2021 IL App (1st) 210080 

FIRST DIVISION 

April 22, 2021 

No. 1-21-0080 

IN THE 

APPELLATE COURT OF ILLINOIS 

FIRST DISTRICT 

DAVID WALKER, SR.; ROBERT J. DEPOLO; ) 

and MARINA I. PANGOPOULOS, ) 

) 

Petitioners-Appellants, ) Appeal from the 

) Circuit Court of 

v. ) Cook County 

) 

WILLIAM BARRON, RONDAL JONES, and ) No. 20 COEL 30 

THOMAS JACONETTY, in Their Official Capacities as ) 

Members of the Markham Municipal Officers Electoral ) The Honorable 

Board; ROGER AGPAWA; and KAREN ) James R. Carroll, 

YARBROUGH, in her capacity as the Cook County ) Judge Presiding. 

Clerk, ) 

) 

Respondents-Appellees. ) 

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

Justice Coghlan concurred in the judgment and opinion. 

Presiding Justice Walker dissented, with opinion. 

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 
 

 

 

 

 

 

No. 1-21-0080 

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), 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 Illinois Election Code (10 ILCS 5/29-15 (West 2018)) and section 

1

No explanation is offered by the parties as to how Agpawa was lawfully sworn in while a valid 

and enforceable judgment was in effect barring him from taking the oath of office, and before the circuit 

court had any opportunity to reexamine its judgment in light of the Governor’s certificate. 

2

We discuss some our serious issues with this “motion” below. See infra ¶ 13. 

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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, 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. 

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¶ 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, 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 

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No. 1-21-0080 

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. 

¶ 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. Here, the question of whether the Governor may restore the eligibility to seek and 

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No. 1-21-0080 

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 

municipal office, and, if elected, he would remain subject to quo warranto challenges for the 

duration of his term. We find that the public interest exception to the mootness doctrine applies 

and we will therefore decide the merits of petitioners’ appeal. 

¶ 13 As a preliminary matter, we are compelled to address two issues reflected in the record 

related to our decision in Agpawa. First, we address Agpawa’s “motion” to vacate the circuit 

court’s original quo warranto judgment. Neither a copy of Agpawa’s “motion” to vacate nor any 

transcript of any proceedings in the circuit court on the “motion” is contained in the record before 

us. This presents us with a jurisdictional black hole. The circuit court entered its original 

quo warranto judgment declaring Agpawa ineligible for municipal office on August 9, 2017, and 

lost jurisdiction once Agpawa filed a timely notice of appeal to this court. Our mandate in Agpawa, 

2018 IL App (1st) 171976 affirming the circuit court’s judgment was filed in the circuit court on 

June 14, 2018. We did not remand any aspect of the case to the circuit court, therefore the circuit 

court only had jurisdiction to enforce our judgment. Ill. S. Ct. R. 369(b) (eff. July 1, 1982). The 

circuit court’s vacatur of its original September 28, 2018, quo warranto judgment is valid and 

enforceable only if: (1) Agpawa’s “motion” to vacate was a petition pursuant to section 2-1401 of 

the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2018)) collaterally attacking the circuit 

court’s judgment (see Price v. Phillip Morris, Inc., 2015 IL 117687, ¶ 26 (explaining why a section 

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2-1401 petition may be filed in the circuit court even after the circuit court’s judgment has been 

affirmed on appeal)); or (2) the circuit court was revested with jurisdiction. For revestment to 

apply, “both parties must: (1) actively participate in the proceedings; (2) fail to object to the 

untimeliness of the late filing; and (3) assert positions that make the proceedings inconsistent with 

the merits of the prior judgment and support the setting aside of at least part of that judgment. If 

any one of those requirements remains unmet, the doctrine does not revest the court with 

jurisdiction.” (Emphases in original.) People v. Bailey, 2014 IL 115459, ¶ 25. The only evidence 

in the record before us is the circuit court’s September 28, 2018, order, which states that the State 

“does not dispute” that the governor issued the certificate but says nothing about what the State 

said regarding the effect of the certificate. Infra ¶ 47. On this record, we cannot determine whether 

the circuit court had subject-matter jurisdiction when it entered its order vacating its quo warranto 

judgment, or whether the circuit court’s vacatur order is void for lack of subject-matter jurisdiction. 

