Walker v. Agpawa

• Decision Date: 26 August 2021
• Docket Number: Docket No. 127206
• Citation: 2021 IL 127206,183 N.E.3d 800,451 Ill.Dec. 343
• Parties: David WALKER Sr. et al., Appellees, v. Roger AGPAWA, Appellant.
• Court: Illinois Supreme Court

2021 IL 127206

183 N.E.3d 800

451 Ill.Dec. 343

David WALKER Sr. et al., Appellees,

v.Roger AGPAWA, Appellant.

Docket No. 127206

Supreme Court of Illinois.

Opinion filed August 26, 2021.

Steven M. Laduzinsky and Natalie K. Wilkins, of Laduzinsky & Associates, P.C., of Chicago, for appellant.

Andrew Finko, of Chicago, for appelleesDavid Walker Sr., Robert J. DePolo, and Marina I. Pangopoulos.

Burton S. Odelson, John B. Murphey, and Ross D. Secler, of Odelson, Sterk, Murphey, Frazier & McGrath, Ltd., of Evergreen Park, for other appellees.

JUSTICE THEISdelivered the judgment of the court, with opinion.

¶ 1 The central issue in this case is whether the appellate court erred in holding that Roger Agpawa was not a qualified candidate for mayor of the City of Markham due to a 1999 federal felony mail fraud conviction, even though he obtained a document purporting to restore his citizenship rights from then-Governor Bruce Rauner in 2018.

¶ 2 For the following reasons, we reverse the judgment of the appellate court.

¶ 3 BACKGROUND

¶ 4 In 1999, Agpawa pleaded guilty to one count of federal felony mail fraud.

According to a postal inspector's memorandum memorializing plea negotiations between Agpawa and an assistant United States Attorney, beginning in 1991 Agpawa engaged in a scheme to defraud an insurance company while he was Markham Fire Department chief.He was sentenced to three years' probation and ordered to perform 200 hours of community service and to pay $60,907 in restitution.In 2002, he completed the terms of his sentence.

¶ 5 Nearly 15 years later, Agpawa filed papers to run for mayor of the City of Markham in the April 4, 2017, consolidated election.There were no preelection challenges to Agpawa's nominating petitions, but his candidacy caught the attention of Cook County State's AttorneyKimberly Foxx.On March 23, 2017, Foxx sent a letter to Agpawa stating that he was ineligible to serve as mayor and, if elected, ineligible to take the oath of office because of his felony conviction.Agpawa won the election.

¶ 6 On April 24, 2017, Foxx filed a quo warranto complaint, alleging that Agpawa was ineligible to become mayor of Markham pursuant to section 3.1-10-5(b) of the Illinois Municipal Code( 65 ILCS 5/3.1-10-5(b)(West 2016)).Foxx further alleged that Agpawa had been convicted of an "infamous crime" and, consequently, was prohibited from holding municipal office, unless he received a pardon for his crime, under section 29-15 of the Election Code. 10 ILCS 5/29-15(West 2018).Foxx noted that Agpawa never received a presidential pardon.In response, Agpawa asserted that his civil rights, including the right to hold municipal office, remained intact under section 5-5-5 of the Unified Code of Corrections.730 ILCS 5/5-5-5(West 2016).He further asserted that section 3.1-10-5(b) of the Municipal Codeandsection 29-15 of the Election Code together violated the free speech and due process provisions of the United States and Illinois Constitutions ( U.S. Const., amends. I, XIV ;Ill. Const. 1970, art I, §§ 2, 4 ).

¶ 7 On August 9, 2017, the trial court granted judgment on the pleadings to Foxx, barring Agpawa from becoming mayor.He appealed.The appellate court affirmed the trial court's decision.People ex rel. Foxx v. Agpawa , 2018 IL App (1st) 171976, 423 Ill.Dec. 438, 105 N.E.3d 846.Agpawa then sought relief from then-Governor Bruce Rauner.On September 14, 2018, Rauner issued an untitled document on his official letterhead, which read:

"Whereas, ROGER AGPAWA was convicted of the crime of Mail Fraud, Case: 1997 CR 820-2 in the Northern District of Illinois Federal Court and sentenced December 22, 1999 to 36 Months['] Probation and 200 hours[’] community service.

Whereas, it has been represented to me that ROGER AGPAWA is a fit and proper subject for Restoration of Rights of Citizenship.

Now, Know Ye, that I, BRUCE RAUNER, Governor of the State of Illinois, by virtue of the authority vested in me by the Constitution of the State, do by these presents:

RESTORATION OF RIGHTS OF CITIZENSHIP

ROGER AGPAWA

Of the said crime of which convicted, and ROGER AGPAWA is hereby discharged of and from all further hindrance and restored to all rights of citizenship which may have been forfeited under Illinois law as a result of the federal conviction.All rights under federal law which were forfeited as a result of this conviction are unaffected by this action.

