                                Illinois Official Reports

                                        Appellate Court



                          Alvarez v. Williams, 2014 IL App (1st) 133443



Appellate Court           ANITA ALVAREZ, in Her Capacity as Cook County State’s
Caption                   Attorney, Plaintiff-Appellee, v. KENNETH J. WILLIAMS, in His
                          Capacity as Thornton Township High School District 205 School
                          Board President, Defendant-Appellant.


District & No.            First District, Third Division
                          Docket No. 1-13-3443


Filed                     December 10, 2014



Held                       The trial court properly granted plaintiff State’s Attorney summary
(Note: This syllabus judgment in a quo warranto action based on the argument that
constitutes no part of the defendant’s 1985 Indiana felony forgery conviction on an
opinion of the court but accountability theory constituted an infamous crime under section
has been prepared by the 29-15 of the Election Code that rendered defendant ineligible to hold
Reporter of Decisions the office of a school board member; furthermore, the trial court did
for the convenience of not violate defendant’s due process or equal protection rights, and the
the reader.)               fact that the conviction was expunged in Indiana after the trial court
                           entered its order had no effect on the trial court’s action in the instant
                           case.



Decision Under            Appeal from the Circuit Court of Cook County, No. 2013-CH-1379;
Review                    the Hon. Rita Novak, Judge, presiding.



Judgment                  Affirmed.
     Counsel on               Andrew Finko, of Andrew Finko, P.C., of Chicago, for appellant.
     Appeal
                              Anita M. Alvarez, State’s Attorney, of Chicago (Daniel F. Gallagher,
                              Kent S. Ray, and Sisavanh B. Baker, Assistant State’s Attorneys, of
                              counsel), for appellee.



     Panel                    JUSTICE LAVIN delivered the judgment of the court, with opinion.
                              Presiding Justice Pucinski and Justice Hyman concurred in the
                              judgment and opinion.




                                               OPINION

¶1         This interlocutory appeal arises from the trial court’s order granting summary judgment in
       favor of plaintiff Anita Alvarez, in her capacity as Cook County State’s Attorney, in a
       quo warranto action, pursuant to section 18-101 of the Code of Civil Procedure (735 ILCS
       5/18-101 (West 2012)), against defendant Kenneth J. Williams. On appeal, defendant first
       contends that the trial court erred in granting summary judgment because he is statutorily
       qualified to seek and hold public office under the Illinois Election Code (10 ILCS 5/1-1 et seq.
       (West 2012)) and School Code (105 ILCS 5/1-1 et seq. (West 2012)). Defendant also contends
       his due process rights were violated because the term “infamous crime” is vague and,
       therefore, violates the due process clause of the United States Constitution (U.S. Const.,
       amend. XIV). In addition, defendant contends that section 29-15 of the Election Code (10
       ILCS 5/29-15 (West 2012)) violates his equal protection rights under the fourteenth
       amendment of the United States Constitution (U.S. Const., amend. XIV) because there is a
       disparity in the eligibility requirements for convicted felons seeking to hold constitutional and
       legislatively created offices. Furthermore, defendant contends that his equal protection rights
       were violated by plaintiff’s selective prosecution of defendant. Finally, defendant contends
       that the trial court abused its discretion by limiting discovery. We affirm.

¶2                                          BACKGROUND
¶3         In April 2009, defendant was elected to the Board of Education for Thornton Township
       High School District 205 (Board) and was subsequently reelected in April 2012, attaining the
       position of Board president. Prior to defendant’s reelection to the Board, plaintiff filed a
       complaint against defendant alleging that a prior conviction (a 1985 Indiana felony forgery
       conviction on an accountability theory for which he served five years) constituted an infamous
       crime under section 29-15 of the Election Code (10 ILCS 5/29-15 (West 2012)), rendering him
       ineligible to hold the office of a school board member. See Ind. Code Ann. §§ 35-41-2-4,
       35-43-5-2 (West 1984). The parties filed cross-motions on the pleadings. After briefing and
       argument, the trial court dismissed plaintiff’s motion for default judgment and defendant’s
       motion to dismiss. Defendant then filed his answer and affirmative defensives, drawing


