Pappas v. Calumet City Municipal Officers' Electoral Board

                                                                SIXTH DIVISION
                                                                  May 16, 1997











No. 1-97-0975


JAMES J. PAPPAS,                             )      Appeal from
                                             )   the Circuit Court
          Petitioner-Appellant,              )    of Cook County.
                                             )    
     v.                                      )
                                             )
CALUMET CITY MUNICIPAL OFFICERS' ELECTORAL   )
BOARD, MAGDALENA WOSCZYNSKI, Chairman;       )     No.  97-CO-62
DOMINIC GIGLIOTTI, Member; MICHELLE          )
QUALKINBUSH, Member; GEARY DePUE, Objector;  )
DAVID ORR, Cook County Clerk; and MICHELLE   )
QUALKINBUSH, City of Calumet City, Illinois, )
Clerk,                                       )       Honorable
                                             )   Michael J. Murphy,
          Respondents-Appellees.             )    Judge Presiding.



     JUSTICE THEIS delivered the opinion of the court:

     Petitioner appeals the trial court's ruling affirming the Calumet
City Municipal Officers' Electoral Board's (Board) refusal to order
petitioner's name printed on the ballot for Mayor of Calumet City. 
Petitioner had been convicted of two felonies.  Petitioner claims that
the trial court erred in ruling that the Municipal Code prohibited
petitioner from running for office.  Rather, petitioner argues, the
Municipal Code should be read in pari materia with the Election Code
which permits ex-felons to run under certain circumstances.  For the
first time on appeal, petitioner argues that restricting access to the
ballot implicates a fundamental right, the right to vote, and that the
court must analyze the municipal provision under a strict scrutiny
standard.  We reject petitioner's claim that the legislature intended
to restore a felon's right to run for municipal office.  Further, this
court cannot accurately assess the constitutionality of the provision
without meaningful input from the Attorney General.  
     James J. Pappas filed nomination papers asserting that he was
qualified to hold the office of Mayor in Calumet City, Illinois. 
However, Pappas had been convicted of two felony offenses.  Under the
Illinois Municipal Code:
               "A person is not eligible for an elective
          municipal office if that person is in arrears in
          the payment of a tax or other indebtedness due to
          the municipality or has been convicted in any court
          located in the United States of any infamous crime,
          bribery, perjury, or other felony."  65 ILCS 5/3.1-
          10-5(b) (West 1994).
Accordingly, the Calumet City Municipal Officer's Electoral Board
determined that Pappas was not eligible to run for office and that his
nomination papers were invalid.  See 10 ILCS 5/10-10 (West 1994).  
     Pappas sought administrative review of the Board's determination. 
In response to the Board's motion for summary judgment, Pappas argued
that section 29-15 of the Election Code permitted ex-felons to run for
offices under certain circumstances.  The trial court found that the
referenced provision did not apply to Pappas' bid for a municipal
office.  In granting the Board's motion, the court further determined
that the applicable municipal provision was constitutional under a
rational basis analysis.  
     Pappas then filed an emergency motion for review, arguing that
the legislature did not intend for section 3.1-10-5 of the Municipal
Code to bar ex-felons from municipal office.  The unambiguous language
of section 3.1-10-5 is the clearest indication of the legislature's
intent.  Stone v. Department of Employment Security Bd. of Review, 151 Ill. 2d 257, 602 N.E.2d 808 (1992).  We find that the plain language
of section 3.1-10-5 bars Pappas from holding municipal office. 
     However, Pappas argues that this court should read the Municipal
Code in pari materia with the Election Code and the Uniform Code of
Corrections.  In pari materia is a tool of statutory construction
courts utilize in ascertaining the legislative intent of statutes
concerning the same matter.  Buckellew v. Board of Education of
Georgetown-Ridge Farm Community Unit School Dist. No. 4, 215 Ill. App.
3d 506, 575 N.E.2d 556 (1991).  The Illinois Supreme Court has stated
that: 
          "[I]t is clear that sections in pari materia 
          should be considered with reference to one another
          so that both sections may be given harmonious
          effect.  ***  Even when in apparent conflict,
          statutes, insofar as is reasonably possible, must
          be construed in harmony with one another."  United
          Citizens of Chicago and Illinois v. Coalition to
          Let the People Decide in 1989, 125 Ill. 2d 332,
          339, 531 N.E.2d 802, 804 (1988), quoting People v.
          Maya, 105 Ill. 2d 281, 286-87, 473 N.E.2d 1287,
          1290 (1985).  
Such an interpretation, Pappas claims, will restore his right to run
for municipal office.  A review of these provisions leads this court
to a contrary conclusion.  
