2023 IL App (3d) 220292
Opinion filed April 27, 2023
_________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2023
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois.
Plaintiff-Appellee, )
) Appeal No. 3-22-0292
v. ) Circuit No. 22-CH-33
)
KARL FERRELL, ) The Honorable
) John C. Anderson,
Defendant-Appellant. ) Judge, presiding.
___________________________________________________________________________
PRESISING JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
Justice Brennan 1 concurred in the judgment and opinion.
Justice McDade specially concurred, with opinion.
___________________________________________________________________________
OPINION
¶1 Defendant-Appellant Karl Ferrell was elected a trustee of Joliet Township in April 2021.
Eleven months later, the Will County State’s Attorney filed a quo warranto complaint on behalf
of the State alleging that Ferrell was ineligible to hold that office because he had previously been
convicted of several drug-related felonies which he had failed to disclose before assuming office.
1
Justice Brennan was assigned to this case upon his election to the Third District Appellate
Court effective December 5, 2022. Justice Brennan has read the briefs and listened to the recording of
the oral argument.
The State sought a declaration that Ferrell was not eligible to hold his seat as a township trustee
and that the seat was vacant. The State also sought an injunction barring Ferrell from holding the
office of township trustee and from exercising the powers of that office. Ferrell filed affirmative
defenses to the State’s complaint, and the parties filed cross-motions for summary judgment.
¶2 The circuit court granted the State’s motion in part and denied Ferrell’s motion. The court
held that Ferrell has no authority or eligibility to hold the office of Joliet Township Trustee and
declared his seat to be vacant. Ferrell filed a motion to reconsider, which the circuit court denied.
This appeal followed.
¶3 BACKGROUND
Ferrell was elected a Trustee of Joliet Township on April 6, 2021. He took the oath of
office and assumed his duties on May 14, 2021. He served in that capacity for approximately 10
months without incident.
¶4 After Ferrell was sworn in as trustee, the State’s Attorney became aware that Ferrell had
been convicted of multiple felonies before he ran for and assumed the office, including three drug-
related felonies and a felony for the unlawful possession of a weapon by a felon. The most serious
of Ferrell’s convictions was a 2010 conviction for possession with intent to deliver more than 1
gram but less than 15 grams of a controlled substance, a Class 1 felony. Ferrell pleaded guilty to
that offense and was sentenced to four and a half years’ imprisonment. He also pleaded guilty to
possession of cannabis with intent to deliver and to the unlawful possession of a gun by a felon.
(The sentences for those offenses ran concurrently with his sentence for the Class 1 felony
conviction.) He had been convicted of other drug-related offenses prior to 2010. Ferrell did not
disclose any of his prior felony convictions before or during his campaign for Trustee, nor at any
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time thereafter. In December of 2020, Ferrell signed a notarized “Statement of Candidacy” form
stating that he was “legally qualified” for the position of trustee of Joliet Township.
¶5 On March 8, 2022, the State filed a quo warranto complaint in the circuit court of Will
County alleging that Ferrell was ineligible to serve as a township trustee pursuant to section 55-
6 of the Illinois Township Code (the Township Code) (60 ILCS 1/55-6 (West 2020) and section
5/29-15 of the Illinois Election Code (Election Code) (10 ILCS 5/29-15 (West 2020)). Section
55-6 of the Township Code provides that a person is not eligible to hold any township office “if
that person, at the time required for taking the oath of office, has been convicted in any court
located in the United States of any infamous crime, bribery, perjury, or other felony.” 60 ILCS
1/55-6 (West 2020). Section 29-15 of the Election Code provides, in pertinent part, that “[a]ny
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, has received a restoration of rights by the Governor, or otherwise
according to law.” 10 ILCS 5/29-15 (West 2020).
