Larry D. Sapp v. KIMBERLY FOXX , Individually and in her official capacity

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2502
LARRY D. S APP ,
Plaintiff-Appellant,
v.
K IMBERLY F OXX , Individually and in her official capacity,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:22-cv-05314 — Edmond E. Chang, Judge.
____________________
A RGUED M ARCH 28, 2024 — DECIDED J ULY 3, 2024
____________________
Before BRENNAN , S CUDDER , and LEE, Circuit Judges.
S CUDDER , Circuit Judge. Like many other states, Illinois
bars certain felons from holding public office. Before us is a
constitutional challenge to two such statutes, which the Cook
County State’s Attorney’s Office used to oust Larry Sapp from
his position on the Sauk Village Board of Trustees. Sapp con-
tends that by barring him from public service—and by de-
priving him of the income a career in public service would
generate—these laws violate the Cruel and Unusual

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2 No. 23-2502
Punishment and Excessive Fines Clauses of the Eighth
Amendment to the U.S. Constitution. We do not reach the
merits of those contentions, however, because they are fore-
closed by Illinois principles of collateral estoppel and res judi-
cata. Accordingly, we affirm the dismissal of Sapp’s com-
plaint.
I
A
Larry Sapp is an Army veteran with an admirable history
of service to the nation. He is also a victim of sexual assault.
During basic training in 1975, Sapp was raped by several of
his fellow servicemembers. The trauma of that event followed
Sapp long after he left the military. For years, his mental
health struggles went untreated. And so Sapp turned to ille-
gal drugs to cope. That path led to felony drug convictions in
1988 and 1998 for manufacturing controlled substances in vi-
olation of Illinois law, as well as a stint in state prison.
Sapp left prison resolved to turn his life around. With the
help of mental health treatment, he overcame his addiction,
came to grips with his past, and set course on a life of com-
munity service. In the years since his recovery, Sapp has
founded two non-profit organizations and become a mentor
to others struggling with addiction and post-traumatic stress
disorder. By any measure, he has become a productive citizen
and a respected member of his community.
B
In 2021 the people of Sauk Village elected Sapp to a four-
year term on the Village’s Board of Trustees. Sapp ran for the
post believing in good faith that he was eligible to hold public
office, despite his criminal history. And for several months,

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No. 23-2502 3
he served without incident. But in time Sapp’s felony convic-
tions came to the attention of the Cook County State’s Attor-
ney’s Office, which filed a so-called quo warranto action
against Sapp in Cook County Circuit Court. See People of Illi-
nois v. Sapp, No. 22-CH-02567.
The purpose of a quo warranto proceeding is to “achieve
the ouster of a person who is illegally occupying a public of-
fice.” Goral v. Dart, 181 N.E.3d 736, 753–54 (Ill. 2020). Upon
proof that a person is ineligible to hold a particular position,
an appropriate court may enter an order removing the person
from office. See 735 ILCS 5/18-108.
The State’s Attorney’s Office’s complaint identified two Il-
linois statutes it believed barred Sapp from continued service
as a Board Trustee: 10 ILCS 5/29-15 and 65 ILCS 5/3.1-10-5(b).
The first of these statutes is section 29-15 of the Illinois Elec-
tion Code, which prohibits
[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, …
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 Gov-
ernor, or otherwise according to law.
10 ILCS 5/29-15.
The second is section 3.1-10-5(b) of the Illinois Municipal
Code, which provides that
[a] person is not eligible to take the oath of office
for a municipal office if that person is, at the
time required for taking the oath of office, in

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4 No. 23-2502
arrears in the payment of a tax or other indebt-
edness due to the municipality or has been con-
victed in any court located in the United States
of any infamous crime, bribery, perjury, or other
felony, unless such person is again restored to
his or her rights of citizenship that may have
been forfeited under Illinois law as a result of a
conviction, which includes eligibility to hold
elected municipal office, by the terms of a par-
don for the offense, has received a restoration of
rights by the Governor, or otherwise according
to law.
65 ILCS 5/3.1-10-5(b).
Represented by counsel, Sapp did not dispute that his
drug felonies triggered application of these statutes. (He did
appear to argue that a different statute, 730 ILCS 5/5-5-5, re-
stored his right to run for office, but the Cook County Court
rejected that position and Sapp has not pressed it here.) Nor
did he contest that his position on the Sauk Village Board of
Trustees qualified as an “office of honor, trust, or profit” un-
der the Election Code and as a “municipal office” under the
Municipal Code. Sapp instead attacked the constitutionality
of the statutes, arguing that enforcing either against him
would violate the Eighth Amendment’s Excessive Fines
Clause by indefinitely depriving him of the economic oppor-
tunity to earn a living as a public servant. Sapp reasoned that
such a result would be tantamount to asset forfeiture, grossly
disproportionate to the severity of his drug felonies.
The Cook County Court disagreed, determining that en-
forcing the statutes against Sapp would not offend the Exces-
sive Fines Clause because the “the deprivation of future

