Walker v. Barron

• Court: Appellate Court of Illinois
• Writing for the Court: JUSTICE PIERCE delivered the judgment of the court, with opinion.
• Citation: Walker v. Barron, 2021 IL App (1st) 210080, 172 N.E.3d 255, 446 Ill.Dec. 947 (Ill. App. 2021)
• Decision Date: 22 April 2021
• Docket Number: No. 1-21-0080,1-21-0080
• Parties: David WALKER, Sr.; Robert J. Depolo; and Marina I. Pangopoulos, Petitioners-Appellants, v. William BARRON, Rondal Jones, and Thomas Jaconetty, in Their Official Capacities as Members of the Markham Municipal Officers Electoral Board; Roger Agpawa; and Karen Yarbrough, in her capacity as the Cook County Clerk, Respondents-Appellees.

2021 IL App (1st) 210080

172 N.E.3d 255

446 Ill.Dec. 947

David WALKER, Sr.; Robert J. Depolo; and Marina I. Pangopoulos, Petitioners-Appellants,

v.William BARRON, Rondal Jones, and Thomas Jaconetty, in Their Official Capacities as Members of the Markham Municipal Officers Electoral Board; Roger Agpawa; and Karen Yarbrough, in her capacity as the Cook County Clerk, Respondents-Appellees.

No. 1-21-0080

Appellate Court of Illinois, First District, FIRST DIVISION.

April 22, 2021

Andrew Finko, of Chicago, for appellants.

Stephen M. Laduzinsky and Natalie K. Wilkins, of Laduzinsky & Associates, P.C., of Chicago, for appellee Roger Agpawa.

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

JUSTICE PIERCE delivered the judgment of the court, with opinion.

¶ 1 Petitioners, David Walker Sr., Robert J. Depolo, and Marina I. Pangopoulos, appeal from the circuit court of Cook County's order affirming a decision of the Markham Municipal Officers Electoral Board (Board), finding that respondent, Roger Agpawa, is a duly qualified candidate for the office of mayor of the City of Markham. For the reasons that follow, we reverse the circuit court's judgment that affirmed the Board's decision, and we reverse the Board's decision. We find that Agpawa is not eligible to seek or hold municipal office in Illinois.

¶ 2 I. BACKGROUND

¶ 3 In 2018, Agpawa was elected mayor of the City of Markham, despite being ineligible to hold that office due to a 1999 federal felony conviction for mail fraud, an infamous crime. He was barred from taking the oath of office by a quo warranto judgment entered by the circuit court. On appeal, we affirmed ( People ex rel. Foxx v. Agpawa , 2018 IL (App) 1st 171976, ¶ 1, 423 Ill.Dec. 438, 105 N.E.3d 846 ), and filed our mandate in the circuit court on June 14, 2018. Subsequently, then-governor Bruce Rauner issued a document purporting to restore Agpawa's "rights." See Infra ¶ 46. (The document has no title. Agpawa refers to the document as a "certificate of restoration of rights." For convenience, we will refer to the document as "the governor's certificate.") On September 25, 2018, Agpawa was sworn in as mayor of the City of Markham.¹ That same day, he filed an emergency motion to vacate the circuit court's judgment barring him from taking the oath of office.² On September 28, 2018, the circuit court vacated its quo warranto judgment. Infra ¶ 47. In its written order, the circuit court found "that, by virtue of a Restoration of Rights issued by the governor of the State of Illinois, *** Agpawa's 1999 federal conviction for mail fraud no longer renders him ineligible to hold municipal office in Illinois." No appeal was taken from the circuit court's order vacating the earlier quo warranto judgment.

¶ 4 In 2020, Agpawa filed nomination papers seeking reelection as mayor. Petitioners objected to Agpawa's nomination papers on the grounds that Agpawa was not a duly qualified candidate pursuant to section 29-15 of the Election Code ( 10 ILCS 5/29-15 (West 2018) ) and section 3.1-10-5(b) of the Illinois Municipal Code ( 65 ILCS 5/3.1-10-5(b) (West 2018)) due to his federal felony conviction for an infamous crime. They asserted that Agpawa had not received a pardon from the President of the United States and that the governor of Illinois's pardon power does not extend to pardoning federal convictions. The petition further requested that Agpawa "and aligned officers" recuse themselves from any Board proceedings on their petition, and requested that the Board's legal counsel, the Odelson & Sterk law firm, "be recused from advising the Electoral Board, due to their conflicts of interest," namely that Odelson & Sterk attorneys represented Agpawa in the circuit and appellate court proceedings in Agpawa , 2018 IL App (1st) 171976, 423 Ill.Dec. 438, 105 N.E.3d 846, and in his efforts to obtain the governor's certificate.