¶6 The State’s complaint alleged three counts. In Count 1, the State demanded that Ferrell
show that he is authorized to hold the seat of trustee of Joliet Township. In Count II, the State
sought a declaratory judgment that Ferrell was not eligible to hold that office due to his prior
felony convictions, which the State alleged were “infamous crimes.” In Count III, the State
sought an injunction barring Ferrell from holding his seat and from exercising the power of the
office of township trustee.
¶7 In his Answer to the State’s complaint, Ferrell admitted his prior convictions but asserted
three affirmative defenses. Specifically, Ferrell asserted that: (1) the State’s delay in bringing its
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quo warranto action was unreasonable and unjustified, and was therefore barred by the defense
of laches; (2) the Township Code violated the equal protection clauses of the federal and Illinois
constitutions by arbitrarily establishing stricter eligibility requirements for Township offices than
for other elected offices; and (3) he had recently filed a “Petition for Gubernatorial
Pardon/Restoration of Rights,” the granting of which would render this action moot. Ferrell asked
the circuit court to stay the proceedings pending Governor Pritzker’s decision regarding his
pardon application.
¶8 The circuit court handled the case on an expedited basis. After conducting limited
discovery, the parties filed cross-motions for summary judgment.
¶9 On June 24, 2022, the circuit court granted the State’s motion in part and denied Ferrell’s
motion. The court found and declared that Ferrell “has no authority or eligibility to hold the office
of Joliet Township Trustee,” and declared his seat to be vacant. It rejected Ferrell’s laches
defense, holding that Ferrell had failed to establish the extremely stringent requirements for the
application of laches in a quo warranto proceeding. The circuit court declined to address Ferrell’s
equal protection argument because it found that Ferrell had failed to comply with Illinois Supreme
Court Rule 19, which, according to the circuit court, requires a party challenging the
constitutionality of a statute to provide timely notice to the Attorney General.
¶ 10 The circuit court refused to stay the action pending the Governor’s decision on Ferrell’s
pardon application because it found that: (1) Ferrell’s request for a stay is not a recognized
affirmative defense; (2) there is no way to know if or when the governor will act on the petition,
and the citizens of Joliet cannot be required to wait indefinitely for a trustee; and (3) Ferrell had
failed to establish that any pardon or restoration of rights by the Governor would apply
retroactively to the time Ferrell took the oath of office. Based on these findings, the circuit court
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ruled that, even if Ferrell ultimately receives a pardon, he would remain ineligible to serve as a
trustee under the plain terms of the Township Code, which requires that eligibility exists “at the
time required for taking the oath of office.”
¶ 11 The circuit court stayed its Order for 30 days so that Ferrell would have an opportunity to
appeal. Ferrell was suspended from office with pay pending the resolution of the quo warranto
action.
¶ 12 After the circuit court’s ruling, Ferrell served notice of his constitutional claim upon the
Attorney General. He then filed a motion for reconsideration with the circuit court arguing that
he was not required to notify the Attorney General of his claim because Rule 19 states that notice
to the State’s Attorney suffices, and the State’s Attorney was notified of the claim when Ferrell
filed his affirmative defenses. Ferrell further noted that Rule 19 states that notice is unnecessary
when the relevant State officer is a party to the action, as it was in this case. The circuit court
rejected these arguments and denied Ferrell’s motion.
¶ 13 Ferrell timely appealed the circuit court’s judgment. We stayed the circuit court’s Order
pending the resolution of the appeal. The State filed a motion to dismiss the appeal on
jurisdictional grounds, which we denied. After oral argument, we ordered the parties to file
supplemental briefs addressing, among other issues: (1) if we were to find that the Township Code
violated equal protection, what election law would apply to determine Ferrell’s eligibility to hold
a township office; and (2) if the Election Code applies, has Ferrell committed an "infamous crime"
under section 29-15 of that Code? The parties filed supplemental briefs addressing these issues.
ANALYSIS
¶ 14 Summary judgment is appropriate where “the pleadings, depositions, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material fact
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and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2–1005(c)
(West 2008). A quo warranto action may be decided by summary judgment. People ex rel.
