                  NOTICE                            NO. 5-05-0332
 Decision filed 1/31/06. The text of
 this decision may be changed or                       IN THE
 corrected prior to the filing of a
 Petition   for    Rehearing   or   the   APPELLATE COURT OF ILLINOIS
 disposition of the same.
                             FIFTH DISTRICT
________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
                                       ) Circuit Court of
   Plaintiff-Appellee,                 ) Bond County.
                                       )
v.                                     ) No. 05-MR-11
                                       )
KIM E. HOFER,                          ) Honorable
                                       ) John Knight,
   Defendant-Appellant.                ) Judge, presiding.
________________________________________________________________________

            JUSTICE DONOVAN delivered the opinion of the court:

            Following a hearing on a quo warranto complaint filed by the People of the State of
Illinois (the State), the circuit court of Bond County ordered that defendant, Kim E. Hofer, be

removed from the office of trustee for the Village of Sorento and that he be barred from

taking the oath of office or otherwise assuming the office of president of the Board of

Trustees of the Village of Sorento on the ground that he was a convicted felon and not

eligible for an elective municipal office under section 3.1-10-5(b) of the Illinois Municipal

Code (65 ILCS 5/3.1-10-5(b) (West 2002)). On appeal, defendant contends that section 3.1-
10-5(b) violates the equal protection clause of the fourteenth amendment to the United States

Constitution (U.S. Const., amend. XIV) and is unconstitutional.
                                            I. Facts and Procedural History
            In October 1999, defendant was convicted of the offense of driving while license

revoked (625 ILCS 5/6-303(a), (d) (West 1998)), a Class 4 felony, in the circuit court of
Macoupin County. Defendant was sentenced to a term of probation. He received his

discharge from probation on May 27, 2003. On May 11, 1998, defendant was charged in the

                                                          1
circuit court of Bond County with felony driving while license revoked. On May 31, 2000,
the Bond County circuit court entered a judgment of guilt in the case and sentenced

defendant to a one-year term of probation. Defendant was discharged from that probation in
June 2001.
       In April 2003, defendant was elected to the office of village trustee for the Village of

Sorento. It was a four-year term of office. On April 5, 2005, defendant ran for the office of
president of the Board of Trustees of the Village of Sorento (President of the Village Board).
He won that contest with a plurality of the votes.

       On April 7, 2005, the Bond County State's Attorney, on behalf of the State, filed a quo

warranto complaint pursuant to section 18-101(1) of the Code of Civil Procedure (735 ILCS
5/18-101(1) (West 2004)) in the circuit court of Bond County. In the complaint, the State's

Attorney sought orders ousting defendant from the office of village trustee and barring

defendant from taking the oath of office and assuming the office of President of the Village

Board. The State's Attorney alleged that defendant had been convicted of felonies in
Macoupin County and Bond County and that, as a result of his felony convictions, defendant

was not eligible to hold an elective municipal office according to section 3.1-10-5(b) of the

Illinois Municipal Code.
       In his answer to the quo warranto complaint, defendant admitted that he had two

felony convictions but alleged that section 3.1-10-5 of the Illinois Municipal Code violates
the equal protection clause of the fourteenth amendment to the United States Constitution.
       The State filed a motion for a summary judgment and attached a certified copy of the

judgment of felony conviction filed in Bond County and a copy of defendant's answer, in
which he admitted that he had two felony convictions. The State argued that a summary
judgment was appropriate as a matter of law because the evidence of defendant's felony

convictions was undisputed and because section 3.1-10-5 of the Illinois Municipal Code

                                              2
provides that a person is not eligible for an elective municipal office if he has been convicted
of a felony.

       In turn, defendant filed a motion for a summary judgment and attached a certified
copy of the order of discharge from probation from each felony case. He argued that the
legislative scheme, which provided for the restoration of a convicted felon's eligibility to hold

a constitutional office upon the completion of his sentence but did not provide for the
restoration of a felon's eligibility to hold a legislatively created office upon the completion of
his sentence, was unconstitutional because the different classifications were not rationally

related to a legitimate state interest.

       After considering the arguments of counsel, the circuit court rejected defendant's equal
protection argument and granted a summary judgment in favor of the State. The court

determined that the State had presented rational reasons to support a statutory difference in

the treatment of convicted felons seeking election to municipal offices compared to those

seeking election to constitutional offices. The court found that the legislative scheme which
provides a different path to the restoration of the right of a convicted felon to run for a

statutorily created office could be reasonably based on valid concerns about the lack of a

lengthy vetting between the nomination and the election, the relative lack of scrutiny of the
municipal candidates, and the fact that there is less oversight and regulation at the municipal

level of government. The court concluded that "the prohibition against a convicted felon
holding a municipal office (unless pardoned) is presumed to be rationally related to a
legitimate state interest" and that the presumption is not overcome "by the fact that convicted

felons may hold constitutional offices upon completion of sentence." The court ordered that
defendant be removed from the office of village trustee and that he be barred from taking the
oath of office and assuming the office of President of the Village Board.



