                                     2018 IL App (1st) 172639

                                                                                  SIXTH DIVISION
                                                                                      May 11, 2018

                                           No. 1-17-2639


                                         IN THE

                              APPELLATE COURT OF ILLINOIS

                                FIRST JUDICIAL DISTRICT



THE PEOPLE ex rel. NKYIA ERVIN,                             )   Appeal from the Circuit Court of
                                                            )   Cook County.
       Plaintiff-Appellant,                                 )
                                                            )
v.                                                          )   No. 17 CH 7376
                                                            )
DEAN BARNETT,                                               )
                                                            )   Honorable Rodolfo Garcia,
       Defendant-Appellee.                                  )   Judge Presiding.


       JUSTICE DELORT delivered the judgment of the court, with opinion.
       Justices Cunningham and Connors concurred in the judgment.

                                             OPINION

¶1     Relator Nkyia Ervin filed a petition for leave to file a complaint in quo warranto against

defendant Dean Barnett, a member of the board of education of a suburban public school district.

Ervin’s petition alleged that she was the parent of a minor enrolled in one of the district’s

schools, and that Barnett was a “convicted felon” and thus ineligible to hold his office pursuant

to section 29-15 of the Election Code (10 ILCS 5/29-15 (West 2016)). Attached to the petition

were copies of letters that Ervin’s attorney sent to the Attorney General and the State’s Attorney

of Cook County requesting that they bring a quo warranto action against Barnett on their own.

The petition alleged that both offices declined to proceed. The record before us contains a copy

of a letter from the state’s attorney declining to pursue the matter. Neither Ervin’s letters to the
No. 1-17-2639


two agencies, nor the petition itself, specified any details of the felony in question, such as the

date or the nature of the crime committed.

¶2      Barnett appeared and filed a motion to dismiss Ervin’s petition pursuant to section

2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2016)). In the section

2-619 portion of the motion, Barnett argued that the petition should be dismissed because (1) the

crime of which Barnett was convicted was not an “infamous crime” as defined by state law; (2)

Ervin had not alleged a sufficiently distinct private interest to warrant her ability to file a

quo warranto petition after the Attorney General and state’s attorney had declined to do so; and

(3) the issue of Barnett’s qualifications had been resolved in another lawsuit and that Ervin’s

petition was thus barred by the doctrines of res judicata, collateral estoppel, and law of the case.

In the section 2-615 portion of the motion, Barnett alleged that the petition was defective because

Ervin did not file a security for costs when she filed the case as required by section 18-105 of the

Code, or issue a formal summons as required by section 18-106 of the Code. 735 ILCS 5/18-105,

18-106 (West 2016).

¶3      Furthermore, Barnett’s motion to dismiss admitted that in 1993, when Barnett was 17

years old, he was convicted in circuit court of Cook County case No. 93-MC6-010900 of the

offense of possession of a stolen motor vehicle (Ill. Rev. Stat. 1991, ch. 95½, ¶ 4-103(a)(1)). A

copy of the felony complaint is attached to the motion to dismiss. Ervin did not—and does not—

dispute the facts surrounding Barnett’s conviction. The record also contains a certified statement

from the clerk of the circuit court of Cook County showing that on November 15, 1993, Barnett

pleaded guilty to the charge in question, was found guilty based on the plea, was sentenced to

two years’ probation, and thereafter completed probation satisfactorily. Barnett’s motion further

explained that the circuit court of Cook County had previously resolved the question of whether



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No. 1-17-2639


his felony conviction barred him from running for the school board. In 2017, the same attorney

who now represents Ervin represented an objector to Barnett’s nomination papers for reelection

to the school board. The gist of the objections was that Barnett’s felony conviction disqualified

him from running for the board. The electoral board adopted a hearing officer’s

recommendation, which determined that because Barnett’s conviction was for “theft,” it was for

a crime enumerated as an “infamous” crime in section 124-1 of the Code of Criminal Procedure

of 1963. On judicial review of the electoral board’s decision, Presiding Judge Sullivan of the

county division of the circuit court of Cook County entered an order reversing the board’s

finding and overruling the objections. That court’s order found that “the offense of

receipt/possession of a stolen motor vehicle is not an infamous crime as set forth in 10 ILCS

5/29-15 as infamous crime is defined in section 124-1 of the 1963 Criminal Code.” Barnett v.

Cook County Officers Electoral Board, No. 2017-COEL-39 (Cir. Ct. Cook County, Feb. 24,

2017).

¶4       On September 26, 2017, after briefing, the circuit court granted Barnett’s motion and

denied Ervin leave to file a quo warranto petition. The court found that because Barnett’s 1993

conviction was not for an “infamous crime” as defined by state law, Ervin’s petition failed to

allege a valid basis to bring a quo warranto claim. The court further found that the public interest

in judicial economy did not favor relitigating an issue which had already been decided in the

2017 proceedings before the Cook County Electoral Board and the circuit court. This appeal

followed.