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No. 23-2502 5
salary” does not constitute a “fine” within the meaning of the
Eighth Amendment. The State of Illinois, after all, would not
receive anything of value—whether in cash or in kind—by
ousting Sapp from office. Sapp’s removal would mean only
that someone else would receive the $600 stipend Sauk Vil-
lage had previously paid Sapp each month. Having rejected
Sapp’s sole defense to removal, the state court held that Sapp
was ineligible to serve as a Board Trustee and entered an or-
der removing him from his position.
C
Two days before the Cook County Court issued that order,
Sapp commenced this suit against Illinois Governor J.B. Pritz-
ker and State’s Attorney Kimberly Foxx in federal court.
Sapp’s initial aim was to forestall his removal from office by
securing either a declaratory judgment that the State’s pro-
posed application of 10 ILCS 5/29-15 and 65 ILCS 5/3.1-10-5(b)
would violate the Eighth Amendment or an injunction requir-
ing the Governor to issue him a pardon.
But Sapp’s litigation strategy evolved following his re-
moval from office. He remained committed to returning to
service on the Sauk Village Board of Trustees, but Illinois law
and the State’s Attorney’s Office stood in the way. When Sapp
filed a statement with the Village declaring his intent to run
anew for an open Board seat, the State’s Attorney’s Office
asked the Cook County Court to hold him in contempt. The
court denied that motion, explaining that its order had re-
moved Sapp only from the specific position he occupied at the
time of the quo warranto action. But Sapp withdrew from the
race nonetheless due to what he saw as “relentless and ag-
gressive” efforts by the State’s Attorney’s Office to enforce 10
ILCS 5/29-15 and 65 ILCS 5/3.1-10-5(b) against him.

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6 No. 23-2502
To clear a path forward, Sapp filed an amended complaint
seeking to bar the Cook County State’s Attorney from enforc-
ing either statute against him in future elections. As he had in
both the Cook County Court and his initial federal complaint,
Sapp insisted that the application of either Illinois statute to
him would violate the Eighth Amendment. Sapp gave two
reasons for this conclusion. He first renewed his contention,
already rejected by the Cook County Court, that enforcement
of the statutes would violate the Excessive Fines Clause by
depriving him of the opportunity to earn a salary as a public
servant.
To that Sapp added a new argument: that enforcing the
statutes against him would violate the Cruel and Unusual
Punishment Clause by inflicting a criminal punishment—
debarment from public service—grossly disproportionate to
his drug felonies. See Rummel v. Estelle, 445 U.S. 263, 271
(1980) (explaining that “the Eighth Amendment prohibits
imposition of a sentence that is grossly disproportionate to
the severity of [a defendant’s] crime”); see also Ewing v.
California, 538 U.S. 1, 21 (2003) (same). In this way, then,
Sapp’s federal lawsuit evolved from a last-ditch effort to
remain in public office into a vehicle for winning election a
second time.
The State’s Attorney moved to dismiss Sapp’s amended
complaint under Federal Rule of Civil Procedure 12(b)(6). Alt-
hough disagreeing with the merits of Sapp’s position, the
State’s Attorney principally sought dismissal on grounds of
collateral estoppel and res judicata. The State’s Attorney em-
phasized that the Cook County Court had rejected Sapp’s ex-
cessive fines argument just six months before, in an action in

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No. 23-2502 7
which Sapp had every opportunity to raise his Cruel and Un-
usual Punishment Clause argument.
The district court granted the State’s Attorney’s motion on
the merits (as well as on a few other grounds we need not dis-
cuss) without reaching the question of preclusion. Conclud-
ing that 10 ILCS 5/29-15 and 65 ILCS 5/3.1-10-5(b) are civil—
rather than penal—in nature, the district court held that the
Eighth Amendment’s Cruel and Unusual Punishment Clause
does not apply. The district court then rejected Sapp’s “argu-
ment that the Excessive Fines Clause applies to the loss of po-
tential future earnings,” agreeing with the conclusion of the
Cook County Court.
II
A
Sapp challenges these rulings on appeal. For her part, the
State’s Attorney emphasizes that the appeal lends itself to
swift resolution on the non-constitutional grounds of collat-
eral estoppel and res judicata. We agree.
In an ordinary case, this dispositional ground would not
be before us. That is because collateral estoppel and res judi-
cata are affirmative defenses that generally must be asserted
by defendants in their answer to the plaintiff’s complaint and
then raised in either a motion for judgment on the pleadings,
see Fed. R. Civ. P. 12(c), or summary judgment, see Fed. R.
Civ. P. 56(a). See Walczak v. Chi. Bd. of Educ., 739 F.3d 1013,
1016 n.2 (7th Cir. 2014); H.A.L. NY Holdings, LLC v. Guinan,
958 F.3d 627, 631–32 (7th Cir. 2020); Hicks v. Midwest Transit,
Inc., 479 F.3d 468, 470 (7th Cir. 2007). Although this case did
not proceed on those lines, the parties fully litigated the issue
in the district court and have continued to do so on appeal.