From what we know, the judgment in Agpawa remains is full force and effect. 

¶ 14 The second issue we address is a statement in Agpawa’s brief related to the circuit court’s 

September 28, 2018, order vacating its original quo warranto judgment. In a footnote, Agpawa’s 

brief asserts “The entry of the September 28, 2018 Order vacated the August 9, 2017 Order and 

rendered the decision in Agpawa, 2018 IL App (1st) 171976 void.” (Emphasis added.) This 

statement was also repeatedly advanced before the Electoral Board by Agpawa in support of his 

eligibility to seek and hold the office of mayor. This is a blatantly incorrect statement and is 

contrary to our supreme court’s precedent that a lower court has no authority to vacate the 

judgment of a court of review. Price, 2015 IL 117687, ¶¶ 30-39. Assuming Agpawa’s “motion” 

was a proper section 2-1401 petition, the circuit court was asked to revisit its own judgment based 

on facts “that were not of record in the original action and that were not considered by the appellate 

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court.” Id. ¶ 26. In other words, Agpawa sought postjudgment relief in the circuit court from the 

circuit court’s quo warranto judgment, relief that the circuit court could grant only if it had proper 

jurisdiction. The circuit court’s order vacating its quo warranto judgment did not purport to vacate 

our judgment in Agpawa, and counsel’s suggestion that our judgment in Agpawa is void is patently 

false. 

¶ 15 Turning to the merits of this case, we first address petitioners’ argument that Agpawa is 

not eligible to seek and hold municipal office. Petitioners argue that the Governor has no authority 

to pardon a federal offense. They contend that section 3.1-10-5(b) of the Municipal Code declares 

that a person with a conviction for an infamous crime is ineligible to hold a municipal office, and 

because Agpawa has a federal felony conviction for an infamous crime, his eligibility to seek and 

hold municipal could only be restored by a presidential pardon, as the Governor of Illinois’s pardon 

power cannot reach federal crimes. The parties agree that a pardon from the President of the United 

States for a federal crime would restore Agpawa’s right to seek and hold municipal office in 

Illinois. See Nixon v. United States, 506 U.S. 224, 232 (1993) (“the granting of a pardon is in no 

sense an overturning of a judgment of conviction by some other tribunal; it is ‘[a]n executive action 

that mitigates or sets aside punishment for a crime.’ ” (Emphasis in original.) (quoting Black’s 

Law Dictionary 1113 (6th ed. 1990))). Agpawa argues, however, that the Governor has the 

authority to restore state rights that are lost as a collateral consequence of a federal conviction. 

Agpawa relies heavily on this court’s decision in People ex rel. Symonds v. Gualano, 124 Ill. App. 

2d 208 (1970), which addressed a similar issue under the Illinois Constitution of 1870 and state 

statutes in effect at that time. We agree with petitioners and disagree with Agpawa. 

¶ 16 Our research does not disclose any decision from our supreme court on the question of 

whether the Governor has the authority to restore eligibility to seek and hold municipal office that 

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was lost because of a federal felony conviction for an infamous crime. Our review of this issue 

requires that we interpret the Illinois Constitution of 1970 and existing statutes, which are 

questions of law that we review de novo. Gregg v. Rauner, 2018 IL 122802, ¶ 23. We must 

ascertain and give effect to the language of the constitution and statutory enactments, given their 

plain and ordinary meanings, and consider the constitutional and statutory provisions in their 

entirety. Hayashi v. Illinois Department of Financial & Professional Regulation, 2014 IL 116023, 

¶ 16. We interpret a clemency order so as to ascertain and give effect to the intent of the Governor. 

People v. Morris, 219 Ill. 2d 373, 384 (2006). 

¶ 17 Agpawa argues that the Governor possesses the authority to restore a person’s eligibility 

to seek and hold municipal office through the Governor’s pardon power. Article V, section 12 of 

the Illinois Constitution of 1970 provides “The Governor may grant reprieves, commutations, and 

pardons, for all offenses on such terms as he thinks proper. The manner of applying therefore may 

be regulated by law.” Ill. Const. 1970, art. V, § 12. The Governor’s pardon power is “extremely 

broad” and limited only by the Governor’s conscience. People ex rel Madigan v. Snyder, 208 Ill. 

