In the

United States Court of Appeals

For the Seventh Circuit

No. 08-4153

STEPHANIE BOWENS, et al.,

Plaintiffs-Appellees,

v.

PAT QUINN, Governor of Illinois,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06 CV 04915—Joan B. Gottschall, Judge.

ARGUED FEBRUARY 17, 2009—DECIDED APRIL 2, 2009

Before POSNER, KANNE, and WOOD, Circuit Judges.

POSNER, Circuit Judge. Article V, section 12, of the

Illinois Constitution provides that “the Governor may

grant reprieves, commutations and pardons, after conviction, for all offenses on such terms as he thinks

proper. The manner of applying therefor may be

regulated by law.” An Illinois statute establishes procedures for the exercise of this power of executive

clemency, and provides that though “nothing in this
2 No. 08-4153

[statute] shall be construed to limit the power of the

Governor under the constitution to grant a reprieve,

commutation of sentence, or pardon, . . . the Governor shall

decide each application.” 730 ILCS 5/3-3-13(d), (e). The

appellees, who were the plaintiffs in the district court,

are twelve Illinoisans who filed petitions for executive

clemency between 2003 and 2005. Originally there were

just nine plaintiffs. But then-Governor Blagojevich, the

original defendant, while his motion to dismiss the

suit was pending, granted one of the petitions and denied

eight, whereupon the plaintiffs amended their complaint to add three new plaintiffs, whose petitions for

executive clemency had not been acted on.

It might seem that the case would be moot with regard

to the nine plaintiffs whose petitions were acted on, since

the only relief they seek is an injunction requiring the

governor to decide within a reasonable time whether

to grant a pardon that has been applied for. But the

situation of the eight whose applications were denied is

similar to that of a pregnant woman who challenges an

abortion law and by the time the case is ready to decide

has given birth. Her case is “capable of repetition [she

may become pregnant again], yet evading review,” Roe

v. Wade, 410 U.S. 113, 124-25 (1973), quoting Southern

Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911); see

also Weinstein v. Bradford, 423 U.S. 147, 148-49 (1975)

(per curiam), and on this ground is held not to be moot.

The situation of the eight plaintiffs is similar because

each of them can file a new petition for executive

clemency after a year has elapsed from the denial of a

previous one, 730 ILCS 5/3-3-13(a-5), and thus would
No. 08-4153 3

face the prospect of having their next suit rendered moot

by another prompt denial. Eventually they would be

exhausted from repeated futile suits and would give

up, and the governor could then resume his alleged

policy of “pocket vetoing” clemency petitions. We conclude that only the claim of the plaintiff whose

clemency petition was granted is moot.

The plaintiffs contend that by failing to act on their

petitions within a reasonable time, the governors have

violated the due process clause of the Fourteenth Amendment. The district court refused to dismiss the case,

precipitating this interlocutory appeal. 28 U.S.C. § 1292(b).

We think she should have dismissed the case; the plaintiffs have no good constitutional claim.

There is no Fourteenth Amendment property or liberty

interest in obtaining a pardon in Illinois—no substantive

entitlement, in other words—and so no ground for a

claim of denial of due process. This well-established

principle of constitutional law, Olim v. Wakinekona, 461 U.S.

238, 250-51 (1983); Villanova v. Abrams, 972 F.2d 792, 798

(7th Cir. 1992), was applied to pardons in Connecticut

Board of Pardons v. Dumschat, 452 U.S. 458, 464 (1981),

where the Court pointed out that “a decision whether to

commute a long-term sentence generally depends not

simply on objective factfinding, but also on purely subjective evaluations and on predictions of future behavior

by those entrusted with the decision. A commutation

decision therefore shares some of the characteristics of a

decision whether to grant parole. See Greenholtz [v. Inmates

of Nebraska Penal & Correctional Complex, 442 U.S. 1, 9-10
4 No. 08-4153

(1979)]. Far from supporting an ‘entitlement,’ Greenholtz

therefore compels the conclusion that an inmate has ‘no

constitutional or inherent right’ to commutation of his

sentence.” (To the same effect, see Ohio Adult Parole

Authority v. Woodard, 523 U.S. 272 (1998), and Woratzeck v.