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8 No. 23-2502
Even more, we may affirm “on any ground supported by the
record so long as the issue was raised and the non-moving
party had a fair opportunity to contest the issue in the district
court.” Locke v. Haessig, 788 F.3d 662, 666 (7th Cir. 2015).
In these circumstances, where the parties have litigated
the preclusion issue not once but twice, we are comfortable
resolving the case on that ground. See Carr v. Tillery, 591 F.3d
909, 913 (7th Cir. 2010) (reaching the same conclusion under
similar circumstances); see also H.A.L. NY Holdings, LLC, 958
F.3d at 632. That course accords with our general obligation
to refrain from unnecessary forays into constitutional law. See
Jean v. Nelson, 472 U.S. 846, 854 (1985) (“’Prior to reaching any
constitutional questions, federal courts must consider non-
constitutional grounds for decision.’” (quoting Gulf Oil Co. v.
Bernard, 452 U.S. 89, 99 (1981))); see also Ashwander v. Tenn.
Valley Auth., 297 U.S. 288, 341 (1936) (Brandeis, J., concurring).
B
We apply Illinois law to determine whether preclusion
principles bar Sapp’s federal claims. That conclusion follows
from 28 U.S.C. § 1738, which requires us to give the Cook
County Court’s quo warranto judgment “the same preclusive
effect it would have in” an Illinois court. Long v. Shorebank
Dev. Corp., 182 F.3d 548, 560 (7th Cir. 1999); Walczak, 739 F.3d
at 1016; see also Marrese v. Am. Acad. of Orthopaedic Surgeons,
470 U.S. 373, 380 (1985) (“Section 1738 embodies concerns of
comity and federalism that allow the States to determine, sub-
ject to the requirements of the statute and the Due Process
Clause, the preclusive effect of judgments in their own
courts.”).

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No. 23-2502 9
Recall again the procedural history: Sapp used the quo war-
ranto action in the Cook County Court as an opportunity to
challenge the constitutionality of 10 ILCS 5/29-15 and 65 ILCS
5/3.1-10-5(b) under the Excessive Fines Clause of the Eighth
Amendment. The state court rejected the merits of Sapp’s po-
sition in a reasoned opinion that followed full briefing by both
sides. That legal ruling was necessary to the court’s ultimate
judgment ousting Sapp from public office.
Our task on appeal is to decide what preclusive effect Illi-
nois law gives to that judgment in the context of the Eighth
Amendment claims Sapp presses in this federal action.
As for Sapp’s claim under the Excessive Fines Clause, the
answer is straightforward. The Illinois doctrine of collateral
estoppel “precludes a party from relitigating an issue decided
in a prior proceeding.” Am. Family Mut. Ins. Co. v. Savickas, 739
N.E.2d 445, 451 (Ill. 2000). For the doctrine to apply, three
things must be true: “(1) the issue decided in the prior pro-
ceeding must be identical to the one in the current suit; (2) the
prior adjudication must have been a final judgment on the
merits; and (3) the party against whom the estoppel is as-
serted must have been a party to, or must be in privity with a
party to, the prior adjudication.” Hope v. Clinic for Women, Ltd.
v. Flores, 991 N.E.2d 745, 764 (Ill. 2013); see also Herzog v. Lex-
ington Twp., 657 N.E.2d 926, 930 (Ill. 1995) (applying the same
three-factor test).
All three requirements are met here. Sapp was a party to
the quo warranto action. That litigation resulted in a final judg-
ment on the merits removing Sapp from his position on the
Sauk Village Board. And necessary to that judgment was the
Cook County Court’s rejection of the precise excessive fines
argument Sapp presses in his amended federal complaint. So