2d 457, 473 (2004). Despite the breadth of the pardon power, our supreme court has not, to our 

knowledge, determined that the Governor may use the pardon power to affect a federal offense, 

including the collateral consequences that result from a federal conviction. And while the 

constitution clearly states that the legislature may regulate the process for applying for a pardon, 

this provision “does not in any way restrict the Governor’s power to act.” Id. at 467. 

¶ 18 In People ex rel. Madigan, our supreme court discussed the constitutional authority given 

to the Governor to “grant reprieves, commutations, and pardons” in the context of reviewing the 

grant of clemency to numerous persons previously sentenced to death. 208 Ill. 2d at 473-74. 

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¶ 19 “A pardon is ‘[a]n executive action that mitigates or sets aside punishment for a crime.’ ” 

Id. at 473-47 (quoting Black’s Law Dictionary 1113 (6th ed. 1990)). 

“ ‘[A] pardon may be full or partial, absolute or conditional. A pardon is 

full when it freely and unconditionally absolves the person from all the legal 

consequences of a crime and of the person’s conviction, direct and collateral, 

including the punishment, whether of imprisonment, pecuniary penalty, or 

whatever else the law has provided; it is partial where it remits only a portion of the 

punishment or absolves from only a portion of the legal consequences of the crime. 

A pardon is absolute where it frees the criminal without any condition whatsoever; 

and it is conditional where it does not become operative until the grantee has 

performed some specified act, or where it becomes void when some specified event 

transpires.’ ” Id. at 474 (quoting 67A C.J.S., Pardon & Parole § 2, at 6 (2002)). 

¶ 20 “A commutation is the change of punishment to which a person has been condemned to a 

less severe one. It removes a judicially imposed sentence and replaces it with a lesser, executively 

imposed sentence. Finally, a reprieve is ‘the postponement of the execution of a sentence.’ ” 

(Internal citations omitted.) Id. 

¶ 21 There is, however, no constitutional provision that expressly grants the Governor the 

authority to issue a Governor’s certificate to restore rights. To our knowledge, the supreme court 

has never had occasion to define the phrase “restoration of rights” in the context of a gubernatorial 

action or acknowledge the phrase as part of the Governor’s pardon power. 

¶ 22 Here, Agpawa lobbied the Governor in an attempt to restore his eligibility to seek and hold 

the municipal office of mayor, and he submitted numerous proposals suggesting language that 

specified Agpawa was restored to his right to hold the office of Mayor of the City of Markham. 

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Notably, the Governor did not adopt the language suggested by Agpawa, and the Governor’s 

certificate does not specify which rights were being restored. See infra ¶ 46. The Governor’s 

certificate acknowledged Agpawa’s federal mail fraud conviction and sentence and recited that 

“by the authority vested in me by the Constitution of the State” Agpawa was a “fit and proper 

subject for Restoration of Rights of Citizenship” and “of the said crime of which convicted” is 

“discharged of and from all further hinderance and restored to all rights of citizenship that may 

have been forfeited under Illinois law as a result of the conviction. All rights under federal law 

which were forfeited as a result of this conviction are unaffected by this action.” Infra ¶ 46. The 

Governor’s certificate appears to be modeled on the certificates that were upheld in Gualano and 

a modified clemency order. See Morris, 219 Ill. 2d at 384. 

¶ 23 Agpawa’s relies primarily on Gualano as authority in support of his eligibility to hold 

municipal office. The facts of Gualano are similar to this case. Gualano was decided under the 

Illinois Constitution of 1870 and a statutory provision that has since been repealed. Gualano had 

twice pleaded guilty to federal mail fraud charges. 124 Ill. App. 2d at 210. In 1961, he was elected 

president of the Village of Justice and fended off a quo warranto complaint in the circuit court. Id. 

We reversed the circuit court’s denial of a quo warranto judgment because mail fraud was an 

infamous crime and a state statute barred Gualano from taking the oath of office absent a 

restoration of rights under a pardon. People ex rel. Symonds v. Gualano, 97 Ill. App. 2d 248 (1968). 

After our judgment, Gualano petitioned the Governor for a restoration of rights pursuant to section 

124-2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., 1967, ch. 38, § 124-2 (repealed 

by Pub. Act 78-255, § 61 (eff. Oct. 1, 1973))), which the Governor granted, and Gualano was 

issued certificates restoring him to “all his rights of citizenship.” Gualano,124 Ill. App. 2d at 211. 