                                                   -2-
     plaintiff’s motion for summary judgment. Defendant thereafter filed his response to plaintiff’s
     motion for summary judgment, along with his counsel’s Rule 191(b) affidavit (Ill. S. Ct. R.
     191(b) (eff. Jan. 4, 2013)), regarding anticipated evidence that would have been obtained
     through party discovery. Defendant also filed a cross-motion for summary judgment including
     two volumes of exhibits highlighting documents obtained through the Freedom of Information
     Act (5 ILCS 140/1.1 et seq. (West 2012)). In October 2013, the trial court allowed oral
     argument on both motions for summary judgment and ruled in plaintiff’s favor. The court
     determined that defendant’s conviction was applicable in Illinois and he was statutorily
     ineligible to hold the office of a school board member under the Election Code (10 ILCS 5/1-1
     et seq. (West 2012)) and School Code (105 ILCS 5/1-1 et seq. (West 2012)). Consequently, the
     trial court denied defendant’s emergency motion to stay enforcement of the court’s order. We
     note that approximately four months later, after the trial court issued its final ruling and
     defendant filed this appeal, the State of Indiana granted defendant an expungement of his
     criminal conviction. See Ind. Code Ann. § 35-38-9-10 (West 2012).

¶4                                              ANALYSIS
¶5       Defendant first contends that the trial court erred in granting summary judgment because
     he is statutorily qualified to seek and hold public office under the Illinois Election Code (10
     ILCS 5/1-1 et seq. (West 2012)) and School Code (105 ILCS 5/1-1 et seq. (West 2012)).
     Summary judgment is proper where the pleadings, admissions, depositions and affidavits
     demonstrate there is no genuine issue as to any material fact so that the movant is entitled to
     judgment as a matter of law. Ioerger v. Halverson Construction Co., 232 Ill. 2d 196, 201
     (2008); 735 ILCS 5/2-1005 (West 2012). In determining whether a genuine issue of material
     fact exists, the court must consider such items strictly against the movant and liberally in favor
     of its opponent. Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). We review the trial
     court’s order granting summary judgment de novo. Weather-Tite, Inc. v. University of St.
     Francis, 233 Ill. 2d 385, 389 (2009).
¶6       The School Code provides that “[a]ll school elections shall be governed by the general
     election law of the State.” 105 ILCS 5/9-1 (West 2012). Section 1-1 of the Election Code states
     that it “is the general election law of Illinois and any reference in any other Act to ‘the general
     election law’ or ‘the general election law of this State’ is a reference to this Act, as now or
     hereafter amended.” 10 ILCS 5/1-1 (West 2012). Thus, the Election Code governs the election
     of school board members and must be read in harmony with the School Code.
¶7       Under the School Code, a person is eligible to serve as an elected member of a board of
     education if: (1) he or she is a United States citizen; (2) is over the age of 18; (3) has been a
     resident in the district for at least one year immediately preceding the election; (4) is a
     registered voter; (5) is not a trustee; and (6) is not a child sex offender as defined by the Illinois
     Criminal Code of 2012 (720 ILCS 5/1-1 et seq. (West 2012)). 105 ILCS 5/10-10 (West 2012).
     In addition, various provisions in the Election Code and School Code prohibit convicted felons
     from holding an elective office. Under section 25-2(5) (10 ILCS 5/25-2(5) (West 2012)) of the
     Election Code, an elective office becomes vacant upon the incumbent’s conviction for an
     “infamous crime.” See also 105 ILCS 5/10-11(5) (West 2012) (elective offices under the
     School Code become vacant upon conviction of an “infamous crime”). Consequently, section
     29-15 of the Election Code states:


                                                   -3-
                “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 2012).
¶8         Under section 124-1 of the Code of Criminal Procedure of 1963 (Code of Criminal
       Procedure), an infamous crime was defined as:
                “the offenses of arson, bigamy, bribery, burglary, deviate sexual assault, forgery, incest
                or aggravated incest, indecent liberties with a child, kidnaping or aggravated
                kidnaping, murder, perjury, rape, robbery, sale of narcotic drugs, subornation of
                perjury, and theft if the punishment imposed is imprisonment in the penitentiary.”
                (Emphasis added.) Ill. Rev. Stat. 1983, ch. 38, ¶ 124-1 (repealed by Pub. Act 84-1047,
                § 2 (eff. July 1, 1986)).
¶9         We must first construe the applicable statutes in order to determine whether defendant is
       entitled to continue in his office as a matter of statutory right. A reviewing court’s primary
       objective in performing statutory construction is to give effect to the legislature’s intent.
       In re Application of the County Treasurer & ex officio County Collector, 2013 IL App (1st)
       130103, ¶ 9. The best indication of legislative intent is the statutory language, given its plain
       and ordinary meaning. Id. Reviewing courts should consider a statute in its entirety, keeping in
       mind the subject it addresses and the legislature’s apparent objective in enacting it, and
       avoiding constructions that would render any term meaningless or superfluous. Fisher v.
       Waldrop, 221 Ill. 2d 102, 112 (2006). Furthermore, reviewing courts have a duty to construe a
       statute in a manner that upholds its validity and constitutionality. Id.
¶ 10       When read in their entirety, the provisions of the Election Code and School Code at issue
       establish an intent by the legislature to prevent individuals convicted of infamous crimes from
       holding offices of honor, trust and profit without an official pardon or restoration of rights.
       Although defendant contends that the repeal of section 124-1 of the Code of Criminal
       Procedure renders section 29-15 of the Election Code immaterial, we disagree. According to
       the principles of statutory construction, it is well settled that statutes which adopt by specific
       reference provisions of other statutes are not affected by a subsequent amendment or repeal of
       the incorporated statute. See Town of Libertyville v. Continental Illinois National Bank & Trust
       Co. of Chicago, 187 Ill. App. 3d 84, 90 (1989). Thus, the repeal of section 124-1 of the Code of
       Criminal Procedure does not change the classifications for an “infamous crime” in section
       29-15 of the Election Code. Furthermore, “[a] felony is infamous when it is inconsistent with
       commonly accepted principles of honesty and decency, or involves moral turpitude,” and
       defendant’s conviction of forgery certainly offends this principle. People ex rel. City of
       Kankakee v. Morris, 126 Ill. App. 3d 722, 726 (1984). Moreover, courts reviewing section
       29-15 of the Election Code subsequent to the repeal of section 124-1 of the Code of Criminal
       Procedure have continued to apply its definition of the term “infamous crime.” See Pappas v.
       Calumet City Municipal Officers’ Electoral Board, 288 Ill. App. 3d 787, 789 (1997); see also
       Parker v. Lyons, 757 F.3d 701, 704-07 (7th Cir. 2014).
¶ 11       Defendant also contends that by amending the eligibility requirements of the School Code
       in 2003 to exclude “child sex offender[s]” from holding office, the legislature demonstrated its
       intent to limit the ineligibility of convicted felons to this sole offense. See 105 ILCS 5/10-3
       (West 2012). Section 10-11 of the School Code states that elective offices become vacant upon

                                                    -4-
       the following happenings: (1) the death of the incumbent; (2) his resignation in writing filed
       with the secretary or clerk of the board; (3) his becoming a person under legal disability; (4) his
       ceasing to be an inhabitant of the district for which he was elected; (5) his conviction of an
       infamous crime, of any offense involving a violation of official oath, or of a violent crime
       against a child; (6) his removal from office; or (7) the decision of a competent tribunal
       declaring his election void. See 105 ILCS 5/10-11 (West 2012).
¶ 12       Upon our reading of the School Code in its entirety, we find no indication that the
       legislature intended to disregard any of the above happenings for vacancies, namely, a
       conviction for an infamous crime, let alone a conviction for a violent crime against a child.
       Furthermore, we find defendant’s contention that a vacancy is only triggered when an
       individual commits one of the above offenses while physically in office misplaced. Clearly, as
       discussed above, the legislature intended to keep individuals convicted of infamous crimes
       from ever holding office in the first place. Defendant cites no authority to support this
       contention and we need not consider this matter further. See Ill. S. Ct. R. 341(h) (eff. Feb. 6,
       2013) (an appellant’s brief shall contain the contentions of the appellant and the reasons
       therefor with citation to authority).
¶ 13       Additionally, although defendant contends that section 124-1 of the Code of Criminal
       Procedure does not specifically identify “aiding and abetting” forgery as an infamous crime,
       we still believe the legislature intended to incorporate such a conviction under the
       accountability theory. Under Illinois law, a person is accountable for the acts of another when,
       before or during the commission of the offense, and with the intent to promote or facilitate
       such commission, he solicits, aids, abets, agrees or attempts to aid the other person in the
       planning or commission of the offense. See People v. Rodriguez, 229 Ill. 2d 285, 289 (2008);
       720 ILCS 5/5-2(c) (West 2012). The common criminal design rule provides that where two or
       more persons engage in a common criminal design or agreement, any acts in furtherance of
       that common design committed by one party are considered to be the acts of all parties to the
       design or agreement and all are equally responsible for the consequences of the further acts.1
       People v. Redmond, 341 Ill. App. 3d 498, 511 (2003). Thus, through the application of the
       common criminal design rule, defendant’s conviction for aiding, inducing, or causing the
       offense of forgery is considered an infamous crime under section 124-1 of the Code of
       Criminal Procedure. See People v. Kunce, 196 Ill. App. 3d 388, 390-91 (1990) (where the
       defendant was convicted of forgery under the accountability theory). Accordingly, we agree
       with the trial court that the legislature intended the School Code and Election Code to exclude
       individuals convicted of infamous crimes from eligibility to hold the office of a school board
       member, and thus, defendant was not statutorily eligible. See People v. Hofer, 363 Ill. App. 3d
       719, 723 (2006) (Illinois has an interest in barring felons from elective office “to ensure public
       confidence in the honesty and integrity of those serving in state and local offices”).
¶ 14       Defendant next contends that his due process rights were violated because the term
       “infamous crime” is vague and therefore violates the due process clause of the United States

