev. Stat. 1975, ch. 139, par. 60). It is apparent, therefore, neither article XIII, section 1 of the 1970 constitution, nor section 5-5-5(b) of the Unified Code of Corrections, operates to disqualify plaintiff from now holding office or to restore his eligibility for such office. Coles' conviction under 18 U.S.C. § 1951 (1976) for an "infamous crime" (People ex rel. Ryan v. Coles), however, disqualifies him ...