With the stroke of a pen, it seems, a governor can trump state law and allow a felon to hold municipal office in Illinois.
That’s one way to interpret Thursday’s Illinois Supreme Court ruling that found felon Roger Agpawa is eligible to be mayor of south suburban Markham.
The high court’s unanimous ruling reversed a state appellate court verdict that determined Agpawa’s “restoration of rights” certificate signed by former Gov. Bruce Rauner in 2018 wasn’t worth the paper on which it was printed.
Agpawa needed a presidential pardon or a change in state law to undo the consequences of his federal mail fraud conviction, the appellate court ruled in a 2-1 opinion issued in April.
He ended up getting the change in state law.
The Supreme Court noted legislators May 31 amended state law regarding eligibility of felons to hold municipal office and that Gov. J.B. Pritzker signed the measure into law June 17.
Three Markham citizens who filed a lawsuit challenging Agpawa’s eligibility to run for reelection in April argued the legislation was hastily enacted as a result of lobbying efforts on Agpawa’s behalf. Justices pooh-poohed the argument.
“We should not be shocked that lobbying influences the legislative process,” the court wrote in a 12-page ruling. “Any concerns about that should be directed at the political branches and not the judiciary.”
The high court was expected to rule as it did ever since the General Assembly on Memorial Day rewrote election law to allow felons whose citizenship rights were restored by governors to hold municipal office.
The only big questions remaining were when would the high court deliver its ruling and when would Agpawa take the oath of office for a second term. The Markham City Council’s next scheduled meeting is Wednesday.
Agpawa has refrained from presiding over city council meetings. However, he has continued to conduct city business while using the informal title, “mayor elect.” He wore city apparel to an Amazon event last month. The Markham website greets visitors with, “A Message from Mayor Roger A. Agpawa.”
He held a big rally April 25 at Markham City Hall in a blatant misuse of public resources for political gain. Several south suburban elected officials attended the event and some addressed the crowd. It was a sad day for ethics and principles.
“It will be interesting to see what happens if Roger Agpawa is elected mayor of Markham,” I wrote back in January 2017 when I broke the story about the issue of his eligibility.
Boy, did it get interesting.
Cook County State’s Attorney Kim Foxx first wrote to Agpawa in March 2017, telling him state law prohibited him from serving as mayor. After Agpawa won the election in April 2017, Foxx obtained a court order preventing him from taking office. Agpawa appealed but lost.
Then Rauner issued his untitled document on official letterhead Sept. 14, 2017.
“Roger Agpawa is hereby discharged of and from all further hindrance and restored to all rights of citizenship which may have been forfeited under Illinois law as a result of the federal conviction,” the certificate said, in part.
It took another year of legal twists and turns, but Agpawa finally took the oath of office as Markham mayor in October 2018.
The Agpawa case was about power: Political, legal and legislative power. Illinois law clearly said felons could not hold municipal office. However, the high court essentially said governors have power to undo the will of the legislature.
“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,” according to the Supreme Court ruling.
In other words, the law preventing felons from holding municipal office is like a building that casts a shadow. The court’s ruling is like saying the governor cannot regulate the building but he can control the shadow. Sounds absurd, right?
Brian Gaines, an election law expert who teaches political science at the University of Illinois, said the court sidestepped such concerns as whether felons who fulfill their criminal sentences have paid their debt to society and whether they should have full rights like other citizens.
“Rather, it turned on the intersection of gubernatorial and presidential pardoning powers,” Gaines replied in response to an inquiry. “Can a governor, who cannot issue a federal pardon, nonetheless restore state-level rights to someone who lost them when convicted of a federal crime?”
The case dealt with an unusual circumstance, he wrote, and may not have much impact beyond Markham.
“The court merely reestablished that the Illinois governor has broad powers in regard to restoration of rights governed by state law,” Gaines wrote.
Agpawa did not immediately respond Friday to a request for comment. His attorney, Burt Odelson of Evergreen Park, said the ruling will have a positive impact on many people for years to come.
“Of all of the precedent setting cases I have handled, this is one of the top three for legal importance and precedence,” Odelson said.
Andre Finko, an attorney who represented the three Markham citizens who challenged Agpawa’s eligibility to seek reelection this year, said the legislative amendment that allowed Agpawa to be mayor was tailored for Agpawa’s circumstances.
“This law won’t help other citizens who are truly rehabilitated and reformed after a felony conviction,” Finko said. “There is no road map to obtain a restoration of rights by which any other person could A, determine if he or she is eligible and B, apply for a restoration of rights.”
Good legislation would involve public hearings at which felons could testify about how they have turned around their lives after past indiscretions and are now model citizens who ought to be able to be mayors and hold other elected offices.
There’s none of that in the Agpawa case. It’s the story of someone who was ineligible to play a political game and got the rules changed so he could.
Finko suggested one way to react to the ruling.
“Perhaps the only way to expose the sham is to have every person with a felony send a paper mail envelope with a request for a restoration of rights to the governor’s office,” he said.
“When the bags of mail start arriving, maybe we’ll get the ‘Miracle on 34th Street,’ and some real legislation that allows anyone, regardless of political clout or money to buy political clout, the right to obtain a restoration of rights,” Finko said.
I told Finko that sounded like a heavy lift involving a lot of people. I suggested a more simple response that would require action by only one individual.
What if Gov. J.B. Pritzker issued a proclamation revoking Rauner’s restoration of rights certificate for Agpawa, I suggested.
That would open a can of worms, I said. It would expose the absurdity of a system where laws are tailored to accommodate individual circumstances, regardless of ethics, principles or justice.
Ted Slowik is a columnist for the Daily Southtown.