¶ 5 Thomas Jaconetty was appointed as a public member of the Board because the Markham City Clerk, Jennifer Coles, had also filed nomination papers for the office of mayor of the City of Markham. Petitioners filed a motion to recuse respondents, William Barron and Rondal Jones, and the Board's attorneys, the Odelson & Sterk law firm. The motion asserted that Barron was Agpawa's "walk-the-streets supporter," and that Barron, Jones, and Odelson & Sterk were all financial donors to Agpawa's political action committee. Petitioners’ motion also sought recusal of Odelson & Sterk due to its representation of Agpawa "privately and in relation to confidential communications with former Gov[ernor] Rauner to broker a deal" for Agpawa. The motion further asserted that Odelson & Sterk had a financial interest in Agpawa remaining on the ballot because the firm "is generating revenue from the municipal representation, which would be terminated if Agpawa was removed. [Odelson &] Sterk is financially motivated to maintain that revenue stream, and could be biased in its directions provided to the electoral board." Ultimately, the parties filed cross-motions for summary judgment on the petitioners’ objections.

¶ 6 On December 14, 2020, the Board denied petitioners’ recusal motion. After hearing argument, the Board voted to grant Agpawa's motion for summary judgment and denied the petitioners’ objections. In its written decision, the Board found that petitioners’ motion to recuse Barron, Jones, and Odelson & Sterk was without merit because neither Barron nor Jones were running for the same office as Agpawa, neither had any pecuniary interest in the outcome, they were not required to serve as witnesses at the hearing, and they were not in a position of having to judge their own credibility. The Board also noted that petitioners failed to timely raise their recusal motion because the motion was made before the Board and not before the circuit court under Cook County General Order 21 (see Cook County Cir. Ct. G.O. 21 (Feb. 1, 2005)) and any allegations of political bias were insufficient to force recusal. As for Odelson & Sterk, the Board observed that the Board was entitled to its choice of counsel, none of the firm's attorneys were on the Board or had a vote on the objection, there was no statutory basis for removal of the Board's counsel, none of the Board's counsel's recommendations were binding on the Board, and the firm's representation of Agpawa ended when he was elected mayor. The Board accused petitioners’ counsel of attempting to "manufacture an artificial conflict" by attempting to call two Odelson & Sterk attorneys as witnesses. The Board found that "[i]t is clear that the purpose of the Motion [to Recuse] and, in particular, the request to disqualify the law firm, is frivolous and is purely for the purposes of harassment and potentially engineering a tactical advantage."

¶ 7 The Board then turned its focus to petitioners’ objection to Agpawa's qualifications. The Board found that it did not have the authority to rule on the question of whether the governor exceeded his authority by issuing the governor's certificate. The Board observed that the "Circuit Court of Cook County (with the mandate returned to enforce or otherwise address its original order and judgment) vacated its original order" barring Agpawa from taking the oath of office and found that he was no longer ineligible to hold office, and that order had not been challenged since its entry. The Board found, "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."

¶ 8 Petitioners sought administrative review in the circuit court. After conducting a de novo review, the circuit court affirmed the Board's decision. Petitioners filed a timely notice of appeal in this court.

¶ 9 II. ANALYSIS

¶ 10 On appeal, petitioners contend that Agpawa is not a duly qualified candidate for the office of Mayor of the City of Markham. They also assert that the Board violated their due process rights by denying the motion to recuse Barron, Jones, and Odelson & Sterk, and that the Board should not have been permitted to participate in this administrative review action in the circuit court because the Board was not named as a respondent and, relatedly, its participation in the circuit court proceedings violated the Open Meetings Act ( 5 ILCS 120/1 et seq. (West 2018)).

¶ 11 At the outset, we recognize that petitioners’ challenge below was to whether Agpawa's name could appear on the ballot for the 2021 primary and consolidated election, and that the election has already occurred. Petitioners’ challenge is therefore moot, as we can longer affect whether Agpawa's name will appear on the ballot. We find, however, that we may still consider petitioners’ appeal under the public interest exception to the mootness doctrine, given the significant interests involved in allowing only qualified candidates to hold municipal office.

¶ 12 The criteria for applying the public interest exception are "(1) the question presented is of a public nature; (2) an authoritative determination of the question is desirable for the future guidance of public officers; and (3) the question is likely to recur." In re Shelby R. , 2013 IL 114994, ¶ 16, 374 Ill.Dec. 493, 995 N.E.2d 990. Here, the question of whether the governor may restore the eligibility to seek and hold municipal office that was lost by virtue of a federal felony conviction for an infamous crime is undoubtedly a question of a public nature. The question has not been addressed under the current constitution and legislative scheme, and thus an authoritative determination is desirable. Finally, the question is likely to recur. While we are not aware of any other candidates seeking municipal office with convictions for infamous federal felony crimes, the Cook County State's Attorney previously sought to bar Agpawa from taking the oath of office due to his ineligibility for...