Alvarez v. Price, 408 Ill. App. 3d 457 (2011); see also People ex rel. Smith v. Brown,
356 Ill.
App. 3d 1096, 1101–02 (2005). We review a trial court’s grant or denial of summary judgment
de novo. Arangold Corp. v. Zehnder, 204 Ill. 2d 142, 146 (2003).
¶ 15 1. Laches
¶ 16 Ferrell argues that the State’s complaint should be barred by the doctrine of laches. He
notes that the State did not bring its quo warranto complaint until March 9, 2022, twelve months
after his candidacy became public and almost a year after his election. Ferrell contends that this
delay was unreasonable and inexcusable because Ferrell’s prior felony convictions were matters
of public record for more than a decade before he announced his candidacy.
¶ 17 Laches is an affirmative defense which may be asserted against a plaintiff who “has
knowingly ‘slept’ on its rights and, thus, is deemed to have acquiesced to the actions of the
defendant.” City of Chicago v. Alessia, 248 Ill. App. 3d 218, 228-29 (1994); see also Van Milligan
v. Board of Fire & Police Commissioners of the Village of Glenview, 158 Ill. 2d 85, 90 (1994).
The burden is on the defendant to show a lack of due diligence on the part of the plaintiff in
asserting its rights against him and that this delay caused him prejudice. The defendant must prove
not only that a considerable amount of time has passed, but also that the plaintiff had knowledge
of the facts giving rise to its claim and chose not to act upon them. Alessia, 248 Ill. App. 3d 218
at 229.
¶ 18 Courts are reluctant to impose laches to the actions of a government entity unless the
defendant can show “unusual,” “extraordinary,” or “compelling” circumstances. Van Milligan,
158 Ill. 2d at 90–91. “Mere nonaction of governmental officers is not sufficient” to support a
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claim of laches. Alessia 348 Ill. App. 2d at 229 (quoting City of Marengo v. Pollack, 335 Ill. App.
3d 981, 989 (2002)). Rather, a positive or affirmative act must have been taken by such officers,
inducing the action of the defendant under the circumstances and making it inequitable to permit
the governmental entity to retract what its officers had done. Alessia, 348 Ill. App. 3d at 229.
Courts apply these exacting requirements because a more liberal application of the laches defense
against a government entity could impair the functioning of the government due solely to the
negligence or inattention of government officials, thereby adversely affecting the public. Van
Milligan, 158 Ill. 2d at 90.
¶ 19 The general rule in Illinois is that the defense of laches may not be asserted where a
complaint in quo warranto is filed and the public interest is involved. People ex rel. Phelps v.
Kerstein, 413 Ill. 333 (1952). However, in quo warranto actions seeking the ouster of public
officials, an exception is made if the defendant shows that, as a result of inexcusable delay and
public acquiescence, a judgment of ouster would result in great public inconvenience and
detriment. Price, 408 Ill. App. 3d 463; People ex rel. Barsanti v. Scarpelli, 371 Ill. App. 3d at
226, 235 (2007); see also People ex re. Hanrahan v. Village of Wheeling, 42 Ill. App. 3d 825, 840
(1976). In such cases, the public interest requires that laches be an available bar to the
proceedings. Hanrahan, 42 Ill. App. 3d at 840.
Id.
¶ 20 However, to prevail on a defense of laches, the office holder must show that the public
would suffer great detriment by his ouster, not that he himself would suffer such detriment. He
must show “concrete and definite evidence” that “significant public harm would result from an
ouster.” Hanrahan, 42 Ill. App. 3d at 841. The fact that the public voted for the office holder is
not enough to meet this showing. Price, 408 Ill. App. 3d 463. Allowing an office holder to meet
the showing of great public detriment merely by showing that he was elected would constitute an
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“exception that swallows the rule.” Id. Moreover, the mere fact that the individual has held the
office for a substantial period of time does not mean that his ouster would constitute a great
detriment to the public that would support a laches defense. See People ex rel. Fitzsimmons v.