           1
            Defendant’s conviction under Indiana law was comparable to the crime of aiding and abetting a
       forgery under Illinois law. See Ind. Code Ann. §§ 35-43-5-2, 35-41-2-4 (West 2012) (“[a] person who
       knowingly or intentionally aids, induces, or causes another person to commit an offense commits that
       offense, even if the other person: (1) has not been prosecuted for the offense; (2) has not been convicted
       of the offense; or (3) has been acquitted of the offense”).

                                                       -5-
       Constitution (U.S. Const., amend. XIV). In order for a statute to be void for vagueness, we
       must determine (1) whether the law fails to provide people of ordinary intelligence a
       reasonable opportunity to understand what conduct it prohibits so that one may act
       accordingly; and (2) whether the law provides reasonable standards to law enforcement to
       ensure against authorizing or even encouraging arbitrary and discriminatory enforcement.
       Wilson v. County of Cook, 2012 IL 112026, ¶ 21.
¶ 15        As mentioned in detail above, the plain language of section 124-1 of the Criminal Code
       clearly defines the specific crimes the legislature deems infamous. The term “infamous crime”
       is far from archaic and is well established in Illinois case law. See Stinson v. Chicago Board of
       Election Commissioners, 407 Ill. App. 3d 874, 876 (2011); Morris, 126 Ill. App. 3d at 726;
       People ex rel. Ryan v. Coles, 64 Ill. App. 3d 807, 810 (1978). Therefore, defendant fails to
       demonstrate that a person of ordinary intelligence would misinterpret its meaning or that his
       past conviction prohibited him from holding office. Thus, his due process rights were not
       violated in this regard.
¶ 16        Relying solely on Coles v. Ryan, 91 Ill. App. 3d 382 (1980), defendant also contends that
       section 29-15 of the Election Code violates his equal protection rights under the fourteenth
       amendment of the United States Constitution (U.S. Const., amend. XIV) because there is no
       rational basis for the disparity in the eligibility requirements for convicted felons seeking to
       hold constitutionally and legislatively created offices. Under the Illinois Constitution (Ill.
       Const. 1970, art. III, § 2), the voting rights of a person convicted of a felony are restored after
       the person has served his sentence. In addition, he is then eligible to hold a constitutional
       office. See Ill. Const. 1970, art. XIII, § 1. The Illinois Constitution also grants to the legislature
       the authority to create units of local government (Ill. Const. 1970, art. VII, § 12), and when a
       local 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.” Hofer, 363 Ill. App. 3d at 723. Thus, aside from a
       gubernatorial pardon, the legislature has the authority to dictate under what circumstances a
       convicted felon may hold a legislatively created office.
¶ 17        Hence, we find defendant’s sole reliance on Coles misplaced. In Coles, the Second District
       examined whether there was a rational basis for the legislature establishing two different
       means by which a convicted felon was restored to the right to hold office when a convicted
       felon was ousted from his office of township supervisor. Coles, 91 Ill. App. 3d at 385-86. The
       Coles court determined that “[p]lacing more burdensome requirements on restoration of
       eligibility for an office created by the legislature is an arbitrary classification and does not
       rationally further any legitimate State interest.” Id. at 386. In reaching that decision, however,
       the court specifically noted that the State’s Attorney argued generally that the subject was
       within the province of the legislature and did not suggest a rational basis to support the
       differing classifications. Id.
¶ 18        Subsequently, in Hofer over 25 years later, the Fifth District addressed this same equal
       protection question when it examined section 3.1-10-5(b) of the Illinois Municipal Code
       (65 ILCS 5/3.1-10-5(b) (West 2002)). Hofer, 363 Ill. App. 3d at 723 (“[a] person is not eligible
       for an elective 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” (internal quotation
       marks omitted)). After reviewing the Coles decision and the bases therefor, the Hofer court
       determined that Coles was distinguishable because the State’s Attorney in Hofer explained that

