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SIXTH DIVISION
OCTOBER 10, 2003

Georgia Muldrow died in November 2001. She left a will which nominated her two sons,petitioner, Charles K Muldrow, and cross-petitioner, Ronald S. Muldrow, as co-executors. Thisinterlocutory appeal reaches us following the trial court's entry of an order denying Ronald's petitionto name him the sole executor and disqualify Charles from serving as executor. Ronald timely appealscontending that the trial court erred when it refused to disqualify Charles from serving as executorbecause he is a convicted felon. We reverse.

Georgia died on November 10, 2001. Charles filed a petition for letters of administrationalleging that Georgia left no will and requesting that letters of administration issue to him. Ronaldsubsequently filed a petition for probate of will and for letters testamentary. Ronald alleged thatGeorgia left a will nominating Ronald and Charles as co-executors. Ronald further alleged thatCharles was not qualified to act as executor because he was a felon.

On April 19, 2002, Ronald filed a motion to disqualify Charles as executor alleging thatCharles was convicted of murder in February 1973 and served a ten-year term of imprisonment. Ronald argued that Charles was not qualified to serve as executor as a result of the felony conviction. Charles responded arguing that he had "only one brush with the law and is not a criminal." Charlesargued that the trial court was required to consider his character, integrity, soundness of judgment,and general capacity to determine whether he was qualified to serve.

On May 31, 2002, the trial court conducted a hearing on Ronald's motion. The trial courtdenied Ronald's motion. In a written order, the trial court indicated that it based its decision on anapplication of the law in Estate of Roy, 265 Ill. App. 3d 99 (1994). The record on appeal does notcontain a report of proceedings for the hearing. Ronald filed a timely notice of appeal pursuant toSupreme Court Rule 304(b)(1) (155 Ill. 2d R. 304(b)(1)).

Initially we note that Charles has not filed a brief on appeal. However, we find that the issuesand record are relatively simple and we will address the merits of the appeal in accordance with thestandards of First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128 (1976). Further we note that Ronald has not met his burden, as the appellant, of providing this court with asufficiently complete record of the proceedings at trial. Ronald has not provided this court with areport of proceedings for the hearing on his motion, nor has he utilized one of the alternativesprovided by Supreme Court Rule 323 (166 Ill. 2d R. 323) and provided us with a bystander's reportor agreed statement of the facts. Generally, in the absence of such a record on appeal, a reviewingcourt will presume that the order entered by the trial court was in conformity with the law andsupported by a sufficient factual basis. See Midstate Siding & Window Co. v. Rogers, 204 Ill. 2d314, 319 (2003), citing Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984). However, this appealprimarily involves the interpretation of a statute. This is a question of law and the lack of a completerecord does not bar our review of the issue. See Midstate, 204 Ill. 2d at 319.

Ronald contends that Charles was disqualified from acting as executor by section 5/6--13(a)of the Probate Act of 1975 (the Probate Act) (755 ILCS 5/6--13(a) (West 2002)). Section 5/6--13(a)provides:

"Who may act as executor. (a) A person who has attained the age of 18 years and isa resident of the United States, is not of unsound mind, is not an adjudged disabled personas defined in this Act and has not been convicted of a felony, is qualified to act as executor." (Emphasis added.) 755 ILCS 5/6--13(a) (West 2002).

Ronald argues that the plain language of this statute disqualified Charles and that the trial court erredwhen it relied on the holding in Roy and considered additional factors.

In Roy, the reviewing court considered a similar provision of the Probate Act that disqualifiedfelons from serving as the guardians for disabled persons. In 1993, Marjorie and Luther Roy hadbeen married for 43 years. Luther had cared for Marjorie for years while her health deteriorated and,in 1992, he placed her in a nursing home. An employee of Catholic Charities subsequently filed apetition to adjudicate Marjorie disabled and to appoint Marjorie's daughter as guardian of her estate. Marjorie filed a petition to appoint Luther as her guardian. The trial court held that the respondent,Luther Roy, was precluded as acting as the guardian for his wife, Marjorie Roy, because he had beenconvicted of armed robbery in 1957 and dismissed Marjorie's petition. The trial court subsequentlyadjudicated Marjorie disabled and appointed her daughter guardian. The trial court did not allowLuther to present evidence of his qualifications. Luther appealed contending, inter alia, that thesection of the Probate Act which disqualified him as guardian violated the equal protection clause ofthe United States Constitution.

