A member of our panel of leading appellate attorneys reviews the Illinois Supreme Court opinion handed down Thursday, August 26. 

Walker v. Agpawa, 2021 IL 127206

By Joanne R. Driscoll, Forde & O’Meara LLP

The issue in this election case was whether an individual convicted of a federal felony, but having obtained a document purporting to restore his citizenship rights from the then-governor of the State, could run for mayor of the City of Markham. In a unanimous opinion, authored by Justice Theis, the court found the candidate qualified and reversed the appellate court.

In 2017, Agpawa filed his papers to run for office; and no objections were raised.  Days before the election, Cook County State's Attorney Kim Foxx notified Agpawa that he was ineligible to run and, after he won the election, filed a quo warranto complaint alleging that Agpawa was ineligible to hold office pursuant to section 3.1-10-5(b) of the Illinois Municipal Code (65 ILCS 5/3.1-10-5(b) (West 2016)), unless he received a pardon for his crime, as provided in section 29-15 of the Election Code (10 ILCS 5/29-15 (West 2018)). The trial court granted judgment on the pleadings to Foxx, and the appellate court affirmed.

Agpawa sought relief from then-Governor Rauner, who issued a document on his official letterhead that purported to restore Agpawa’s rights of citizenship. Agpawa was sworn into office and moved to vacate the trial court’s earlier judgment, which was granted without objection.

In 2020, Agpawa filed papers seeking reelection. Objections were filed on grounds that Agpawa was never pardoned by the president and thus was not qualified under the Municipal Code and the Election Code to run for office. The Markham Municipal Officers Electoral Board (Board) granted Agpawa’s cross motion for summary judgment based on its review of the governor’s pardon powers under both the 1870 Constitution and the 1970 Constitution. Finding People ex rel. Symonds v. Gualano, 124 Ill. App. 2d 208 (1970) definitive on the governor’s unlimited powers to restore a citizen’s civil rights, the Board concluded that it was bound by the governor’s conduct and the trial court’s earlier removal of any impediments to Agpawa’s taking office.

On judicial review, the circuit court affirmed the Board but a divided panel of the appellate court reversed. The majority disagreed with Gualano and found nothing in the Illinois Constitution suggesting that the Governor had authority to pardon offenses against the United States or to restore rights lost due to a qualifying conviction from a sovereign jurisdiction. While the appeal was pending, the Illinois House and Senate passed Senate Bill 825, which, inter alia, amended both section 3.1-10-5(b) of the Municipal Code and section 29-15 of the Election Code.

The court began its analysis by noting that qualification to hold municipal office is governed by statute, not the Illinois Constitution. At the time of the appellate court’s decision, section 29-15 of the Election Code did not allow for the then-Governor’s issuance of the untitled document. The court noted that the legislature amended that section and section 3.1-10-5(b) to include the phrase “restoration of rights by the Governor.” The amendatory Act stated that the changes were “declarative of existing law.” 

Applying the plain language of those sections, the court held that “Governor Rauner’s untitled document restored all of Agpawa’s Illinois rights of citizenship, including the right to hold municipal office, and he was eligible to be mayor of Markham.” The court explained that while the governor has no constitutional authority to pardon a federal conviction, the governor has statutory authority to mitigate the collateral electoral consequences of such a conviction by issuing a restoration of rights.