100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB4362

 

Introduced , by Rep. Mary E. Flowers

 

SYNOPSIS AS INTRODUCED:
 
705 ILCS 505/8  from Ch. 37, par. 439.8
705 ILCS 505/11  from Ch. 37, par. 439.11
735 ILCS 5/2-702

    Amends the Code of Civil Procedure. Provides that any person criminally prosecuted and incarcerated for 30 days or longer prior to trial for one or more felonies by the State of Illinois which he or she did not commit may file a petition for a certificate of innocence in the circuit court of the county in which the person was incarcerated prior to trial. Provides that the petitioner must prove by a preponderance of evidence that: (1) the petitioner was incarcerated prior to trial in a prosecution which resulted in an acquittal or dismissal; (2) the prosecution did not result in a conviction of a lesser included offense; (3) the petitioner is innocent of the charges on which the petitioner's pretrial detention was based, or the charges did not constitute a felony or misdemeanor; and (4) the petitioner did not by his or her own conduct voluntarily cause or bring about the charges which resulted in his or her pretrial incarceration. Amends the Court of Claims Act. Provides that a person who has been issued a certificate of innocence may file a claim against the State for time unjustly served in pretrial incarceration in a county jail. Provides that the Court of Claims shall make an award of $50,000 per year during which the person was wrongfully imprisoned and shall prorate that amount for a fraction of a year that the person was wrongfully imprisoned (rather than "the amount of the award is at the discretion of the court; and provided, the court shall make no award in excess of the following amounts: for imprisonment of 5 years or less, not more than $85,350; for imprisonment of 14 years or less but over 5 years, not more than $170,000; for imprisonment of over 14 years, not more than $199,150"). Provides that the court shall include the number of years the person was imprisoned awaiting trial in its determination of the award and that the court shall include an additional $25,000 for each year served on parole, probation, or registered as a sex offender after imprisonment. Makes corresponding changes. Effective immediately.


LRB100 17496 HEP 32665 b

 

 

A BILL FOR

 

HB4362LRB100 17496 HEP 32665 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Court of Claims Act is amended by changing
5Sections 8 and 11 as follows:
 
6    (705 ILCS 505/8)   (from Ch. 37, par. 439.8)
7    Sec. 8. Court of Claims jurisdiction; deliberation
8periods. The court shall have exclusive jurisdiction to hear
9and determine the following matters:
10    (a) All claims against the State founded upon any law of
11the State of Illinois or upon any regulation adopted thereunder
12by an executive or administrative officer or agency; provided,
13however, the court shall not have jurisdiction (i) to hear or
14determine claims arising under the Workers' Compensation Act or
15the Workers' Occupational Diseases Act, or claims for expenses
16in civil litigation, or (ii) to review administrative decisions
17for which a statute provides that review shall be in the
18circuit or appellate court.
19    (b) All claims against the State founded upon any contract
20entered into with the State of Illinois.
21    (c) All claims against the State for time unjustly served
22in prisons of this State or in a county jail when the person
23imprisoned received a pardon from the governor stating that

 

 

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1such pardon is issued on the ground of innocence of the crime
2for which he or she was imprisoned or he or she received a
3certificate of innocence from the Circuit Court as provided in
4Section 2-702 of the Code of Civil Procedure. The court shall
5make an award of $50,000 per year during which the person was
6wrongfully imprisoned and shall prorate that amount for a
7fraction of a year that the person was wrongfully imprisoned.
8The court shall fix attorney's fees not to exceed 25% of the
9award granted. The court shall include the number of years the
10person was imprisoned awaiting trial in its determination of
11the award. The court shall include an additional $25,000 for
12each year served on parole, probation, or registered as a sex
13offender after imprisonment. ; provided, the amount of the award
14is at the discretion of the court; and provided, the court
15shall make no award in excess of the following amounts: for
16imprisonment of 5 years or less, not more than $85,350; for
17imprisonment of 14 years or less but over 5 years, not more
18than $170,000; for imprisonment of over 14 years, not more than
19$199,150; and provided further, the court shall fix attorney's
20fees not to exceed 25% of the award granted. On or after the
21effective date of this amendatory Act of the 100th 95th General
22Assembly, the court shall annually adjust the maximum awards
23authorized by this subsection (c) to reflect the increase, if
24any, in the Consumer Price Index For All Urban Consumers for
25the previous calendar year, as determined by the United States
26Department of Labor, except that no annual increment may exceed