The reviewing court held that because the challenged provision of the Probate Act did notaffect a fundamental right or discriminate against a suspect class it was subject to rational basisreview. Roy, 265 Ill. App. 3d at 104. The Roy court further held that the statute was not faciallyunconstitutional because, "[a]ny distinction in the statute between convicted felons and nonfelons issufficiently justified by the State's interest in protecting the mentally disabled from neglect,exploitation and abuse." Roy, 265 Ill. App. 3d at 104. However, the reviewing court held that thestatute could be unconstitutional as applied because "it could be found that there is no rational basisfor treating a person with a 36-year old felony conviction differently from any other husband of 43years who seeks to be appointed as his wife's guardian upon her becoming disabled." Roy, 265 Ill.App. 3d at 105. The reviewing court remanded the cause for a hearing on Luther's fitness to serveas guardian, concluding:

"If on remand, Luther proves by a preponderance of the evidence that he is fit and that hisappointment would serve the best interest and welfare of Marjorie, then we would find thatthe Act was unconstitutionally applied and that Marjorie's choice of guardian should be given'due consideration.' " Roy, 265 Ill. App. 3d at 105.

In the case before us, we are faced with a similar issue, i.e., whether the limitation on felonsserving as executors contained in section 5/6--13 of the Probate Act violates equal protection. Wereview a trial court's determination regarding the constitutionality of a statute de novo. People exrel. Lumpkin v. Cassidy, 184 Ill. 2d 117, 123 (1998). When construing a statute, we must begin withthe presumption that the statute is constitutional, and the party challenging a statute has the burdenof clearly establishing any constitutional invalidity. Cassidy, 184 Ill. 2d at 123. Moreover, courts arenot empowered to determine whether the legislature acted wisely when it enacted a statute; instead,courts must limit their analysis to the issue of whether the legislature's action was constitutionallypermissible. Orr v. Edgar, 298 Ill. App. 3d 432, 438 (1998), citing Best v. Taylor Machine Works,179 Ill. 2d 367, 390 (1997).

"The essential test of equal protection is whether government deals with similarly situatedindividuals in a similar manner." In re K.L.P., 198 Ill. 2d 448, 466 (2002). Equal protection doesnot prohibit the State from enacting legislation that distinguishes between categories of people; rather,it forbids the State from enacting legislation that puts people into different categories on the basis ofcriteria that are wholly unrelated to the purpose of the legislation. City of Urbana v. Andrew N.B.,335 Ill. App. 3d 180, 186 (2002); see also Best, 179 Ill. 2d at 394. Where, as in the case before us,legislation does not affect a suspect class or a fundamental right, it is subject to a rational basis test. Cassidy, 184 Ill. 2d at 124. Under the rational basis test, we must ask whether the statutoryclassification is rationally related to a legitimate government interest. In re Estate of Jolliff, 199 Ill.2d 510, 520 (2002). "[I]f a court can reasonably conceive of circumstances which justifydistinguishing the class benefitted by the statute from the class outside its scope, the classification isconstitutional." Jolliff, 199 Ill. 2d at 520.

The statute at issue classifies those qualified to serve as executor on several bases, includingthe classification at issue, whether the person named as executor is a felon. Accordingly, the issuebefore us is whether we can conceive of circumstances that justify classifying individuals on that basis. See Jolliff, 199 Ill. 2d at 520. We believe the answer to this question is clear. An executor isentrusted with property to which others have claims and must safeguard that property and ultimatelydistribute it in accordance with the law. A convicted felon has demonstrated an inability to act withinthe confines of the law. This provides a more than adequate basis for the legislative determinationthat felons are not qualified to act as executors. On this issue, we agree with the reasoning of the Roycourt which found that a similar rationale supported the legislative determination that felons shouldnot act as guardians for disabled persons. See Roy, 265 Ill. App. 3d at 104. We find further supportfor such a determination in other cases which have rejected equal protection challenges to statutesthat limit a felons right to engage in otherwise lawful activities. See, e.g., People v. Jackson, 269 Ill.App. 3d 851 (1995) (possessing a firearm); Coles v. Department of Registration and Education, 59Ill. App. 3d 1046 (1978) (selling real estate). Therefore, we conclude that section 5/6--13 of theProbate Act does not violate equal protection because it disqualifies felons from acting as executors.