Swailes, 101 Ill. 2d 459, 469 (1984) (ousting an official who improperly held dual offices for
approximately 12 years); Price, 408 Ill. App. 3d 463 (affirming the removal of an individual who
had held three incompatible positions for more than three years).
¶ 21 Generally, where laches is asserted against a government entity in a quo warranto
proceeding, courts have found “great public inconvenience and detriment” only when the relief
sought in the government’s lawsuit would impose substantial financial costs on the public or
cause disruptions to students or other personnel. Price, 408 Ill. App. 3d at 463-64; Scarpelli, 371
Ill. App. 3d at 235; Junior College District No. 526, 42 Ill. 2d at 139 (quo warranto action
challenging the incorporation of a school district and the annexation of another district was barred
by laches where the action was filed two years after the school district was formed, the financial
cost to the public would be substantial, and personnel and student disruption would take place);
People ex rel. Lindsey v. Board of Education, 3 Ill. 2d 159, 167 (1954) (permitting a laches
defense where a school district organization was challenged after a five-year delay, where there
was no excuse for the delay, and substantial public expense and student inconvenience would
result if the action were successful); People ex rel. Cherry Valley Fire Protection District v. City
of Rockford, 122 Ill. App. 2d 272, 277–78 (1970) (allowing a laches defense to a quo warranto
action challenging the City of Rockford’s annexation of certain property where the Board of
Education had already expended considerable funds to acquire and develop their site within the
annexed territory on the assumption that it was a part of the City of Rockford). Each of these
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cases involved “concrete and definite evidence” of “specific harm” to the public, whether in the
form of public expense or loss of services.
¶ 22 In this case, Ferrell argues that the State did not bring the instant quo warranto action until
twelve months after his candidacy became public and almost a year after he was elected and began
carrying out his duties, even though the information about his prior convictions was a matter of
public record. Ferrell argues that this delay was unreasonable and inexcusable. He further
contends that removing him from office at this time will cause great detriment to the public
because: (1) it will disrupt the functions of the Township; (2) it will force the people who elected
him to be served by an unelected successor; and (3) the impediment to his eligibility could be
removed if the governor grants his requested pardon.
¶ 23 These arguments fail. As an initial matter, Ferrell alleges nonaction by a government
official, not an affirmative act that induced some action on Ferrell’s part. As noted above, that is
insufficient support a claim of laches against a government actor. Alessia, 348 Ill. App. 2d at
229; City of Marengo, 335 Ill. App. 3d at 989.
¶ 24 Moreover, the State’s delay in bringing suit is largely attributable to Ferrell’s own
actions. In his candidacy form, Ferrell falsely represented that he was eligible to serve as a
trustee. The State claims that it discovered that Ferrell was ineligible approximately seven
months after his election, and Ferrell does not dispute that claim. The State filed its quo
warranto complaint approximately four months later. Regardless of when the discovery was
made, the State filed its complaint less than one year from the time Ferrell was elected. If this
were taken to support a laches defense, the State’s Attorney would be required to vet every
candidate for every office to ensure that he is eligible for the office he seeks. Under the
circumstances presented in this case, the State’s delay was not unreasonable.
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¶ 25 In addition, contrary to Ferrell’s argument, the mere fact that Ferrell was elected and that
he served in office for almost a year does not support a laches defense. Price, 408 Ill. App. 3d
463; Fitzsimmons, 101 Ill. 2d at 469. In any event, Ferrell cannot show that the public
acquiesced in his election and service as a Joliet Township Trustee because the public elected
him without knowing about his criminal convictions and his resulting ineligibility for office.
¶ 26 In sum, Ferrell has not demonstrated the type of significant, concrete harm to the public
that would support a defense of laches against the State’s quo warranto claim. The circuit court
correctly rejected Ferrell’s laches argument.