 

 

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15%. For the annual adjustments, if the Consumer Price Index
2decreases during a calendar year, there shall be no adjustment
3for that calendar year. The transmission by the Prisoner Review
4Board or the clerk of the circuit court of the information
5described in Section 11(b) to the clerk of the Court of Claims
6is conclusive evidence of the validity of the claim. The
7changes made by this amendatory Act of the 100th 95th General
8Assembly apply to all claims pending on or filed on or after
9the effective date.
10    (d) All claims against the State for damages in cases
11sounding in tort, if a like cause of action would lie against a
12private person or corporation in a civil suit, and all like
13claims sounding in tort against the Medical Center Commission,
14the Board of Trustees of the University of Illinois, the Board
15of Trustees of Southern Illinois University, the Board of
16Trustees of Chicago State University, the Board of Trustees of
17Eastern Illinois University, the Board of Trustees of Governors
18State University, the Board of Trustees of Illinois State
19University, the Board of Trustees of Northeastern Illinois
20University, the Board of Trustees of Northern Illinois
21University, the Board of Trustees of Western Illinois
22University, or the Board of Trustees of the Illinois
23Mathematics and Science Academy; provided, that an award for
24damages in a case sounding in tort, other than certain cases
25involving the operation of a State vehicle described in this
26paragraph, shall not exceed the sum of $100,000 to or for the

 

 

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1benefit of any claimant. The $100,000 limit prescribed by this
2Section does not apply to an award of damages in any case
3sounding in tort arising out of the operation by a State
4employee of a vehicle owned, leased or controlled by the State.
5The defense that the State or the Medical Center Commission or
6the Board of Trustees of the University of Illinois, the Board
7of Trustees of Southern Illinois University, the Board of
8Trustees of Chicago State University, the Board of Trustees of
9Eastern Illinois University, the Board of Trustees of Governors
10State University, the Board of Trustees of Illinois State
11University, the Board of Trustees of Northeastern Illinois
12University, the Board of Trustees of Northern Illinois
13University, the Board of Trustees of Western Illinois
14University, or the Board of Trustees of the Illinois
15Mathematics and Science Academy is not liable for the
16negligence of its officers, agents, and employees in the course
17of their employment is not applicable to the hearing and
18determination of such claims.
19    (e) All claims for recoupment made by the State of Illinois
20against any claimant.
21    (f) All claims pursuant to the Line of Duty Compensation
22Act. A claim under that Act must be heard and determined within
23one year after the application for that claim is filed with the
24Court as provided in that Act.
25    (g) All claims filed pursuant to the Crime Victims
26Compensation Act.

 

 

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1    (h) All claims pursuant to the Illinois National
2Guardsman's Compensation Act. A claim under that Act must be
3heard and determined within one year after the application for
4that claim is filed with the Court as provided in that Act.
5    (i) All claims authorized by subsection (a) of Section
610-55 of the Illinois Administrative Procedure Act for the
7expenses incurred by a party in a contested case on the
8administrative level.
9(Source: P.A. 95-970, eff. 9-22-08; 96-80, eff. 7-27-09.)
 
10    (705 ILCS 505/11)  (from Ch. 37, par. 439.11)
11    Sec. 11. Filing claims.
12    (a) Except as otherwise provided in subsection (b) of this
13Section and subsection (4) of Section 24, the claimant shall in
14all cases set forth fully in his petition the claim, the action
15thereon, if any, on behalf of the State, what persons are
16owners thereof or interested therein, when and upon what
17consideration such persons became so interested; that no
18assignment or transfer of the claim or any part thereof or
19interest therein has been made, except as stated in the
20petition; that the claimant is justly entitled to the amount
21therein claimed from the State of Illinois, after allowing all
22just credits; and that claimant believes the facts stated in
23the petition to be true. The petition shall be verified, as to
24statements of facts, by the affidavit of the claimant, his
25agent, or attorney.