                                                3
                                          II. Analysis
       In this case, we must determine whether there is a rational basis for a statutory scheme

that allows a convicted felon to run for a constitutional office upon the completion of his
sentence but does not afford the same restoration of the right to a felon seeking a
nonconstitutional elective office. We begin our analysis by considering the appropriate

standard of review. We will then turn our attention to the sections of the Illinois Constitution
and the statutory provisions that address the restoration of the rights of convicted felons to
run for a public office.

                                    A. Standard of Review

       In this case, defendant's constitutional challenge will be reviewed under the rational
basis standard of review. We have concluded that this standard of review is appropriate

because the right to run for a statutorily created office and the right to serve in that office

have not been found to be absolute or fundamental rights (Hoskins v. Walker, 57 Ill. 2d 503,

508, 315 N.E.2d 25, 27 (1974); Coles v. Ryan, 91 Ill. App. 3d 382, 385, 414 N.E.2d 932, 936
(1980)) and because this case does not fall within the types of cases where the challenged

classification imposes burdens on new political parties or where ballot access is dependent on

a person's economic means (Lubin v. Panish, 415 U.S. 709, 39 L. Ed. 2d 702, 94 S. Ct. 1315
(1974); Anderson v. Schneider, 67 Ill. 2d 165, 365 N.E.2d 900 (1977)).

       Under the more deferential analysis, a legislative classification will be sustained if it is
rationally related to furthering a legitimate state interest. Hoskins, 57 Ill. 2d at 508, 315
N.E.2d at 27. There is a presumption that a legislative classification is valid, and the

classification will not be set aside if any set of facts may be conceived to justify it. Hoskins,
57 Ill. 2d at 509, 315 N.E.2d at 28. A court will construe the acts of the legislature so as to
uphold their constitutionality if that can reasonably be done, and if the construction is

doubtful, the doubts will be resolved in favor of the validity of the legislation. Anderson, 67

                                                4
Ill. 2d at 176, 365 N.E.2d at 904. The party challenging the classification has the burden to
establish a constitutional violation. Hoskins, 57 Ill. 2d at 508, 315 N.E.2d at 27.

B. The Equal Protection Challenge to Section 3.1-10-5(b) of the Illinois Municipal Code
       Under the Illinois Constitution, Illinois citizens who are convicted of a felony forfeit
certain rights, including the right to vote (Ill. Const. 1970, art. III, '2) and the right to run for

and hold a constitutional office (Ill. Const. 1970, art. XIII, '1). Section 2 of article III of the
Illinois Constitution provides that a convicted felon's eligibility to vote shall be restored no
later than the completion of his sentence. Section 1 of article XIII does not contain the same

provision. Under section 1 of article XIII, a convicted felon's eligibility to run for a

constitutional office "may be restored as provided by law." Ill. Const. 1970, art. XIII, '1.
Another constitutional provision grants to the Governor the authority to grant reprieves,

commutations, and pardons, subject to the legislature's authority to establish the manner of

application. Ill. Const. 1970, art. V, '12. Under the Illinois Constitution, aside from a

gubernatorial pardon, the state legislature has the authority to enact statutes that dictate
whether and under what circumstances a convicted felon's eligibility to serve in a

constitutional office may be restored.

       The Illinois Constitution also grants to the legislature the authority to create units of
local government. Ill. Const. 1970, art. VII, '12. When a municipal office is created by

statute, the legislature has the discretionary authority to specify the qualifications required to
hold that office so long as the qualifications are reasonably related to the specialized
demands of the office. See East St. Louis Federation of Teachers, Local 1220 v. East St.

Louis School District No. 189 Financial Oversight Panel, 178 Ill. 2d 399, 418, 687 N.E.2d
1050, 1061 (1997); Hoskins, 57 Ill. 2d at 509, 315 N.E.2d at 28.
       In accordance with the authority granted by the Illinois Constitution, the state

legislature has enacted statutory provisions that set forth the qualifications and the eligibility

                                                 5
requirements for persons seeking elective office. Section 29-15 of the Election Code
prohibits any person convicted of an infamous crime "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." 10 ILCS 5/29-15 (West 2002). Section 5-5-5(b) of
the Unified Code of Corrections states that a person convicted of a felony is ineligible to hold

a constitutional office until the completion of his sentence. 730 ILCS 5/5-5-5(b) (West
2002). Finally, section 3.1-10-5(b) of the Illinois Municipal Code provides as follows: "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 2002).