¶ 27 2. The Election Code
¶ 28 Ferrell argues that the Township Code violates the equal protection clauses of the
federal and Illinois constitutions by arbitrarily establishing stricter eligibility requirements for
township offices than for other elected offices. Specifically, Ferrell notes that the Township
Code categorically bars anyone convicted of a felony from serving as a township trustee,
without providing that a convicted felon might become eligible if he receives a pardon or other
restoration of rights as provided by law. By contrast, the Election Code bars only those
convicted of “infamous crimes,” (as opposed to any felony), and allows for a felon to become
eligible for elected office after receiving a pardon or other restoration of rights as provided by
law. Ferrell argues that the imposition of stricter eligibility requirements for those seeking
township offices is not supported by any rational basis, and is therefore unconstitutional.
¶ 29 We must avoid the adjudication of constitutional questions when a case can be decided
on other grounds. Beahringer v. Page, 204 Ill. 2d 363, 370 (2003) (“A court will consider a
constitutional question only where essential to the disposition of a case, i.e., where the case
cannot be determined on other grounds.”); see also People v. Jackson, 2013 IL 113986, ¶ 14
10
(“courts will address constitutional issues only as a last resort, relying whenever possible on
nonconstitutional grounds to decide cases”); Innovative Modular Solutions v. Hazel Crest
School District 152.5, 2012 IL 112052, ¶ 38; Marconi v. City of Joliet,
2013 IL App (3d)
110865, ¶ 16. We do not reach Ferrell’s equal protection argument because this case be decided
on other grounds. Even assuming arguendo that the stricter eligibility requirements imposed by
Township Code violate equal protection, Ferrell would be ineligible to serve as a township
trustee under the more lenient requirement of the Election Code (which apply to those seeking
“any office of honor, trust or profit”) because he was convicted of an “infamous crime” as
defined by the Election Code.
¶ 30 Section 29-15 of the Election Code provides that:
“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, has
received a restoration of rights by the Governor, or otherwise according to law.
Any time after a judgment of conviction is rendered, a person convicted of an
infamous crime may petition the Governor for a restoration of rights.” 10 ILCS
5/29-15 (2021).
¶ 31 Section 1-24 of the Criminal Code was repealed in 1987. However, [c]ourts reviewing
section 29–15 of the Election Code subsequent to the repeal of section 124–1 … have
continued to apply its definition of the term ‘infamous crime.’ ” Alvarez v. Williams, 2014 IL
App (1st) 133443, ¶ 10. Under former section 124–1, an “infamous crime” was defined to
include:
11
“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)).
¶ 32 Ferrell was convicted of the possession of a controlled substance with intent to deliver, a
Class 1 felony. Although the nature of the controlled substance is not entirely clear from the
parties’ briefs, it appears to have been cocaine. Ferrell’s criminal history data, which is
contained in the record on appeal, reflects that he was convicted of possession with intent to
deliver between 1 and 15 grams of a controlled substance in violation of section 401(c)(2) of the
Controlled Substances Act (720 ILCS 570/401(c)(2) (West 2008). That section criminalizes the
possession of 1 gram or more but less than 15 grams of “any substance containing cocaine,” and
classifies this offense as a Class 1 felony. Id. At the time Ferrell was convicted, cocaine was
defined as a “narcotic drug” under the Criminal Code. 720 ILCS 570/102(aa)(4) (West 2010).
(It still is today, but under a different subsection.) As noted above, former section 124-1
characterized the sale of narcotic drugs as an “infamous crime.” The question before us is
whether the possession with intent to deliver a narcotic drug is sufficiently like the sale of a
narcotic drug to qualify as an “infamous crime” under former section 124-1.