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10 No. 23-2502
we have no trouble concluding that Illinois’s doctrine of col-
lateral estoppel precludes Sapp from relitigating that argu-
ment in this suit
That leaves Sapp’s claim under the Cruel and Unusual
Punishment Clause. The State’s Attorney suggests that Sapp
presented this argument to the Cook County Court. We
disagree. Although Sapp did touch on proportionality in his
state court brief—describing 10 ILCS 5/29-15 and 65 ILCS
5/3.1-10-5(b) as “excessive” in relation to his drug felonies—
he appeared to do so in the context of explaining why the
indefinite forfeiture of future earnings in his case constituted
an excessive fine. Sapp’s discussion of proportionality took
place in a sub-heading expressly dedicated to establishing
that those statutes imposed an excessive fine. Nowhere did he
rely on case law that would support an argument under the
Cruel and Unusual Punishment Clause. So we cannot say that
the issue was raised, let alone decided, in the state court
litigation.
But that does not mean Sapp is free to raise the claim in
this federal case. Under the doctrine of res judicata—known as
claim preclusion in many other jurisdictions—“a final judg-
ment on the merits rendered by a court of competent jurisdic-
tion acts as a bar to a subsequent suit between the parties in-
volving the same cause of action,” regardless of whether the
second proceeding involves new arguments not passed upon
in the initial action. River Park, Inc. v. City of Highland Park, 703
N.E.2d 883, 889 (Ill. 1998). Put another way, where a second
suit involves “the same cause of action” as an earlier one be-
tween the same parties, the bar of res judicata prohibits parties
in the second suit from raising a “matter[] that could have
been decided in [the first] suit.” Id.

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No. 23-2502 11
As with collateral estoppel, Illinois law tells us that three
things must be true for res judicata to bar subsequent litigation:
(1) “a final judgment on the merits rendered by a court of
competent jurisdiction,” (2) “an identity of cause of action,”
and (3) “an identity of parties or their privies.” Id. There can
be no doubt that the first and third requirements are satisfied
here. The Cook County Court entered a final judgment on the
merits in the quo warranto action, and it had jurisdiction to do
so. See 735 ILCS 5/18-108. And although the State’s Attorney
brought the quo warranto action in the name of the people of
Illinois (in short, the State)—whereas here she is a defendant
in her personal capacity—Illinois law deems state officers,
like State’s Attorneys, to be in privity with the state itself. See
Licari v. City of Chicago, 298 F.3d 664, 667 (7th Cir. 2002);
Ingemunson v. Hedges, 549 N.E.2d 1269, 1271–72 (Ill. 1990).
Whether res judicata bars Sapp’s claim under the Cruel and
Unusual Punishment Clause turns therefore on the second
factor—on there being an “identity of cause of action” be-
tween this federal lawsuit and the quo warranto action in the
Cook County Court.
Illinois law does not use “cause of action” here in its tech-
nical sense, as denoting, for instance, the source of a party’s
authority to sue or the source of the legal rights sought to be
vindicated. The phrase instead carries a “transactional”
meaning. See River Park, 703 N.E.2d at 893; see also Village of
Bartonville v. Lopez, 77 N.E.3d 639, 650 (Ill. 2017). Separate
claims constitute a single cause of action under Illinois law if
“they arise from a single group of operative facts.” River Park,
703 N.E.2d at 893. This is so “regardless of whether they assert
different theories of relief.” Id. That Sapp seeks something dif-
ferent in this action (declaratory and injunctive relief clearing
a path to future election) than he sought in the Cook County

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12 No. 23-2502
Court (the right to remain in office) is thus of little moment.
What matters is whether each proceeding arose from the same
core of operative facts.
The Illinois Supreme Court has stressed time and again
that this is a flexible inquiry that courts should approach
“‘pragmatically, giving weight to such considerations as
whether the facts are related in time, space, origin, or motiva-
tion, whether they form a convenient trial unit, and whether
their treatment as a unit conforms to the parties’ expectations
or business understanding or usage.’” First Midwest Bank v.
Cobo, 124 N.E.3d 926, 930 (Ill. 2018) (quoting River Park, 703
N.E.2d at 893 (in turn quoting Restatement (Second) of Judg-
ments § 24(2) (1982))).
Applying these principles to the unusual facts of this case,
three considerations lead us to conclude that Sapp’s federal
lawsuit arises out of the same group of operative facts as did
the State’s Attorney’s quo warranto action.
First, the two cases align closely in time, origin, and moti-
vation. The federal action began during the quo warranto liti-
gation, and by Sapp’s own admission its purpose was to bring
the state suit to a favorable end. Both proceedings thus trace
their origins to the State’s Attorney’s effort to remove Sapp
from the Sauk Village Board of Trustees. And although the
remedial scope of the federal suit evolved after Sapp was re-
moved from office, the suit nonetheless remained at its core a
dispute over the State’s Attorney’s Office’s efforts to bar
Sapp’s future service on the Sauk Village Board of Trustees.
Second, in the brief interlude between the end of the quo
warranto litigation and the present appeal, the essential facts
have remained unchanged. Sapp’s criminal record remains