Arizona Board of Executive Clemency, 117 F.3d 400, 403-04

(9th Cir. 1997).) The Illinois governor’s power of pardon is

plenary; no substantive limitation is imposed by the state

constitution or by any other source of state law. Cf. Miller

v. Henman, 804 F.2d 421, 424-25 (7th Cir. 1986); Huggins v.

Isenbarger, 798 F.2d 203, 206 (7th Cir. 1986) (per curiam).

The plaintiffs try to sidestep Dumschat by arguing that

they are claiming an entitlement not to a pardon but

merely to a reasonably prompt decision on their application, which they contend is a real “entitlement” because it

invokes a statutory command (the Governor shall decide

whether to grant the pardon) rather than merely seeking

an exercise of uncanalized discretion. But the only reason

they want a decision is that it is their only hope of getting

a pardon, and if they obtained a pardon it would not

secure an interest protected by the due process clause. The

grant of a pardon must not be confused with restoration of

freedom. The plaintiffs completed their sentences long

ago. They want pardons because they have trouble

finding and holding jobs, and they have that trouble

because they have to tell employers, if the employers

ask, that they are felons. This quandary would be relevant

to their quest for jobs (including promotions) only if a

pardon would wipe the slate clean, ending their status as

felons. In general that is not true, at least in Illinois. “[A]

pardon implies guilt; it does not obliterate the fact of the
No. 08-4153 5

commission of the crime and the conviction thereof.”

Talarico v. Dunlap, 685 N.E.2d 325, 327 (Ill. 1997). “ ‘The

granting of a pardon does not expunge the record [of

conviction].’ ” People v. Glisson, 372 N.E.2d 669, 670 (Ill.

1978), quoting the Illinois Clemency Rules Book.

The governor can, it is true, grant a pardon that explicitly authorizes expungement of the applicant’s conviction upon application to a court, 20 ILCS 2630/5(c), and

the grant of the application would bar prospective employers from considering the expunged conviction,

20 ILCS 2630/12(a). But the court to which the application

for expungement is made after the governor acts is not

required to grant it; the application is merely a request

that the court exercise discretion in the applicant’s favor.

People v. Howard, 2009 WL 711121 (Ill. Mar. 19, 2009).

Anyway the plaintiffs don’t tell us whether they sought

such a pardon, as they could have done by checking a

box on the application form, www.state.il.us/prb/docs/

clempetition.pdf (visited Mar. 20, 2009), or sought merely

the normal general pardon, which does not lead to

expungement. There are also pardons based on a determination that the applicant was innocent of the crime

of which he was convicted, People v. Chiappa, 368 N.E.2d

925, 926-927 (Ill. App. 1977), but our plaintiffs do not

claim to have been innocent, so we need not consider the

effect of such a pardon either.

And though having a criminal record does reduce a

person’s job opportunities by impairing his reputation

for good character, reputation is not a property or

liberty interest within the meaning of the due process
6 No. 08-4153

clauses of the federal Constitution. Siegert v. Gilley, 500 U.S.

226, 233-35 (1991); Paul v. Davis, 424 U.S. 693, 710-12 (1976);

Brown v. City of Michigan City, 462 F.3d 720, 729-32 (7th Cir.

2006); Mosrie v. Barry, 718 F.2d 1151, 1158-62 (D.C. Cir.

1983). Even if it were, this would not help the plaintiffs because they don’t contest the convictions that

injured their reputations, and this implies that they had

in their criminal proceedings adequate process to try to

protect their reputations from being sullied by a criminal conviction.

They do not claim to be seeking pardons in order to

remove statutory disabilities, either, such as the right to

vote or to hold public office; anyway most statutory

disabilities resulting from a felony conviction are restored

automatically upon the completion of the defendant’s

sentence, see Margaret Colgate Love, “Relief from the

Collateral Consequences of a Criminal Conviction (Illinois),” January 2007, www.sentencingproject.org/tmp/File/

Collateral%20Consequences/Illinois(2).pdf (visited Mar. 20,

2009), and others can be restored by administrative fiat.