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¶ 24 After the restoration of rights issued, the circuit court removed Gualano from office and 

Gualano appealed. Id. The Gualano court reversed, finding that the Governor had the authority to 

restore Gualano’s rights to hold municipal office despite the federal conviction. The parties’ 

arguments focused on two provisions of the Illinois Constitution of 1870: section 4, Article IV, 

which prohibited a person with a conviction for an infamous crime from holding public office, and 

section 13, Article V, which embodied the Governor’s pardon power. Id. at 213-14. Also at issue 

was section 124-2 of the Code of Criminal Procedure of 1963 which provided that persons 

convicted of infamous crimes were barred from holding any office “unless he or she is again 

restored to such right by the terms of a pardon for the offense or otherwise according to law.” Ill. 

Rev. Stat., 1967, ch. 38, § 124-2(a) (repealed by Pub. Act 78-255, § 61 (eff. Oct. 1, 1973)). Section 

124-2 also provided that at “any time after a judgment of conviction is rendered a person convicted 

of an infamous crime may petition the Governor for a restoration of rights. Id. § 124-2(b); 

Gualano, 124 Ill. App. 2d at 213. The Gualano court also looked to other jurisdictions and 

concluded that Gualano’s disqualification to hold municipal office “arises solely from section 4, 

Article IV of the Illinois [C]onstitution [of 1870],” and that the restoration of rights “does not 

affect Gualano’s [f]ederal conviction, but only the consequences which flow, due to the conviction, 

from the Illinois Constitution.” Id. at 214-15. The Gualano court examined the history of the 

Governor’s constitutional pardon power and found that the legislature “did not intend to 

circumscribe its effectiveness by Article IV, section 4 [of the Illinois Constitution of 1870].” Id. at 

220. The Gualano court concluded that the Governor possessed the constitutional authority to 

remove a federally convicted felon’s ineligibility to hold public office. Id. at 222. 

¶ 25 The Gualano court accepted the proposition that, while the Governor has no authority to 

pardon a federal offense, as “a pardon for those crimes could only come from the President of 

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United States” (id. at 214), the Governor’s pardon power includes the authority to remove the 

collateral consequences of a federal offense that arise under state law. To support its reasoning, 

the Gualano court relied on Arnett v. Stumbo, 153 S.W.2d 889 (1941). There, Stumbo was 

convicted of a federal felony and thus was no longer eligible to hold public office under the 

Kentucky Constitution. Id. at 890. The disqualifying constitutional provision provided, however, 

that Stumbo could be restored to such right by executive pardon. Id. There was no dispute that the 

Governor could restore eligibility to hold public office; the issue was whether the Governor’s 

authority extended to those convicted of federal felonies. The Arnett court answered in the 

affirmative, in part because the disqualification arose as a state-imposed collateral consequence 

flowing from the federal conviction, and the Governor was authorized under the Kentucky 

Constitution to restore eligibility to hold public office. Id. at 891. The Gualano court, relying on 

Arnett, found that—despite no analogous Illinois constitutional provision specifically permitting 

the Governor to restore rights—the Governor of Illinois could, under his pardon power, do 

indirectly what he could not do directly and order a restoration of state rights lost as a result of a 

federal conviction, despite lacking the constitutional authority to pardon a federal offense. 

¶ 26 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. 

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¶ 27 The Illinois Constitution of 1970 grants separate powers to the executive, legislative, and 

judicial branches of government. The legislative power is vested in the General Assembly (Ill. 

Const. 1970, art. IV, § 1), which is empowered to enact laws governing the creation of local units 

of government (Ill. Const. 1970, art. VII, § 12). “When a municipal office is created by statute, the 

legislature has the discretionary authority to specify the qualifications required to hold that office 

so long as the qualifications are reasonably related to the specialized demands of the office.” 

People v. Hofer, 363 Ill. App. 3d 719, 723 (2006) (citing East St. Louis Federation of Teachers, 

Local 1220 v. East St. Louis School District No. 189 Financial Oversight Panel, 178 Ill. 2d 399, 

418 (1997); Hoskins v. Walker, 57 Ill. 2d 503, 509 (1974)). 