     Section 29-15 of the Election Code 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."  (Emphasis added.)  10 ILCS 5/29-15 (West
          1994).     
Pappas directs this court's attention to section 5-5-5(b) of the
Uniform Code of Corrections to interpret the phrase "otherwise
according to law."  See 730 ILCS 5/5-5-5(b) (West 1994).  Section 5-5-
5(b) provides that "[a] person convicted of a felony shall be
ineligible to hold an office created by the Constitution of this State
until the completion of his sentence."  730 ILCS 5/5-5-5(b) (West
1994).  While acknowledging that he is not running for an office
created by the Illinois Constitution, Pappas claims that "otherwise
according to law" must be interpreted as permitting one convicted of
an infamous crime to run for any elective office upon completion of
his sentence. 
     Pappas correctly notes that the Illinois Supreme Court, when
faced with provisions which appeared to be ambiguous and conflicting,
held that the Illinois Municipal Code and the Election Code could be
construed in pari materia.  United Citizens of Chicago and Illinois v.
Coalition to Let the People Decide in 1989, 125 Ill. 2d 332, 531 N.E.2d 802 (1988).  However, we have found no ambiguity in the clear
language of section 3.1-10-5 prohibiting felons from seeking municipal
office.  
     In addition, we find no conflict between the referenced
provisions.  Section 29-15 of the Election Code states that the
legislature has the power to restore those convicted of infamous
crimes the right to run for election "according to law."  10 ILCS
5/29-15 (West 1994).  In enacting section 5-5-5(b), the legislature
saw fit to allow felons to run for constitutional office upon
completion of sentence or if pardoned.  Section 5-5-5(b), however, has
no application to the municipal office Pappas seeks.  The legislature
addressed the limitations on eligibility for municipal office when
amending section 3.1-10-5 of the Municipal Code in 1992.  While the
legislature had the opportunity to add a restoring clause, the
legislature failed to do so.  Accordingly, we will:
          "[C]onstrue the statute as it is and *** not, under
          the guise of construction, supply omissions, remedy
          defects, annex new provisions, substitute different
          provisions, add exceptions, limitations, or
          conditions, or otherwise change the law so as to
          depart from the plain meaning of the language
          employed in the statute."  Buckellew v. Board of
          Education of Georgetown-Ridge Farm Community Unit
          School Dist. No. 4, 215 Ill. App. 3d 506, 511, 575 N.E.2d 556, 559 (1991).
Therefore, we find that the plain language of section 3.1-10-5 of the
Municipal Code bars Pappas' access to the municipal ballot.
     In his pleadings before this court, Pappas states that he "does
not seek to challenge the constitutionality of the revised Illinois
Municipal Code, 65 ILCS 5/3.1-10-5.  Instead, the Appellant in the
Circuit Court and before this Court contends that the Municipal Code
should be read in pari materia with the Election Code ***."  Pappas
claims that because he "did not challenge the constitutionality of the
Municipal Code, it [was] unnecessary and improper for the Circuit
Court to apply its own constitutional analysis ***."
     While Pappas distances himself from the constitutional
discussions in the prior proceedings, Pappas responds to the
appellees' arguments by raising a unique constitutional challenge in
his reply brief on appeal.  Pappas cites to the Illinois Supreme
Court's decision in Tully v. Edgar, 171 Ill. 2d 297, 664 N.E.2d 43
(1996), for the position that the constitutionality of section 3.1-10-
5 should be analyzed under a strict scrutiny standard.  Pappas argues
that the limitation the Municipal Code places upon a candidate's
access to the ballot implicates the fundamental right to vote, and
therefore section 3.1-10-5 should be analyzed under a strict scrutiny
standard.  The precise issue of whether Municipal Code section 3.1-10-
5 implicates Pappas' fundamental rights is one of first impression in
Illinois.  A party asserting such a challenge must comply with
Illinois Supreme Court Rule 19, which provides:
          "In any cause or proceeding in which the
          constitutionality of a statute, ordinance or
          administrative regulation affecting the public
          interest is raised, and to which action or
          proceeding the State or the political subdivision,
          agency, or officer affected is not already a party,
          the litigant raising the constitutional issue shall
          serve an appropriate notice thereof on the Attorney
          General, State's Attorney, municipal counsel or
          agency attorney, as the case may be."  134 Ill. 2d
          R. 19(a).
     Pappas acknowledges that he has not served an appropriate notice
on the Attorney General, and he does not seek leave to do so on
appeal.  On the contrary, Pappas claims that the appellees' position
that Supreme Court Rule 19 bars this court's consideration of a
constitutional challenge is "misplaced *** because *** [the] Appellant
does not seek to challenge the constitutionality of [section 3.1-10-
5]."  We decline to resolve this serious question of the
constitutionality of section 3.1-10-5 without affording the Attorney
General and the litigants the opportunity for meaningful
participation.  