¶5       Section 18-101 of the Code allows private parties to file complaints in quo warranto with

leave of court if the Attorney General and state’s attorney have declined to do so on their own.

735 ILCS 5/18-101 (West 2016). Whether to grant a petition for leave to file a quo warranto



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action is a matter within the trial court’s sound discretion. People ex rel. Hansen v. Phelan, 158

Ill. 2d 445, 449 (1994) (citing People ex rel. Prather v. Miller, 331 Ill. 395, 399 (1928)). “In the

exercise of its discretion, the court should consider all of the conditions and circumstances in the

case, the motives of the relators in instituting the proceedings, the policy of and necessity for the

remedy sought, and whether the public interest will be served or damaged by the writ.” Id.

(citing Miller, 331 Ill. at 399, and People ex rel. Weber v. Burson, 307 Ill. 533, 536 (1923)). We

review a trial court’s denial of leave to file a quo warranto case for abuse of discretion. Id.

¶6     This case involves interpretation of three statutes. The first is section 29-15 of the

Election Code, which provides:

                “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 2016).

¶7     Section 124-1 of the Code of Criminal Procedure of 1963 was repealed in 1986. It

contained a specific list of crimes which were “infamous” crimes: “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.” Ill. Rev. Stat. 1983, ch. 38, ¶ 124-1 (repealed by Pub. Act 84-1047, § 2 (eff.

July 1, 1986)). Despite the repeal of section 124-1, its definition of “infamous crime” remains

applicable to section 29-15 of the Election Code. Alvarez v. Williams, 2014 IL App (1st)



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No. 1-17-2639


133443, ¶ 10. The Alvarez court stated: “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.” Id. Thus, the Alvarez

court held, “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.” Id.; accord People

ex rel. Foxx v. Agpawa, 2018 IL App (1st) 171976, ¶ 17 n.1.

¶8        Barnett was charged with violation of the possession of a stolen motor vehicle statute (Ill.

Rev. Stat. 1991, ch. 95½, ¶ 4-103(a)(1)), which provided that it was felony for “[a] person not

entitled to the possession of a vehicle or essential part of a vehicle to receive, possess, conceal,

sell, dispose, or transfer it, knowing it to have been stolen or converted.” Notably, that statute did

not require that the defendant steal or commit any theft himself; it merely required that the

defendant “receive, possess, conceal, sell, dispose, or transfer” a vehicle which was already

stolen.

¶9        The cardinal rule of statutory construction is to ascertain and give effect to the

legislature’s intent, and the plain language of the statute is the best indication of that intent. Acme

Markets, Inc. v. Callanan, 236 Ill. 2d 29, 37-38 (2009). “The best evidence of legislative intent is

the language used in the statute itself, which must be given its plain and ordinary meaning.”

Roselle Police Pension Board v. Village of Roselle, 232 Ill. 2d 546, 552 (2009). “The statute

should be evaluated as a whole, with each provision construed in connection with every other

section.” Id. If the statutory language at issue is clear and unambiguous, a reviewing court must

interpret the statute according to its terms without resorting to aids of statutory construction.

Branson v. Department of Revenue, 168 Ill. 2d 247, 254 (1995).




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¶ 10   Distilled to its essence, this case presents a simple question of statutory interpretation.

Section 124-1 of the Code of Criminal Procedure classified 18 specific offenses as “infamous”

crimes. None of these offenses cover Barnett’s 1993 conviction of the crime of possession of a

stolen motor vehicle. The only one even remotely related to Barnett’s conviction is theft, which

the electoral board erroneously found was applicable. But Barnett was not convicted of a theft.

Rather, he was convicted of the less severe crime of possessing stolen property. Therefore, the

“infamous crime” provision of section 29-15 of the Election Code does not disqualify Barnett

from holding office as a member of the board of education.

¶ 11   Relying on People ex rel. Marre v. Countryside Sanitary District, 5 Ill. App. 3d 747

(1972), Ervin makes an unconvincing argument to the contrary. In Marre, the court cautioned

against conflating the two steps in the quo warranto process: granting leave to file a complaint

and the actual complaint itself. Id. at 750. Since the circuit court essentially dismissed the case

on the merits at the “leave” stage, she contends that the court acted prematurely. We disagree. As

our supreme court held in Hansen, the court possesses discretion in determining whether even to

grant a private party leave to file a complaint in quo warranto against an elected official. Put

simply, the circuit court was correct when it found that the stolen vehicle offense was not an

“infamous” crime. Because Barnett’s conviction was for a crime not included in section 124-1 of

the Criminal Code of 1963, allowing Ervin to file her quo warranto petition would have been

futile, and the law does not require the performance of a futile act. Geary v. Dominick’s Finer

Foods, Inc., 129 Ill. 2d 389, 400 (1989) (citing Lang v. Hedenberg, 277 Ill. 368, 376 (1917)).

Therefore, the circuit court did not abuse its discretion in denying Ervin leave to file a complaint

in quo warranto against Barnett.

¶ 12   Affirmed.



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