See, e.g., 730 ILCS 5/5-5.5-5 et seq.

And while a requirement of prompt action on a petition

for a pardon may sometimes benefit the applicant, if the

alternative would be a pocket veto, it is not a substantive

entitlement; otherwise any time a state official failed to

act within a prescribed period of time he would be

deemed to have violated the federal Constitution. That

cannot be correct, as only substantive entitlements are

protected by the due process clauses. Unless compliance

with a procedural requirement secures a substantive
No. 08-4153 7

entitlement, the failure to comply with it does not invade

an interest protected by the due process clauses. “The

executive’s clemency authority would cease to be a

matter of grace committed to the executive authority if

it were constrained by the sort of procedural requirements that respondent urges.” Ohio Adult Parole Authority

v. Woodard, supra, 523 U.S. at 285.

We do not even think that the Illinois statute creates

a requirement of prompt, or indeed of any, action by the

governor on a clemency petition. The statute merely

describes steps in the sequence of procedures in clemency

matters. There is first the petition, then consideration of

it by the Prisoner Review Board, then “the Governor

shall decide each application and communicate his decision to the Board which shall notify the petitioner,” and

there are further steps after that. 730 ILCS 5/3-3-13.

Unless and until the governor decides the application

and communicates his decision to the Board, the further

steps are pretermitted.

If this is wrong and the statute does require the

governor to make a decision, still, it does not specify a

time limit. It might seem that a “reasonable” time could

be implied, as is done in contracts that do not specify a

deadline for performance. E. Allan Farnsworth, Contracts

§ 3.28, p. 205 (4th ed. 2004); Restatement (Second) of Contracts

§ 204, comment d (1981); Rose v. Mavrakis, 799 N.E.2d

469 (Ill. App. 2003); Meyer v. Marilyn Miglin, Inc., 652

N.E.2d 1233, 1239 (Ill. App. 1995). But we have no idea

what a “reasonable” time for deciding a clemency

petition would be. It would depend on the number of
8 No. 08-4153

petitions, which must vary from year to year (we have

data only for 2005, when 713 clemency petitions were

filed; the governor granted 1 and denied 31, and so 681

were left undecided), and on the other tasks besides

reviewing recommendations for clemency forwarded to

him by the Prisoner Review Board to which a governor

must attend.

Executive clemency is a classic example of unreviewable

executive discretion because it is one of the traditional

royal prerogatives (along with receiving foreign ambassadors and commanding the armed forces) borrowed by

republican governments for bestowal on the head of

government. U.S. Const., art. II, § 2, cl. 1; Schick v. Reed,

419 U.S. 256, 260-66 (1974); Ex parte Grossman, 267 U.S. 87,

108-10 (1925); John Harrison, “Pardon as Prerogative,” 13

Fed. Sentencing Rptr. 147 (2001) (“seeing the pardon

power as a bit of the royal prerogative dropped into our

generally law-bound constitutional system provides a

perspective on the actual and possible functions of that

power”). We therefore balk at the idea of federal judges’

setting timetables for action on clemency petitions by

state governors.

And what sanction could a federal court impose for

noncompliance with any “reasonable time” deadline that

the court might set? Would it be to grant the pardon? If so,

the governor’s office would be overwhelmed. Every

felon in the state would apply for a pardon knowing that,

with all applying, the governor’s office, overwhelmed,

would be unable to process the applications within

the deadline set by the court, and so they would be
No. 08-4153 9

granted by default. Federal courts have run prisons,

school systems, police and fire departments, and other

state and local agencies found to have engaged in unconstitutional conduct. But for a federal court to run a governor’s pardon system would be a step too far.

The ruling by the district court is reversed with instructions to dismiss the suit with prejudice.

REVERSED.

4-2-09