     The dissent suggests that despite the failure of the petitioner
to raise the constitutional issue in a timely fashion or to comply
with the terms of Supreme Court Rule 19, we should treat these
proceedings as if they were merely extensions of the trial court and
allow petitioner to amend his pleadings.  Although the dissent is
concerned that the constitutional issue cannot be raised in a setting
other than a hurried election contest, the plaintiff in Coles v. Ryan
91 Ill. App. 3d 382, 414 N.E.2d 932 (1980), provides an appropriate
road map to consideration of the issue--a declaratory judgment action.
     Therefore, we affirm the ruling of the trial court.
     Affirmed.
     GREIMAN, P.J., concurs.
     ZWICK, J., concurs in part and dissents in part.

     JUSTICE ZWICK, concurring in part, dissenting in part:
     The Calumet City Municipal Officers' Electoral Board (the
"Electoral Board") refused to place James J. Pappas ("petitioner") on
the April 1, 1997, general election ballot as a candidate for the
office of mayor of Calumet City. Although petitioner's nominating
papers were in order, the Electoral Board ruled that section 5/3.1-10-
5 of the Municipal Code (65 ILCS 5/3.1-10-5 (West 1996)) disqualified
petitioner from being a candidate because he had been convicted of two
felonies some 15 years earlier. Petitioner, on March 11, 1997, sought
judicial review in the circuit court of Cook County. The circuit
court, on March 18, 1997, affirmed the Electoral Board's decision by
written order.
     Petitioner filed notice of appeal in this court on March 19,
1997, and filed an emergency motion seeking expedited appellate review
on March 20, 1997. Petitioner's motion was filed just before ballots
for the election were to be printed. Respondents filed responses to
the motion on March 24, 1997, and petitioner filed his reply that same
day. On March 25, 1997, without the benefit of either briefs or oral
argument, we entered judgment affirming the trial court. Because we
were unable to issue our written opinion within the 21-day
jurisdictional window which exists following our entry of judgment
(see 134 Ill. 2d R. 367(b); Woodson v. Chicago Board of Education, 154 Ill. 2d 391, 397, 609 N.E.2d 318 (1993)), we stayed judgment pending
filing of the attached opinion. 
     The majority's opinion implies that petitioner challenged the
constitutionality of Municipal Code section 5/3.1-10-5 for the first
time on appeal. This is simply not the case. My review of the record
indicates petitioner cited Coles v. Ryan, 91 Ill. App. 3d 382, 414 N.E.2d 932 (1980), both in the proceedings before the Election Board
and in his petition for judicial review in the circuit court. Both the
Election Board and the circuit court discussed Coles and its relation
to the constitutionality of the Municipal Code in rendering their
decisions. The Election Board determined that it was without
jurisdiction to address a constitutional challenge to the Act; the
circuit court rejected the analysis set out in Coles.
     In Coles, the sole issue was whether the equal protection clause
of the fourteenth amendment to the United States Constitution was
violated by the General Assembly's disparate treatment of convicted
felons who seek election to a constitutionally created office vis a
vis those who seek election to a legislatively created office. The
court noted that the General Assembly had made provisions restoring
the qualification of convicted felons to run for constitutional office
upon completion of their sentence pursuant to the Uniform Code of
Corrections (see 730 ILCS 5-5-5(b)(West 1996)), but had failed to
provide this same right to those who run for the lesser offices.
Coles, 91 Ill. App. 3d at 385. Applying traditional equal protection
analysis, the court determined that the equal protection clause was
violated because there was no rational basis justifying the
distinction. 
     Although the trial court recognized that the Coles decision is
factually similar to the instant case, the court declined to follow
the result suggested by Coles. Instead, the court stated it believed a
rational basis supporting the legislative distinction existed, even
though the appellate court in Coles stated no such basis was apparent.
Coles, 91 Ill. App. 3d at 386. In my view, whatever else may be said,
the trial court violated its obligation to follow appellate precedent
in rendering its decision. Although, as the respondents have argued,
Coles involved a candidate for township supervisor and certain
provisions of the Election Code, as opposed to a candidate for mayor
and provisions of the Municipal Code that are at issue here, the
ultimate issue is the same in both cases. If there was an equal
protection violation in Coles, it follows logically and necessarily
that there is an equal protection violation in petitioner's case.  