¶ 33 We hold that it is. The possession of narcotic drugs with the intent to sell them is simply
the precursor to the actual sale. Both crimes involve the same criminal intent. The only
difference is that a defendant charged with possession with intent to deliver was caught before
he could achieve his objective by making the sale. That fact has no bearing on the defendant’s
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criminal intent or upon the gravity of the offense. Moreover, possession with intent to deliver is
as damaging to society as actual delivery because only a small fraction of persons who possess
with intent to sell will be caught before they sell the drugs. Accordingly, is not surprising that
the Controlled Substances Act groups these offenses together in the same section and imposes
the same penalties for each offense. See 720 ILCS 570/401(West 2022). In determining the
gravity of a drug offense, the legislature draws no distinction between the manufacture,
delivery, or possession with intent to deliver. Id. We see no reason to depart from the
legislature’s considered judgment on this issue.
¶ 34 Further, under the common law, crime is “infamous” if it involves moral turpitude.
Williams, 2014 IL App (1st) 133443, ¶ 10. For many of the reasons set forth above, courts in
Illinois and in several other jurisdictions have held or implied that possession with intent to
deliver narcotic drugs, including cocaine, is a crime involving moral turpitude. See, e.g.,
Fortman v. Aurora Civil Service Comm’n, 37 Ill. App. 3d 548, 551 (1976) (“illegal trafficking
in narcotics has been universally held to involve moral turpitude”) (collecting cases); In re
Fortunado Mendes, 598 A.2d 168, 169 (D.C. App. 1991) (ruling that possession with intent to
distribute cocaine is a crime involving moral turpitude per se.); Portaluppi v. Shell Oil Co., 684
F. Supp. 900, 904 n.13 (E. D. Va. 1988) (“Virtually all courts agree that narcotics possession
with intent to distribute is a crime involving moral turpitude.”)
¶ 35 In any event, even if the drug at issue were not a “narcotic drug” (and therefore not
included within the scope of any crime listed as “infamous” in section 124-1), we would still
conclude that the possession of a controlled substance with intent to deliver is an infamous
crime. “The determination of what constitutes an infamous crime, insofar as it effects a vacancy
in office, is not an exclusive legislative function, but is subject to judicial decision in the light of
13
the common law as it existed when the constitution was adopted.” People ex rel. Keenan v.
McGuane, 13 Ill. 2d 520 (1958); see also People ex rel. Symonds v. Gualano,
97 Ill. App. 2d
248 (1968). Under the common law, a felony is infamous “when it is inconsistent with
commonly accepted principles of honesty and decency, or involves moral turpitude.” Williams,
2014 IL App (1st) 133443, ¶ 10. The possession with intent to deliver any controlled substance
is dishonest, indecent and involves moral turpitude. As noted above, there is no principled
moral distinction between possessing illegal drugs with intent to sell and the actual sale of such
drugs. Both involve the concealment of and trafficking in harmful, addictive, and potentially
deadly illegal substances that cause great suffering and impose enormous costs on society, both
economically and socially.
¶ 36 Moreover, although it is not controlling of our analysis, our conclusion accords with the
legislature’s purpose in enacting the Controlled Substances Act. The Controlled Substances Act
criminalizes the possession with intent to deliver various non-narcotic controlled substances, in
recognition of “the rising incidence in the abuse of drugs and other dangerous substances and its
resultant damage to the peace, health, and welfare of the citizens of Illinois.” 720 ILCS
570/100. The stated purpose of the Act is to provide a system of control over the distribution
and use of controlled substances which will more effectively limit access to such substances and
deter the unlawful and destructive abuse of such substances. As noted, the Controlled
Substances Act applies to all controlled substances, including non-narcotic controlled
substances.
¶ 37 Ferrell argues that his 2010 felony convictions, including his conviction for possession
with intent to deliver a controlled substance, were not “infamous” because the circumstances of
his arrest and his tenuous connection with the illegal substances at issue suggest otherwise.
