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People v. Agpawa

Court of Appeals of Illinois, First District, First Division

March 30, 2018

THE PEOPLE OF THE STATE OF ILLINOIS, by 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.

          Appeal from the Circuit Court of Cook County No. 17 CH 5276 The Honorable David B. Atkins, Judge Presiding.

          PRESIDING JUSTICE PIERCE delivered the judgment of the court, with opinion. Justices Harris and Mikva concurred in the judgment and opinion.

          OPINION

          PIERCE PRESIDING JUSTICE

         ¶ 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 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 3.1-10-5 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 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, 2014 IL App (1st) 123419, ¶ 16. Where the parties file cross-motions for judgment on the pleadings, they generally acknowledge that there are no questions of fact and that the issues involved are questions of law. See Zipf v. Allstate Insurance Co., 54 Ill.App.3d 103, 108 (1977). We review a circuit court's order granting judgment on the pleadings de novo. Trujillo, 2014 IL App (1st) 123419, ¶ 16.

         ¶ 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." Id. § 5-5-5(b).

         ¶ 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, " ...


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