The Illinois Supreme Court has ruled the mayor of suburban Markham may hold office, despite a 1999 conviction for mail fraud, finding former Gov. Bruce Rauner's restoration of the mayor's "electoral" rights was allowed by a recent statute, which opponents claimed was "hastily enacted" specially for the mayor.
The Aug. 26 opinion was authored by Justice Mary Jane Theis, with concurrence from Chief Justice Anne Burke and Justices P. Scott Neville Jr., Rita Garman, Michael Burke, Robert Carter and David Overstreet. The decision favored Markham Mayor Roger Agpawa in his fight to retain his post.
In 1999, Agpawa was convicted of federal mail fraud. According to court papers, Agpawa defrauded an insurance company while he was Markham Deputy Fire Chief. He was sentenced to three years' probation, to 200 hours of community service and $60,907 restitution. He satisfied the sentence by 2002. Agpawa has also been fire chief in neighboring Country Club Hills.
In 2017, Agpawa ran for mayor, but Cook County State's Attorney Kim Foxx said his conviction barred him from office. In the meantime, Agpawa won the election, and went to court to overcome Foxx and gain his seat, but found no success in either Cook County Circuit Court or Illinois First District Appellate Court.
Agpawa next obtained from then Gov. Bruce Rauner, a document that purported to restore Agpawa's citizenship rights. As a result, Agpawa was allowed to take office in September 2018. When Agpawa ran for reelection in 2020, David Walker, Robert Depolo and Marina Pangopoulos objected, claiming Agpawa was not eligible because he needed a presidential pardon, which he never received.
The three objectors then suffered defeat before the Markham Municipal Officers Electoral Board and a circuit court judge. However, they won a 2-1 decision in First District Appellate Court, which said only a White House pardon lets a federal felon hold municipal office. The appellate ruling was issued April 22, 2021.
On May 31, the Legislature passed proposed amendments to the Illinois Election Code and Municipal Code, which were signed June 17 by Gov. JB Pritzker. The amendments took effect the same day. Agpawa then took his case to the Illinois Supreme Court, which agreed to expedite the matter.
Justice Theis pointed to the amendments as underpinning her decision to find for Agpawa.
The amendments provide that a person convicted of an "infamous" crime, such as mail fraud, only has the right to assume municipal office after the governor restores this right, according to Theis. Neither the General Assembly nor the governor can pardon federal convictions, but the amendments authorized the governor to "mitigate" the state "electoral consequences" of such convictions by restoring the right to hold office, Theis said.
Theis observed the objectors' arguments were "easy to reject."
The objectors contended the amendments were the result of "lobbying efforts" on Agpawa's behalf and were "nothing short of special legislation" to benefit Agpawa, "rushed to passage" and "hastily enacted."
Theis replied, "We should not be shocked that lobbying influences the legislative process. Any concerns about that should be directed at the political branches and not the judiciary."
In addition, Theis said the amendments did not have to specifically be given retroactive effect — as claimed by the objectors — because the Legislature had long "acquiesced" to a 1970 Second District Appellate Court ruling, which said the governor can eliminate the state electoral consequences of a federal conviction. In other words, the amendments were declarations of existing law, with no need for retroactivity, according to Theis.
"The Legislature acted quickly to correct the appellate court's [2021] contrary decision here," Theis noted.
Theis also shot down another objector argument that the lack of a procedural process for requesting the restoration of rights, voided the restoration granted Agpawa. Theis answered the absence of procedure is "constitutionally unproblematic."
To illustrate her point no procedure was needed, Theis quoted a 1927 Illinois Supreme Court opinion that described the governor's clemency power as very broad and “controlled only by his conscience and his sense of public duty."
Agpawa has been represented by Stephen Laduzinsky and Natalie Wilkins of Laduzinsky & Associates, of Chicago.
The board and Cook County Clerk Karen Yarbrough, who oversees county elections, have been represented by Burton Odelson, John B. Murphy and Ross Secler, of Odelson, Sterk, Murphey, Frazier & McGrath of Evergreen Park.
The objectors have been represented by Chicago lawyer Andrew Finko.