¶ 28 The legislature has enacted two separate provisions regarding the disqualification of 

persons convicted of infamous crimes from seeking or holding public office in Illinois. Section 

3.1-10-5(b) of the Municipal Code provides: “A person is not eligible to take the oath of office for 

a municipal office if that person *** has been convicted in any court located in the United States 

of any infamous crime, bribery, perjury, or other felony.” 65 ILCS 5/3.1-10-5(b) (West 2018). The 

prohibition in section 3.1-10-5(b) arises solely out of a legislative enactment, as municipal offices 

are created by the legislature. People ex rel Ryan v. Coles, 64 Ill. App. 3d 807, 811 (1978); Hofer, 

363 Ill. App. 3d at 723; Alvarez v. Williams, 2014 IL App (1st) 133443, ¶ 16. There is no provision 

in section 3.1-10-5(b) that restores eligibility for municipal office after conviction for an infamous 

crime. As we have previously found, “[t]he legislature addressed the limitations on eligibility for 

municipal office when amending section 3.1-10-5 of the Municipal Code in 1992. While the 

legislature had the opportunity to add a restoring clause, the legislature failed to do so.” Pappas v. 

Calumet City Municipal Officers’ Electoral Board, 288 Ill. App. 3d 787, 790 (1997). In Agpawa, 

we found that Agpawa’s federal felony conviction for an infamous crime rendered him ineligible 

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to hold municipal office under section 3.1-10-5(b) of the Municipal Code, and that his eligibility 

to seek and hold municipal office was not restored under our legislative scheme. Agpawa, 2018 IL 

App (1st) 171976, ¶¶ 19-29 (explaining that section 5-5-5(a)-(b) of the Unified Code of 

Corrections (730 ILCS 5/5-5-5(a)-(b) (West 2018)) does not restore the right of people convicted 

of infamous crimes to hold municipal office for the purposes of section 29-15 of the Election 

Code). We noted that the legislature amended section 3.1-10-5(b) eight times since our decision 

in Pappas and never added a restoration clause. Id. ¶ 28. Significantly, since our judgment in 

Agpawa, there has been no amendment to section 3.1-10-5(b). While the legislature had numerous 

opportunities to include a restorative provision in section 3.1-10-5(b) of the Municipal Code, it has 

not done so. “[W]here the legislature chooses not to amend terms of a statute after judicial 

construction, it will be presumed that it has acquiesced in the court’s statement of legislative 

intent.” Board of Education of the City of Chicago v. Moore, 2021 IL 125785, ¶ 30. In other words, 

a plain reading of section 3.1-10-5(b) provides that a person convicted of an infamous crime is not 

eligible for election to a municipal office. 

¶ 29 The legislature knows how to restore eligibility to seek and hold elective office. Section 

29-15 of the Election Code provides 

“Any person convicted of an infamous crime as such term is defined in 

Section 124-1 of the Code of Criminal Procedure of 1963, as amended,[ ] shall 

thereafter be prohibited from holding any office of honor, trust, or profit, unless 

such person is again restored to such rights by the terms of a pardon for the offense 

or otherwise according to law.” 10 ILCS 5/29-15 (West 2018).3 

3

Although section 124-1 of the Code of Criminal Procedure of 1963 was repealed, courts 

interpreting section 29-15 of the Election Code still rely on its definition of infamous crime. Agpawa, 2018 

IL App (1st) 191976, ¶ 17 n.1. 

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As we found in Agpawa, section 5-5-5(a)-(b) of the Unified Code of Corrections does not restore 

the right of people convicted of infamous crimes to seek or hold municipal office for the purposes 

of section 29-15 of the Election Code (Agpawa, 2018 IL App (1st) 171976, ¶¶ 19-29), and we are 

not aware of any other state statute that might automatically restore the eligibility of a person 

convicted of an infamous crime to seek or hold municipal office by operation of law or that might 

provide a legislative avenue toward restoration of eligibility to seek and hold municipal office. 

¶ 30 Our supreme court has never opined on whether section 3.1-10-5(b) of the Municipal Code 

and section 29-15 of the Election Code should be read in pari materia such that a person convicted 

of an infamous crime may be restored to their right to hold municipal office by the terms of a 

pardon for the offense.4 However, assuming for the purposes of discussion that section 29-15 of 

the Election Code and section 3.1-10-5(b) of the Municipal Code should be read in pari materia, 

a pardon for a disqualifying offense would restore eligibility to seek and hold a municipal office. 