       It is clear that the aforementioned constitutional and statutory provisions were

established to ensure public confidence in the honesty and integrity of those serving in state

and local offices. People ex rel. Ryan v. Coles, 64 Ill. App. 3d 807, 811-12, 381 N.E.2d 990,
994 (1978). The question is whether the legislature's decision to establish a different

requirement for the restoration of eligibility for a statutorily created office is rationally

related to a legitimate state interest. It appears from our research and that of the parties that
Coles v. Ryan is the only reported Illinois decision in which this issue has been considered.

Coles v. Ryan, 91 Ill. App. 3d 382, 414 N.E.2d 932 (1980). In Coles, our colleagues in the
Second District found that there was no rational basis apparent from the record for
distinguishing between statutorily created and constitutionally created offices for purposes of

the restoration of eligibility. In reaching that decision, the court specifically noted that the
State's Attorney argued generally that the subject was within the province of the legislature
and that he did not suggest a rational basis to support the differing classifications. Coles, 91

Ill. App. 3d at 386, 414 N.E.2d at 936.

                                               6
       After reviewing the Coles decision and the bases therefor, we have determined that it
is distinguishable from the case at bar. In contrast to the facts in Coles, the State's Attorney

in this case explained that the legislative scheme was rationally related to the legitimate state
interest in maintaining the public trust in local elective offices, and the circuit court found
that reasoning to be valid. The court found legitimate differences between the environments

in which candidates for municipal offices and candidates for statutory offices run and serve.
The court specifically noted that the opportunities and the means to scrutinize candidates for
municipal offices and to oversee the activities of those elected are significantly less than the

opportunities for scrutiny and oversight of those who run for and serve in constitutional

offices. Based on the aforementioned considerations and the fact that the elected officials
make important fiscal and policy decisions which directly impact the residents of the

municipality, we conclude that the legislature's decision to require a convicted felon to

present some evidence of rehabilitation beyond the mere service of his sentence in order to

regain his eligibility to hold a municipal office is a reasonable means to further the State's
interest in safeguarding the integrity of and the public trust in municipal government. In our

view, the provision requiring a convicted felon who wants to run for a statutorily created

office to establish to the Governor's satisfaction that he has rehabilitated himself and is
worthy of the public trust is neither arbitrary nor irrational.

                                        III. Conclusion
       Under long-standing principles of statutory construction, we have a duty to construe
acts of the legislature so as to uphold their constitutionality, and any doubts regarding

construction are to be resolved in favor of the validity of the legislation. Based on the record
in this case, we have concluded that there is a rational basis for imposing additional
requirements on a convicted felon who seeks the restoration of the right to run for a

statutorily created office. Defendant has not established that section 3.1-10-5 of the Illinois

                                               7
Municipal Code violates the equal protection clause of the fourteenth amendment to the
United States Constitution. Accordingly, the judgment of the circuit court of Bond County is

affirmed.


       Affirmed.



       WELCH and McGLYNN, JJ., concur.




                                             8
                                           NO. 5-05-0332
                                              IN THE

                                APPELLATE COURT OF ILLINOIS
                                  FIFTH DISTRICT
___________________________________________________________________________________
      THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
                                            ) Circuit Court of
         Plaintiff-Appellee,                ) Bond County.
                                            )
      v.                                    ) No. 05-MR-11
                                            )
      KIM E. HOFER,                         ) Honorable
                                            ) John Knight,
         Defendant-Appellant.               ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed:                     January 31, 2006
___________________________________________________________________________________

Justices:           Honorable James K. Donovan, J.
                 Honorable Thomas M. Welch, J., and
                 Honorable Stephen P. McGlynn, J.,
                 Concur
___________________________________________________________________________________

Attorney         Douglas Marti
for              218B North Second
Appellant        Greenville, IL 62246
___________________________________________________________________________________
Attorneys        Hon. Christopher Bauer, Bond County State's Attorney, Bond County Courthouse,
for              Greenville, IL 62246; Norbert J. Goetten, Director, Stephen E. Norris, Deputy
Appellee         Director, Patrick D. Daly, Staff Attorney, Office of the State's Attorneys Appellate
                 Prosecutor, 730 E. Illinois Highway 15, Suite #2, P.O. Box 2249, Mt. Vernon, IL
                 62864
___________________________________________________________________________________