The Roy decision, upon which the trial court relied, however, went further and used an "asapplied" analysis to determine that the Probate Act violated equal protection. At this point ouranalysis must part company with that of the Roy court. The Roy court after determining that thechallenged provision of the Probate Act was not facially unconstitutional applied a second step to itsrational basis analysis. The Roy court inquired whether the circumstances of the case before it werethe circumstances envisioned by the legislature when it enacted the statute. Roy, 265 Ill. App. 3d at104-05. We believe that this represents an aberration in rational basis jurisprudence. The Roy courtrelied on a single case in support of this stage of its analysis, People v. Morrison, 223 Ill. App. 3d 176(1991). We have examined the Morrison decision and find that it, in turn, provides no citation toother authority supporting the "as applied" test it used. We have examined numerous cases in Illinoisapplying the rational basis test and have discovered no case outside the Roy-Morrison line that appliessuch an analysis. Instead, each of the cases we have examined terminates its analysis afterdetermining that the legislature had a reasonable basis for creating the classification contained in thestatute without considering further the unique circumstances presented by an individual case. See,e.g., Cassidy, 184 Ill. 2d at 127-28; People v McCormick, 332 Ill. App. 3d 491, 496 (2002).

It appears that the Roy court was attempting to remedy a perceived problem of overinclusionin the Probate Act. The Roy court held, in effect, that because Luther might have been a fit guardiandespite his felony conviction the statute was unconstitutional as applied to him. However, under therational basis test, a statute is not unconstitutional simply because it is imperfect. See Cassidy, 184Ill. 2d at 124, 127. As long as the legislative classification has a rational relationship to the State'sobjectives, it is valid even if it is to some extent overinclusive, underinclusive, or both. McCormick,332 Ill. App. 3d at 497, citing New York City Transit Authority v. Beazer, 440 U.S. 568, 592 n.39,59 L. Ed. 2d 587, 606-07 n.39, 99 S. Ct. 1355, 1369 n.39 (1979).

The Cassidy case provides an example of the proper analysis of an equal protection challengebased on overinclusion. In Cassidy, the State sued to enjoin the defendant from installing lawnsprinkler systems using laborers who were not licensed plumbers. The supreme court was presentedwith a challenge to the constitutionality of a provision of the Illinois Plumbing License Law (225ILCS 320/0.01 et seq. (West 1996)) that prohibited anyone other than a licensed plumber or licensedapprentice plumber from installing such systems. The supreme court recognized that the statute wasto some extent both underinclusive and overinclusive. See Cassidy, 184 Ill. 2d at 127. The supremecourt specifically noted that its opinion was not intended to "cast any aspersions" on the quality ofthe work performed by the defendant's company. Cassidy, 184 Ill. 2d at 127. The supreme court alsoobserved that the licensing requirement would not necessarily guarantee that consumers will alwaysreceive the safest or best-built lawn sprinkler systems. Cassidy, 184 Ill. 2d at 127. Although thelicensing requirement was imperfect the supreme court held that it was constitutional because theclassification had a rational basis. Cassidy, 184 Ill. 2d at 127-28.

The provision of section 5/6--13 that disqualifies felons may suffer from similar imperfection. There may be some felons, whose criminal acts are remote in time and who have sufficientlyrehabilitated themselves, who are deserving of the trust that must be placed in an executor. We makeno finding as to whether Charles falls into this category. On the other hand, there may be others wholack the integrity to serve as an executor, but who have never been convicted of a crime. Some mightargue that the Probate Act should contain an exception to its felon disqualification provision forfelons, who like Charles, in the case before us, or Luther, in the Roy case, have a felony convictionthat is remote in time, or who can demonstrate rehabilitation. However, the plain language of theProbate Act contains no such exception, and this court cannot write one into the statute under theguise of statutory construction. See Midstate Siding, 204 Ill. 2d at 320. We believe that the "asapplied" analysis used by the Roy court commits just such an error and represents an attempt to placea constitutional imprimatur on impermissible judicial legislation. Therefore, we decline to follow theunusual "as applied" equal protection analysis used in Roy.

Therefore, we conclude that section 5/6--13 is constitutional on its face. Further we concludethat an "as applied" analysis of the type used by the Roy court is unnecessary and inappropriate. Charles' status as a felon was not disputed at the trial level. The trial court was required to make noadditional determinations of fact and was not required to consider any additional factors. Therefore,we reverse the trial court's order denying Ronald's motion to disqualify Charles.

For the foregoing reasons the judgment of the circuit court of Cook County is reversed. Thismatter is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

O'MARA FROSSARD, P.J., and SMITH, J., concur.