10 ILCS 5/29-15 (West 2018). A pardon is the only mechanism for restoring the right to seek and 

hold municipal office because our legislature has not enacted any statutory mechanism that would 

give effect to the language “otherwise according to law” in section 29-15 of the Election Code in 

the context of eligibility for municipal office. As the Gualano court observed, Gualano petitioned 

the Governor for a restoration of rights under section 124-2(b) of the Code of Criminal Procedure 

of 1963. Id. at 213 (citing Ill. Rev. Stat., 1967, ch. 38, § 124-2(b)). That statutory provision no 

longer exists, and our legislature has not enacted an analogous statute to restore eligibility for 

4

Our supreme court has indicated that “[the] bar [in section 3.1-10-5(b)] is not necessarily 

permanent. Under the Election Code *** convicted felons may recover their right to run for office through 

‘the terms of a pardon for the offense or otherwise according to law.’ ” Bryant v. Board of Election 

Commissioners of City of Chicago, 224 Ill. 2d 473, 474-75 (2007) (quoting 10 ILCS 5/29-15 (West 2004)); 

see also Delgado v. Board of Election Commissioners, 224 Ill.2d 481, 482-83 (2007) (same). But both 

Bryant and Delgado were supervisory orders and are therefore of no precedential value. Cinkus v. Village 

of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 221 (2008). 

16 
 

 

No. 1-21-0080 

municipal office that was lost due to a federal conviction for an infamous crime. This is significant 

because the legislature reenacted section 124-2(a) of the Code of Criminal Procedure of 1963 in 

section 29-15 of the Election Code. See Coles v. Ryan, 91 Ill. App. 3d 382, 384 n.2 (1980). The 

phrase “otherwise according to law” in section 29-15 of the Election Code does not directly or 

indirectly refer to any existing statutory mechanism providing for the restoration of eligibility to 

seek or hold municipal office. 

¶ 31 The legislature clearly knows how to provide for the restoration of lost rights “otherwise 

according to law”: people convicted of other felonies are eligible to hold constitutionally created 

offices once they complete their sentences (730 ILCS 5/5-5-5(a) (West 2018)), and a person 

convicted of mutilating election materials or of perjury is barred from holding public 

employment—which includes any elected office in Illinois—for five years after the completion of 

their sentence (10 ILCS 5/29-6, 10 (West 2018)), but are then eligible for public employment once 

the specified term ends. Even more, the legislature knows how to provide for the restoration of 

lost rights for specific infamous crimes: perjury was specifically identified as an infamous crime 

under section 124-1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, ¶ 124-

1 (repealed by Pub. Act 84-1047, § 2 (eff. July 1, 1986)), and the legislature specifically provided 

that a perjury conviction only disqualifies a person from holding public office for five years after 

completing their sentence (10 ILCS 5/29-10 (West 2018)). 

¶ 32 Taken together, it is clear that the legislature—the branch of government vested with 

constitutional authority to create municipalities and establish qualifications for holding public 

office—intended to generally treat convictions for infamous crimes differently than other felony 

convictions when it comes to restoring the eligibility to seek or hold public office. The legislature 

could enact a statutory provision that restores eligibility to seek and hold public office to a person 

17 
 

 

 

No. 1-21-0080 

convicted of an infamous crime generally, or of mail fraud specifically, “according to law” through 

a legislative enactment, but it has not, and it did not retain the previous statutory mechanism 

permitting petitions for certificates of restoration of rights in section 124-2(b) of the Code of 

Criminal Procedure of 1963. Therefore, we find that the only mechanism available to a person 

convicted of an infamous crime to regain their eligibility to seek and hold public office is through 

the terms of a pardon for the offense that results in the disqualification. 