Grant Restoration of Rights, Excluding the Right to Ship, Transport, Possess or Receive Firearms Which Were Forfeited by the Conviction."

See2021 IL App (1st) 210080, ¶ 46, 446 Ill.Dec. 947, 172 N.E.3d 255.

¶ 8 The document was filed by the Secretary of State's index department on September 25, 2018.On that date, Agpawa took the oath of office as Markham mayor and filed an emergency motion to vacate the trial court's 2017 judgment.On September 27, an assistant Cook County state's attorney informed Agpawa's attorney that, "based on the Governor's actions, we will have no objection to the emergency motion."The next day, the trial court granted the motion and vacated its earlier order, finding that Agpawa's federal conviction was no longer an impediment to holding municipal office "by virtue of" the Governor's document.Citing People ex rel. Symonds v. Gualano , 124 Ill. App. 2d 208, 260 N.E.2d 284(1970), as well as article V, section 12, of the 1970 Illinois Constitution( Ill. Const. 1970, art. V, § 12 ), the trial court maintained, "It is clear that the Governor has complete authority to grant reprieves from the consequences of criminal convictions to the maximum extent of Illinois law, including Illinois-specific consequences of federal convictions."No appeal was taken from that decision.

¶ 9 In 2020, Agpawa filed papers seeking reelection.David Walker, Robert Depolo, and Marina Pangopolous filed an objection to Agpawa's candidacy, claiming that he was not qualified under section 3.1-10-5(b) of the Municipal Codeandsection 29-15 of the Election Code due to his federal conviction for which he was never pardoned by the president.The objectors and Agpawa filed cross-motions for summary judgment, and the Markham Municipal Officers Electoral Board(Board) granted Agpawa's motion.The Board observed that the objectors' argument raised separation of powers issues between the General Assembly and the governor.The Board concluded that it did not have "the legal authority to pass on any such questions."

¶ 10 Instead, the Board reviewed the governor's pardon powers under both the 1870Constitution and the 1970Constitution.The Board discussed Gualano , which involved a similar restoration of rights by the governor, and characterized the holding in that case as "definitive" and "clearly dispositive."According to the Board, Illinois caselaw "supports the Governor's unlimited power to restore a citizen's civil rights when those rights are lost as a collateral consequence of Illinois law."The Board concluded that the trial court's September 28, 2018, order

"removed the previous disqualification, permitting [Agpawa] to take his oath of office, assume his duties, and continue to serve to this date.That judicial determination—affecting this person's ability to seek and hold this office—is binding upon the Electoral Board.Since the 2018Circuit Court order, neither the State's Attorney, the Attorney General, nor any private voter or taxpayer has attempted to or otherwise sought to challenge the Candidate's eligibility to hold office through a renewed Quo Warranto action or otherwise.*** Furthermore, it would be a legal absurdity if an officeholder and candidate were forced to re-litigate this same issue every election cycle.

The action of the Governor of the State of Illinois, and the order of the Circuit Court of Cook County, end this Electoral Board's inquiry."

¶ 11The objectors sought judicial review, and the trial court confirmed the Board's decision.The objectors appealed, and a divided panel of the appellate court reversed the Board's decision.2021 IL App (1st) 210080, 446 Ill.Dec. 947, 172 N.E.3d 255.The appellate court majority recognized the breadth of the Governor's pardon power but added that this court has never "determined that the Governor may use the pardon power to affect a federal offense, including the collateral consequences that result from a federal conviction."Id.¶ 17.And while the Illinois Constitution grants the pardon power, there is "no constitutional provision that expressly grants the Governor the authority to issue a Governor's certificate to restore rights."Id.¶ 21.In fact, the majority observed that the Governor's document in this case"appears to be modeled on the certificates that were upheld in Gualano and a modified clemency order."Id.¶ 22.The majority then considered that case and disagreed with it:

"We do not believe that the Gualano court's reasoning is consistent with the current constitutional and legislative landscape in Illinois.The Illinois Constitution of 1970 specifically grants the Governor the authority to issue ‘reprieves, commutations, and pardons,’ but nothing in the text or structure of the Illinois Constitution suggests that the Governor has the authority to pardon offenses against the United States or against other states.Nor does the Illinois Constitution contemplate a separate grant of gubernatorial power for the restoration of rights lost due to a qualifying conviction from a sovereign jurisdiction."Id.¶ 26.

¶ 12The appellate court majority compared section 3.1-10-5(b) of the Municipal Code with section 29-15 of the Election Code.While the legislature added a clause for restoring eligibility to hold elected office via a pardon or " ‘otherwise according to law’ " in the latter statute( id.¶ 29(quoting10 ILCS 5/29-15(West 2018) )), the former statute contains no such provision ( id.¶ 28 ).The majority added that, even if those two provisions must be read together, only a pardon for the disqualifying...