Court of Appeals of Illinois, First District, First Division
THE PEOPLE OF THE STATE OF ILLINOIS, by KIMBERLY M. FOXX, State's Attorney of Cook County, Plaintiff-Appellee,
ROGER AGPAWA, in his official capacity as Mayor of the City of Markham, Defendant-Appellant.
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.
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.
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
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
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.
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, " ...