¶ 33 Despite the complete absence of any constitutional or statutory authority to restore any 

right lost as a direct or collateral consequence resulting from an infamous federal offense, it 

appears the former Governor took the concept of restoring Agpawa’s eligibility for municipal 

office from the Gualano decision. The Gualano court found the Governor had the authority to 

restore rights lost due to a conviction for a federal infamous crime because an existing statute 

permitted petitions for a restoration of rights. That statute evinced a legislative intent to recognize 

a “restoration of rights” consistent with the legislature’s authority to establish the eligibility 

requirements for municipal office. Our current legislative scheme, however, only recognizes a 

pardon for the disqualifying offense as the sole mechanism to restore eligibility to seek and hold 

municipal office. 10 ILCS 5/29-15 (West 2018); 65 ILCS 5/3.1-10-5(b) (West 2018). 

¶ 34 We presume that our legislature and the drafters of the Illinois Constitution of 1970 were 

aware that the Governor—the head of the executive branch of a sovereign state—has no authority 

to issue pardons for offenses against separate sovereigns. The Governor has the authority to issue 

reprieves, commutations, and pardons for offenses against the State. If Agpawa had an Illinois 

felony conviction for an infamous crime, the Governor could pardon that offense and Agpawa’s 

eligibility to seek and hold municipal office could be restored by “the terms of a pardon for the 

offense,” since it is within the Governor’s power to “absolve[ ] the person from all the legal 

18 
 

 

 

 

No. 1-21-0080 

consequences of a crime and of the person’s conviction, direct and collateral, including the 

punishment, whether of imprisonment, pecuniary penalty, or whatever else the law has 

provided ***.” People ex rel. Madigan, 208 Ill. 2d at 474. But here, the parties do not contend, 

and we are aware of no authority to the effect, that then-Governor Rauner had the authority to 

pardon Agpawa for his federal conviction, and there is nothing that indicates that was the thenGovernor’s intention. The legislature has the constitutional authority to establish the qualifications 

and eligibility for municipal office, and because the Governor’s pardon power does not extend to 

a federal offense, he cannot eliminate the collateral consequences that result from a disqualifying 

federal conviction. The terms of the Governor’s certificate issued to Agpawa do not qualify as “a 

pardon for the offense” under section 29-15 of the Election Code. Agpawa’s eligibility to seek or 

hold municipal office in Illinois was not restored because the Governor could not remove the 

collateral consequences that flow from the disqualifying federal conviction. 

¶ 35 In light of our finding, we do not reach petitioners’ other arguments on appeal. 

¶ 36 III. CONCLUSION 

¶ 37 The judgment of the circuit court that affirmed the Board’s decision is reversed, and the 

Board’s decision is also reversed. Roger Agpawa, having been convicted of the infamous crime of 

mail fraud in 1999, was not a duly qualified candidate for any statutorily created municipal office 

in Illinois, including the office of Mayor of the City of Markham, and is, therefore, ineligible to 

hold or to take the oath of office as Mayor of the City of Markham. 

¶ 38 Circuit court judgment reversed. 

¶ 39 Board decision reversed. 

19 
 

 

 

No. 1-21-0080 

¶ 40 PRESIDING JUSTICE WALKER, dissenting: 

¶ 41 I respectfully dissent because the Committee on the Executive Proposal Number 1, as a 

part of the Sixth Illinois Constitutional Convention, proposed the inclusion in the Illinois 

Constitution of 1970 that “[t]he Governor may grant reprieves, commutations, and pardons, for all 

offenses on such terms as he thinks proper. The manner of applying therefore may be regulated by 

law.” Ill. Const. 1970, art. V, § 12; 6 Record of Proceedings, Sixth Illinois Constitutional 

Convention 390. The Committee explained: 

“The only change of substance involved in this revised section is one that 

was *** added to allow the Governor to issue conditional pardons, as he may now 

grant full pardons. *** Neither the existing pardons section nor this revision vest 

power in the General Assembly to do more than define procedures. The discretion 

to act is entirely that of the Governor.” 6 Record of Proceedings, Sixth Illinois 

Constitutional Convention 390. 

¶ 42 The Committee intended only to broaden the pardon power from the powers granted under 

the 1870 Constitution. The General Assembly’s repeal of section 124-2 cannot limit the 

Governor’s constitutional power to pardon. Thus, under the broader powers of the 1970 

Constitution, the reasoning of People ex rel. Symonds v. Gualano, 124 Ill. App. 2d 208 (1970), is 

just as applicable now as it was in 1968. The restoration of rights granted to Agpawa does not 

affect his conviction for mail fraud, but it affects the consequences under Illinois law which flow 

from the federal conviction. Gualano, 124 Ill. App. 2d at 214-15. 