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However, while these considerations might be relevant to mitigate Ferrell’s sentence, they have
no bearing on the nature and gravity of the of the crimes of which he was convicted. “Ínfamy
arises because of the nature of the crime,” not the punishment. Because we hold that the
unlawful possession with intent to deliver a controlled substance is, by nature, infamous, we do
not need to consider the circumstances of Ferrell’s arrest or the conduct that gave rise to the
charge. Ferrell pleaded guilty to possession with intent to deliver a controlled substance and
was convicted. The crime is infamous categorically, not because of the circumstances of the
arrest or the facts supporting the charge.
¶ 38 Ferrell further notes that the State has consistently argued that the Township Code, not
the Election Code, governs his eligibility to serve as a Township Trustee. The State initially
brought its claims under both the Township Code and the Election Code, but it withdrew its
claim under the Election Code during the circuit court proceedings. Accordingly, the circuit
court’s decision was not based on the Election Code, and the court did not make a finding as to
whether Ferrell had been convicted of an infamous crime under the Election Code.
¶ 39 This does not affect our analysis. The State made arguments regarding the Election
Code in its initial brief on appeal, including the claim that Ferrell was ineligible to hold office
under the Election Code because he had been convicted of infamous crimes. After oral
argument, we ordered the parties to submit supplemental briefs on the infamous crime issue
under the Election Code, which they did. Thus, the issue was squarely before us. In any event,
we could have decided the appeal under the Election Code even if we had not ordered
supplemental briefing on the issue. “It is well established that an appellee may argue in support
of the judgment on any basis which appears in the record” (Studt v. Sherman Health Systems,
2011 IL 108182951, ¶ 48 (Karmeier, J. specially concurring), citing Hayes v. Board of Fire &
15
Police Commissioners, 230 Ill. App. 3d 707, 710 (1992)), and an appellate court may affirm a
trial court's judgment on any grounds which the record supports (Water Tower Realty Co. v.
Fordham 25 E. Superior, L.L.C., 404 Ill. App. 3d 658, 665 (2010)), even where those grounds
were not argued by the parties (Studt, 2011 IL 108182951, ¶ 48 (Karmeier, J. specially
concurring); see also Redd v. Woodford County Swine Breeders, Inc., 54 Ill. App. 3d 562, 565
(1977)).
¶ 40 The State argues that Ferrell may not bring his constitutional claim because he failed to
give proper notice of that claim to the Attorney General. Because we have declined to reach
Ferrell’s equal protection claim, we do not need to address this argument. Contrary to the
dissent’s suggestion, Ferrell’s failure to provide timely notice of his constitutional claim does
not obviate our analysis under the Election Code. As noted above, both Ferrell and the State
raised arguments under the Election Code. In his supplemental brief, Ferrell argued that he
would be eligible to obtain a restoration of rights and to serve as a township trustee under the
Election Code because he has not been convicted of an “infamous crime.” He further contended
that a pardon by the Governor would apply retroactively to the time he assumed office. These
claims arise under state law and do not challenge the constitutionality of a statute. Rule 19 does
not require Ferrell to give notice of such claims to the Attorney General. In any event, the
failure to provide timely notice of a constitutional claim to the Attorney General is not a
jurisdictional defect, and we have the discretion to excuse it. Village of Lake Villa v. Stokovich,
211 Ill. 2d 106, 118-19 (2004). Excusing untimely notice is particularly appropriate where, as
here, the Attorney General has received notice of the claim before the appellate court
proceedings have concluded and has not participated in the litigation. Id. at 119. In such cases,
the purpose of Rule 19 has been served. Id.
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¶ 41 In addition, contrary to the dissent’s suggestion, People by Foxx v. Agpawa, 2018 IL
App (1st) 171976 and People v. Hofer,
363 Ill. App. 3d 719 (2006) do not defeat Ferrell’s
constitutional claim. Neither case involves the Township Code, and neither addresses the
constitutional issue presented in this case. In any event, we properly chose not to address
Ferrell’s equal protection claim because the case can be decided on nonconstitutional grounds.
