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APRIL 23, 2021
COOK COUNTY, FEATUREAppellate Court: Markham Mayor Agpawa Ineligible For Office; Governor Cannot Restore Rights Of Federal Felon -
BY JOHN KRAFT & KIRK ALLEN
Markham, IL. (ECWd) -
Just as we predicted in our January article (here) the First District Appellate Court issued its Opinion that recently re-elected mayor of Markham, IL, Roger Agpawa, is deemed ineligible to hold any Illinois municipal office, due to a federal felony conviction, and that the Governor of the State of Illinois cannot restore rights to a federal felon.
According to the Southland Journal:
"Earlier this year, the City of Markham’s Electoral Board voted to allow Agpawa on the ballot due to a “Restoration of Rights” provided by former Governor Bruce Rauner. Agpawa had pled guilty to mail fraud in 1999.
Agpawa’s mail fraud conviction is a federal felony, which cannot be reversed, pardoned, or otherwise overlooked under a state Restoration of Rights letter.
Agpawa’s challenger in the recent April 6 Consolidated Elections, Jennifer Coles, won just over 18% of the votes, according to unofficial election results. Where this leaves the mayoral seat is in question."
Cook County Circuit Court agreed with the Electoral Board, the Appellate Court reversed.
From the Appellate Court's Opinion:
- 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.
- 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 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.
- Petitioners argue that the Governor has no authority to pardon a federal offense . . . 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
- Agpawa argues, however, that the Governor has the authority to restore state rights that are lost as a collateral consequence of a federal conviction.
- We agree with petitioners and disagree with Agpawa.
- 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.
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