¶ 43 Other jurisdictions agree that the power to pardon includes the lesser power to restore 

rights, including the right to hold public office. “[T]he authority of state governors to issue pardons 

restoring collateral civil rights forfeited solely as a result of state law, including the right to seek 

20 
No. 1-21-0080 

and hold a municipal or state office, to persons convicted of federal felonies has historically been 

affirmed.” (Emphasis in original) Malone v. Shyne, 937 So. 2d 343, 356 (La. 2006); see also Lopez 

v. Kase, 975 P.2d 346, 350 (N.M. 1999). 

¶ 44 I would find that the governor’s certificate of restoration of the rights of citizenship 

removed Agpawa’s ineligibility to hold public office. For the reasons stated, I respectfully dissent 

from the majority’s opinion. 

21 
BRUCE u'..AUNER 

GoVERNOR 

OFFICE OF THE GOVERNOR 

JRTC, 1 oo w. RAMD0t.PH. su,n 16 1 oo CH•o.Co, 1Lu1-,01s 60601 

F'WLEO 

INDEX DEPARTMEN'f 

SEP 2 5 ZO IB 

IN T_li,li QFF1¢~ OF 

SEORq tARY OF ST!>.TE 

Whereas, ROGER AGPAWA was convicted of the crime of Mail Fraud, Case: 1997 CR 820-2 In 

the Northern Distri!=t of Illinois F'ederal Court and was sentenced December 22, 1999 to 36 

Months Probation and 200 hours community service. 

Whereas, it has been represented to me that ROGER AGf!AWA Is a fit and proper subject for 

Restoration of Rights of Citizenship. 

Now, Know Ye, that I, BRUCE RAUNER, Governor of the State of Illlnols, by virtue of the 

authority vested In me by the Constitutlon 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 hinderance and restored to all rights of citizenship which may have been Forfeited 

under [llfnois 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. 

DATBD: September 14, 2018 

BRUCE RAUNER 

GOVERNOR 

No. 1-21-0080 

¶ 45 IV. Appendix 

¶ 46 A. 

22 
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS 

COUNTY DEPARTMENT, CHANCERY DIVISION 

PEOPLE OF THE STATE OF 

ILLINOIS, 

Plaintiff, 

V. 

ROGER AGPAWA, 

Defendant. 

No. 2017-CH-05276 

Calendar 16 

Judge David B. Atkins 

ORDER 

THIS CASE COMING TO BE HEARD on Defendant's Motion to Vacate 

Judgment, the Court being fully advised in the premises, 

THE COURT HEREBY FINDS AND ORDERS: 

1. On August 9, 2017, this court found that Defendant Agpawa had been 

convicted of felony mail fraud in 1999 in the US District Court for the 

Northern District of Illinois. As noted then, the court had no reason to 

doubt (and Plaintiff did not dispute) that Mr. Agpawa had been reformed 

since his now 18-year-old conviction or that he is a man of good standing 

in his community who many people of Markham support. Nevertheless, 

the court also found that as a result of his conviction he was ineligible 

to hold municipal office under Illinois law. 

2. Plaintiff does not dispute that, as asserted in the instant Motion, Illinois 

Governor Bruce Rauner, on September 20, 2018, issued a "Restoration 

of Rights of Citizenship" purporting to restore all rights Agpawa had 

"forfeited under Illinois law as a r esult of [his] federal conviction." Mot. 

Ex. B. 

3. 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. See People ex rel. Symonds u. Gualano, 124 Ill. App. 2d 208, 220 

(1970); Illinois Const., Art. V, § 12. 

4. Defendant's Motion is accordingly GRANTED in that the court vacates 

the effect of its August 9, 2017 Order and hereby finds that, by virtue of 

a Restoration of Rights issued by the Governor of the State of Illinois, 

Defendant Roger Agpawa's 1999 federal conviction for mail fraud no 

longer renders him ineligible to hold municipal office in Illffl~E DAVID 8 ATKINS 

ENTERED: . 

SEP 28 2018 

Judge David B.t;lrB.ll.lfili0urt-l879 

The Court. 

Page 1 of 1 

No. 1-21-0080 

¶ 47 B. 

23