¶ 42 3. Retroactive Application of a Pardon
¶ 43 Ferrell argues that we should stay this appeal until Governor Pritzker acts on Ferrell’s
petition for a pardon. Ferrell maintains that, if the Governor pardons his prior convictions, his
restoration of rights would apply retroactively to the time Ferrell took the oath of office, thereby
rendering him eligible to continue serving as a Trustee of Joliet Township under the Election
Code. Ferrell raised this claim below both as an “affirmative defense” and as a basis for
requesting the circuit court to stay the action.
¶ 44 We reject Ferrell’s argument and decline his request for stay. As the circuit court
correctly ruled, Ferrell’s argument on this issue does not raise a recognized affirmative defense
and is not a basis for defeating summary judgment. Nor is it reason to stay this appeal. As the
circuit court noted, there is no way of knowing when or if Ferrell’s pardon petition will be acted
upon. Even if a pardon is ultimately granted, it is unknown whether the Governor will apply the
pardon retroactively. In essence, Ferrell seeks an indefinite stay based on his speculation that
his pardon application will be (1) acted upon, (2) granted, and (3) applied retroactively. We
will not grant a stay based upon such speculation.
¶ 45 We also decline to address Ferrell’s contention that any future pardon would apply
retroactively. The Governor has not issued a pardon yet, and there is no way to know whether
he ever will. By asking us to determine the legal effect that a potential pardon might have on
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this case, Ferrell is asking us to give an advisory opinion or legal advice as to a future event that
has not yet occurred, and may never occur. It would be improper to provide such advice.
Beahringer, 204 Ill. 2d at 374 -775; Hertz Corp. v. City of Chicago,
2015 IL App (1st) 123210,
¶ 47, reversed on other grounds,
2017 IL 119945 (declining to address a “speculative” argument
and stating that “we will not issue an advisory opinion or give legal advice as to a potential
future event”).
¶ 46 CONCLUSION
¶ 47 The judgment of the circuit court of Will County is affirmed.
¶ 48 Affirmed.
¶ 49 JUSTICE McDADE, specially concurring:
¶ 50 I agree that the Will County circuit court’s decision in this case must be affirmed. I write
separately because I do not join in the majority’s analysis of Ferrell’s equal protection argument.
¶ 51 Even if the majority is correct that Ferrell’s conviction for the inchoate crime of possession
of a controlled substance with intent to deliver is tantamount to the actual sale of narcotics and
thus constitutes an “infamous crime,” there is no reason to undertake that analysis. Illinois
Supreme Court Rule 19 requires, in relevant part, that a party claiming a state statute is
unconstitutional must give the Attorney General notice of such a claim. Ill. S. Ct. R 19 (eff. Sept.
1, 2006). It is undisputed in this case that Ferrell did not provide notice to the Attorney General
prior to the case being decided by the circuit court. While Ferrell did provide notice after that
point, such notice cannot possibly be deemed timely. Thus, he has forfeited his equal protection
argument. Forfeiture aside, similar equal protection challenges have already been rejected by
other courts. See People by Foxx v. Agpawa, 2018 IL App (1st) 171976; People v. Hofer,
363 Ill.
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App. 3d 719, 724 (2006) (holding that statutes prohibiting convicted felons from holding
municipal office were constitutional).
¶ 52 Lastly, while I acknowledge that the majority’s analysis of Ferrell’s pardon-based
argument is sufficient to affirm the circuit court’s ruling on that issue, I believe there is a more
appropriate basis upon which to reject that argument. The statute applicable in this case, section
55-6 of the Township Code, states, in relevant part, that a person is ineligible to hold an elective
municipal office if, at the time the oath is taken, the person had been convicted of a felony. 65
ILCS 200/55-6 (West 2020). Even if Ferrell’s petition for a pardon is granted, it would not change
the fact that he still had the felony convictions at the time he took the oath to serve as Joliet
township trustee and therefore was ineligible. See, e.g., Patterson v. Dykes, 804 N.E. 2d 849, 853
(Ind. Ct. App. 2004).
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