Pappas v. Calumet City Municipal Officers' Electoral Board

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’s) 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 Illinois Municipal Code (65 ILCS 5/1 — 1—1 et seq. (West 1994)) prohibited petitioner from running for office. Rather, petitioner argues, the Municipal Code should be read in pari materia with the Election Code (10 ILCS 5/1 — 1 et seq. (West 1994)), 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, Pap-pas 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 Board 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 (730 ILCS 5/1 — 1—1 et seq. (West 1994). 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 District No. 4, 215 Ill. App. 3d 506, 575 N.E.2d 556 (1991). The Illinois Supreme Court has stated:

" '[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. [Citations.] Even when in apparent conflict, statutes, insofar ás is reasonably possible, must be construed in harmony with one another.’ ” United Citizens 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 that appeared to be ambiguous and conflicting, held that the Illinois Municipal Code and the Election Code could be construed in pari materia. United Citizens 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 to 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:

"[Cjonstrue 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 District 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 Tally 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.