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No. 23-2502 13
the same, and 10 ILCS 5/29-15 and 65 ILCS 5/3.1-10-5(b) con-
tinue to apply to those convictions. The only difference is that
Sapp is no longer a sitting Sauk Village Trustee. On these
facts, this lawsuit represents nothing less than a request for a
second bite at the apple—an effort to bring a better and per-
haps stronger version of the defense that fell short in the Cook
County Court. Opening the courthouse door to such litigation
risks far-reaching consequences. If a candidate could over-
come the strictures of res judicata merely by pointing to the
fact that he is re-running for an old position, candidates for
election could relitigate legal challenges every election cycle
without meaningful limit. We find it most unlikely the Illinois
Supreme Court would approve of such a practice, at least
where nothing has changed from one election cycle to the
next.
Third, Sapp’s own conduct in the Cook County litigation
shows that he understood that then was the time to challenge
the constitutionality of 10 ILCS 5/29-15 and 65 ILCS 5/3.1-10-
5(b). Rather than contest the applicability of the statutes to his
criminal history or to the position of Sauk Village Board Trus-
tee, Sapp raised a constitutional defense. Holding Sapp to the
arguments he made in that proceeding is hardly unreasonable
given his strategic choice to invoke the protection afforded to
him by the Eighth Amendment to the U.S. Constitution. Once
he made that decision, Illinois law obligated him to bring all
arguments to bear on that issue. See Village of Bartonville, 77
N.E.3d at 650 (“Res judicata embraces all grounds of recovery
and defense involved and which might have been raised in
the first action.”); Lake v. Tomes, 90 N.E.2d 774, 777 (Ill. 1950)
(same).

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14 No. 23-2502
Sapp’s sole argument against preclusion rests on the Cook
County Court’s refusal to hold him in contempt for pursuing
reelection to the Sauk Village Board of Trustees. Stressing that
the Cook County Court “clarified” that the scope of its order
was limited to removing him from his position at the time—
not to bar him from standing for election in the future—Sapp
insists that he can relitigate constitutional objections to 10
ILCS 5/29-15 and 65 ILCS 5/3.1-10-5(b) in this federal case.
That position misses the mark. The Cook County Court’s rul-
ing did not opine on the preclusive effect that its rulings might
have in future cases. It responded to the very different ques-
tion whether Sapp’s efforts to win reelection to the Board vi-
olated the terms of its order ousting Sapp from office.
At the end of the day, we conclude that this suit—
including Sapp’s claim under the Cruel and Unusual
Punishment Clause—arises out of the same group of
operative facts as did the State’s Attorney’s quo warranto
action in Cook County Court. The two cases thus constitute
the same “cause of action” under Illinois law, with the
consequence being that Illinois’s doctrine of res judicata bars
Sapp from raising arguments in this suit that were available
to him before the Cook County Court. When Sapp decided to
challenge the constitutionality of 10 ILCS 5/29-15 and 65 ILCS
5/3.1-10-5(b) in state court, it was incumbent on him to raise a
complete defense.
C
Our conclusion is limited. We are not saying that Sapp is
forever barred from challenging these statutes going forward.
The passage of time may bring with it changed circumstances
that alter the analysis under Illinois law. We note, too, that
Illinois law recognizes a number of exceptions to res judicata

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No. 23-2502 15
that we do not consider because Sapp did not raise them. See
Tebbens v. Levin & Conde, 107 N.E.3d 263, 285 (Ill. App. Ct.
2018) (“Where [a] defendant[] … establish[es] a prima facie
case for application of res judicata, it is [the plaintiff’s] burden
to establish the applicability of any exception.”); see also Ven-
turella v. Dreyfuss, 84 N.E.3d 386, 395 (Ill. App. Ct. 2017)
(same).
For today, all we hold is that given the close relationship
of the quo warranto action and this proceeding—in time,
origin, and purpose—Sapp may not raise constitutional chal-
lenges to 10 ILCS 5/29-15 and 65 ILCS 5/3.1-10-5(b) in this pro-
ceeding that were available to him in the quo warranto action.
For these reasons, we AFFIRM.

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