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July 19, 1994


Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois. No. 93-P-49. Honorable Sheldon Reagan Judge, Presiding

Released for Publication August 22, 1994. As Corrected August 30, 1994.

Present - Honorable Peg Breslin, Justice, Honorable Tobias Barry, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Breslin

JUSTICE BRESLIN delivered the opinion of the court:

The petitioner, Deborah Dodt, filed a petition to adjudicate Marjorie Roy a disabled person and appoint Marjorie's daughter, Lois Kemp, to be guardian of her estate. Marjorie subsequently filed a petition to adjudicate disability and appoint her husband, Luther Roy, as guardian. Marjorie's petition was dismissed by the trial court pursuant to section 11a-5(a) of the Probate Act of 1975 (755 ILCS 5/11a-5(a) (West 1992)) (the Act) which precludes convicted felons from acting as guardians. After a hearing, the court appointed Lois Kemp as Marjorie's guardian. Luther appeals. *fn1

Luther Roy was convicted of two armed robbery charges in 1957. Luther and Marjorie have been married for 43 years. Marjorie had a daughter, Lois Kemp, from a previous marriage. Since 1985, Luther cared for Marjorie while her health increasingly deteriorated. In 1992, he placed Marjorie in a nursing home. In February 1993, the trial court granted a petition filed by Deborah Dodt, an employee of Catholic Charities, to have a temporary guardian appointed for Marjorie. Thereafter, Marjorie sought to vacate that order and filed a petition to appoint her husband as guardian. Therein, she alleged that Luther was the only person thoroughly familiar with her condition and the only person who fully knew her needs and desires. Dodt subsequently filed a motion to strike Marjorie's petition based on Luther's felony record. The court granted the motion and dismissed the petition. The next day, a hearing was held on Dodt's petition to have Kemp appointed as guardian. Luther was not allowed to present any evidence of his qualifications to act as guardian. Following the hearing, the trial court appointed Kemp as guardian of the person and estate of Marjorie Roy.

The statute at issue here provides:

"Who may act as guardian. (a) A person who has attained the age of 18 years, is a resident of the United States, is not of unsound mind, is not an adJudged disabled person as defined in this Act, and has not been convicted of a felony, and who the court finds is capable of providing an active and suitable program of guardianship for the disabled person is qualified to act as guardian of the person and, if he is a resident of this State, guardian of the estate of the disabled person." Emphasis added. 755 ILCS 5/11a-5(a) (West 1992).

On appeal, Luther first argues that section 11a-5(a) which prohibits anyone convicted of a felony from being appointed a guardian of a disabled person violates the bill of attainder clause of article I, section 10 of the United States Constitution. He contends in essence that the statute condemns him and proscribes a penalty without a judicial trial. Luther relies primarily on Ex parte Garland (1867), 71 U.S. 333, 4 Wall. 333, 18 L. Ed. 366 and United States v. Brown (1965), 381 U.S. 437, 14 L. Ed. 2d 484, 85 S. Ct. 1707, in support of his position.

In Garland, an act of Congress required all attorneys who desired to appear in Federal court to take an oath stating that they did not fight against the Union in the Civil War. Garland could not take the oath in good faith. The court struck down the provision as a bill of attainder on the ground that it was a legislative act inflicting punishment on a specific group. The Supreme Court took the same approach in Cummings v. Missouri (1867), 4 Wall. 277, 18 L. Ed. 356, when it struck down a similar loyalty oath. There, the court noted:

"The deprivation of rights, civil or political, previously enjoyed, may be punishment, the circumstances attending the causes of the deprivation determining this fact. Disqualifications from office may be punishment, as in cases of conviction upon impeachment. Disqualification from the pursuits of a lawful avocation, or from positions of trust, or from the privilege of appearing in courts, or acting as an executor, administrator, or guardian, may also, and often has been imposed as punishment." Cummings, 4 Wall. at 320.

The broad language of Cummings and Garland, however, was subsequently qualified by the United States Supreme Court in Hawker v. New York (1898), 170 U.S. 189, 42 L. Ed. 1002, 18 S. Ct. 573. There, Hawker performed an abortion and was sentenced to 10 years in prison. In the meantime, New York passed a law making it a criminal offense for anyone to practice medicine who had been convicted of a felony. Upon Hawker's release from prison, he began practicing medicine and was charged with a violation of the statute and subsequently convicted and fined $250. The Supreme Court upheld the law and distinguished Garland, noting that Garland stood for the proposition that one who has been admitted to practice the professionof law, cannot be deprived of the right to continue in the exercise of that profession by the exaction of an oath as to past conduct, respecting matters which have no connection with the profession. The Hawker Court went on to note that the commission of a crime has some relation to character, and a doctor's character is important because he must be trusted to safely administer medical treatment. Accordingly, the court found that the legislation in question was not a mere imposition of an additional penalty but was instead a prescription for the qualifications of the duties to be discharged and naming what is appropriate evidence of such qualifications.

In U.S. v. Brown an act of Congress made it a crime for a Communist party member to serve as an officer of a labor union. The Court struck down the law finding that it was a bill of attainder by focusing upon easily identifiable members of a class--members of the Communist party--and imposing on them the sanction of mandatory forfeiture of a job or office, long deemed to be punishment within the contemplation of the bill of attainder clause.

In Nixon v. Administrator of General Services (1977), 433 U.S. 425, 53 L. Ed. 2d 867, 97 S. Ct. 2777, the Court again had occasion to address an issue dealing with the bill of attainder clause. There, former President Richard Nixon entered into an agreement with the Administrator to have the voluminous presidential papers and materials returned to him. When it was made public, Congress passed a law abrogating the agreement so that the papers having historical value could ...

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