     An even more troubling aspect of this case, however, is not in
what the trial court did, but rather, in what the majority here has
failed to do. Recently, in Tully v. Edgar, 171 Ill. 2d 297, 664 N.E.2d 43 (1996), our supreme court explained that when legislation affects
any stage of the election process, including the stage at which
candidates are nominated, the public's fundamental right to vote is
necessarily implicated. Tully, 171 Ill. 2d  at 307. Moreover, although
the court recognized that legislation is presumed to be constitutional
when challenged in the courts, it stated this presumption is lessened
when the right to vote is at issue. Tully, 171 Ill. 2d  at 304. The
court determined that "far more demanding scrutiny" is warranted in
cases involving legislation that affects voting rights. Tully, 171 Ill. 2d  at 307. 
     The Tully decision represents a recent and dramatic change in
Illinois election law. Before Tully, it was generally recognized that
the only rights at stake in an election case brought by a potential
candidate for office were the candidate's non-fundamental rights to
government employment. See e.g., Coles, 91 Ill. App. 3d at 385;
Strobeck v. Illinois Civil Service Com., 70 Ill. App. 3d 772, 388 N.E.2d 912 (1979). However, the supreme court has now recognized the
significant difficulties which arise when attempting to separate a
candidate's right to run for public office from the right of the
electorate to place that person in office. The Tully case establishes
that limiting the former necessarily restricts the latter.
     In justifying its decision to avoid the constitutional issue
presented by petitioner, the majority cites petitioner's failure to
comply with Supreme Court Rule 19. This argument is makeweight. As I
have noted, petitioner's constitutional challenge was timely raised in
both the Election Board proceedings and in the trial court. Although
Rule 19 provides that a litigant must give "prompt notice" to the
State if he wishes to challenge the constitutionality of a statute,
the rule is directory only, and no where does the rule state that
failure to give such notice necessarily must result in waiver of the
constitutional claim. Such an interpretation of the rule is
particularly unfair where, as here, the respondents have raised the
rule for the first time in their motions on appeal. Moreover, Rule 19
specifically envisions that notice of a constitutional challenge may
be given to the State when a constitutional issue is raised for the
first time on review. See 134 Ill. 2d R. 19(b). This being the case, I
would grant petitioner leave to comply with the rule rather than find
waiver. 
     The majority next determines that petitioner has waived his
constitutional claim because he failed to argue Tully in his initial
motion before this court and because he now states he did not
challenge the constitutionality of the Municipal Code in the circuit
court. However, the rule of waiver is a limitation on the parties,
not the courts. A reviewing court, in the exercise of its
responsibility for a just result and the maintenance of a sound and
uniform body of precedent, may consider issues not properly preserved
by the parties. Geise v. Phoenix Co. of Chicago, Inc., 159 Ill. 2d 507, 514, 639 N.E.2d 1273 (1994). In this case, the potential harm to
the electorate's voting rights is too severe to invoke waiver simply
because petitioner delayed four days in raising Tully.  
     I recognize that the passing of the April 1 election has rendered
moot the petitioner's request to be added to the ballot, and that no
meaningful relief can now be given to the petitioner. The issue
presented, however, is of substantial public interest and warrants
consideration even now, after the election is over. Cf. Cintuc, Inc.
v. Kozubowski, 230 Ill. App. 3d 959, 972-73, 596 N.E.2d 101 (1992);
Trotter v. Education Officers Electoral Board of Canton Union School
District No. 66, 158 Ill. App. 3d 848,
512 N.E.2d 115 (1987). In addition, this issue should be addressed
because it is "capable of repetition, yet evading review." Stephens v.
Education Officers Electoral Board, 236 Ill. App. 3d 159, 161, 603 N.E.2d 642 (1992). This is particularly true since a future challenge
to this Municipal Code section will likely be raised in the hurried
and expedited fashion typical of election cases. Because these
circumstances do not allow for the possibility of "full litigation"
(Stephens, 236 Ill. App. 3d at 161), it would be better for us to
decide this important constitutional question now after the parties
have been given the opportunity to brief it, rather than at the last
minute in a subsequent case. Such an approach is also preferable to
the majority's suggestion that the petitioner file a declaratory
judgment action in the circuit court. It is a patent waste of the
parties' resources and the circuit court's time to require that a
second record be created when we already have before us one which
fully presents the issue. 
     In sum, although I have no particular disagreement with the
majority's analysis of the statutory language involved, I am
disheartened by its unwillingness to consider the petitioner's
significant constitutional challenge. Instead of summarily rejecting
petitioner's claim by invoking Supreme Court Rule 19 and the waiver
rule, I would allow him the opportunity to comply with the notice
provisions of Rule 19 and then order whatever constitutional arguments
are raised to be briefed and argued on a non-expedited basis. In my
view, the rights of the voters of this State mandate nothing less.