                                                     -6-
       “the legislative scheme was rationally related to the legitimate state interest in maintaining the
       public trust in local elective offices.” Id. at 724. Thus, the Hofer court held that a rational basis
       existed for the treatment as the public is more likely to scrutinize candidates for constitutional
       offices. Id. The court noted that since
                “elected officials make important fiscal and policy decisions which directly impact the
                residents of the municipality[,] *** the legislature’s decision to require a convicted
                felon to present some evidence of rehabilitation beyond the mere service of his
                sentence in order to regain his eligibility to hold a municipal office is a reasonable
                means to further the State’s interest in safeguarding the integrity of and the public trust
                in municipal government.” Id.
       Therefore, this appellate court found a rational basis for the disparity in eligibility
       requirements.
¶ 19       In the case sub judice, we see no reason why the legislatively created office of a school
       board member should be given any differential treatment from a municipal office. See
       Delgado v. Board of Election Commissioners, 224 Ill. 2d 481, 487-88 (2007) (where the
       supreme court reviewed the Hofer case and applied its holding and reasoning). The same
       policy concerns apply to school board members. After all, they shape school policy and make
       financial decisions for the education of our state’s youth. There is clearly a rational basis for
       this disparity and defendant’s equal protection claim fails.
¶ 20       Defendant further fails to establish that his equal protection rights were violated by
       plaintiff’s selective prosecution. Selective prosecution requires that the defendant establish
       that (1) he was singled out for prosecution while other violators similarly situated were not
       prosecuted; and (2) the decision to prosecute was based on an arbitrary classification, such as
       race, religion or the exercise of constitutional rights. People v. Fields, 322 Ill. App. 3d 1029,
       1032 (2001). Here, defendant fails to set forth facts to demonstrate that plaintiff singled him
       out when she filed the quo warranto action. Defendant’s reliance on one electoral case in
       which plaintiff, as an electoral board member and not as the complaining party, allowed a
       candidate with prior felony convictions to be on the ballot for a township’s trustee of schools is
       not in and of itself enough to establish selective prosecution. See Glaser v. Luster, 13 COEB
       SD 01 (Cir. Ct. Cook County). Defendant provides us with no additional facts or instances and
       fails to establish that there was any arbitrary classification. See City of Chicago v. Unit One
       Corp., 218 Ill. App. 3d 242, 248 (1991) (“[t]o invoke the claim of selective prosecution, the
       complaining party must prove that the selection was based on some invidious classification”).
       Thus, we need not consider this matter further.
¶ 21       Furthermore, the record before us fails to establish that the trial court abused its discretion
       and violated defendant’s due process rights by limiting discovery. In fact, after defendant filed
       his cross-motion for summary judgment and his counsel’s Rule 191(b) affidavit (Ill. S. Ct. R.
       191(b) (eff. Jan. 4, 2013)), the trial allowed a hearing on the cross-motions. After the hearing,
       the trial court determined that there was no issue of material fact and we find nothing in the
       record suggesting the court ruled improperly on summary judgment at that time. Accordingly,
       the trial court did not abuse its discretion and violate defendant’s due process rights. See
       Fidelity & Casualty Co. of New York v. Mobay Chemical Corp., 252 Ill. App. 3d 992, 1001
       (1992) (a trial court has broad discretionary powers relative to discovery matters, orders
       restricting discovery will only be reversed as an abuse of discretion when such rulings prevent
       the ascertainment of truth or substantially affect an issue in a case).

                                                     -7-
¶ 22       Finally, although we note that defendant’s criminal conviction has been expunged in
       Indiana, it is immaterial to our review of the trial court’s order before us. The expungement
       was not in existence at the time the trial court issued its ruling and, thus, has no bearing on
       whether the trial court committed error in granting plaintiff summary judgment. Therefore, we
       will not consider whether defendant is now eligible to seek legislatively elected office in the
       future.

¶ 23                                      CONCLUSION
¶ 24      Based on the foregoing, we affirm the judgment of the circuit court of Cook County.

¶ 25      Affirmed.




                                                  -8-