 

 

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1    (b) Whenever a person has served a term of imprisonment and
2has received a pardon by the Governor stating that such pardon
3was issued on the ground of innocence of the crime for which he
4or she was imprisoned, the Prisoner Review Board shall transmit
5this information to the clerk of the Court of Claims, together
6with the claimant's current address. Whenever a person has
7served a term of imprisonment or has been incarcerated as a
8pretrial detainee and has received a certificate of innocence
9from the Circuit Court as provided in Section 2-702 of the Code
10of Civil Procedure, the clerk of the issuing Circuit Court
11shall transmit this information to the clerk of the Court of
12Claims, together with the claimant's current address. The clerk
13of the Court of Claims shall immediately docket the case for
14consideration by the Court of Claims, and shall provide notice
15to the claimant of such docketing together with all hearing
16dates and applicable deadlines. The Court of Claims shall hear
17the case and render a decision within 90 days after its
18docketing.
19(Source: P.A. 95-970, eff. 9-22-08; 96-328, eff. 8-11-09.)
 
20    Section 10. The Code of Civil Procedure is amended by
21changing Section 2-702 as follows:
 
22    (735 ILCS 5/2-702)
23    Sec. 2-702. Petition for a certificate of innocence that
24the petitioner was innocent of all offenses for which he or she

 

 

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1was incarcerated.
2    (a) The General Assembly finds and declares that innocent
3persons who have been wrongly charged with or convicted of
4crimes in Illinois and subsequently have been incarcerated
5prior to trial or imprisoned have been frustrated in seeking
6legal redress due to a variety of substantive and technical
7obstacles in the law and that such persons should have an
8available avenue to obtain a finding of innocence so that they
9may obtain relief through a petition in the Court of Claims.
10The General Assembly further finds misleading the current legal
11nomenclature which compels an innocent person to seek a pardon
12for being wrongfully incarcerated. It is the intent of the
13General Assembly that the court, in exercising its discretion
14as permitted by law regarding the weight and admissibility of
15evidence submitted pursuant to this Section, shall, in the
16interest of justice, give due consideration to difficulties of
17proof caused by the passage of time, the death or
18unavailability of witnesses, the destruction of evidence or
19other factors not caused by such persons or those acting on
20their behalf.
21    (b) Any person criminally prosecuted and incarcerated
22prior to trial or convicted and subsequently imprisoned for one
23or more felonies by the State of Illinois which he or she did
24not commit may, under the conditions hereinafter provided, file
25a petition for certificate of innocence in the circuit court of
26the county in which the person was convicted or incarcerated

 

 

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1prior to trial. The petition shall request a certificate of
2innocence finding that the petitioner was innocent of all
3offenses for which he or she was incarcerated.
4    (c) In order to present the claim for certificate of
5innocence of an unjust conviction and imprisonment or pretrial
6incarceration, the petitioner must attach to his or her
7petition documentation demonstrating that:
8        (1) he or she has been convicted of one or more
9    felonies by the State of Illinois and subsequently
10    sentenced to a term of imprisonment, and has served all or
11    any part of the sentence, or he or she was incarcerated
12    prior to trial for 30 days or longer and the case resulted
13    in a dismissal or acquittal of the charge or charges, but
14    did not result in a conviction for a lesser included
15    offense; and
16        (2) if convicted, his or her judgment of conviction was
17    reversed or vacated, and the indictment or information
18    dismissed or, if a new trial was ordered, either he or she
19    was found not guilty at the new trial or he or she was not
20    retried and the indictment or information dismissed; or the
21    statute, or application thereof, on which the indictment or
22    information was based violated the Constitution of the
23    United States or the State of Illinois; and
24        (3) his or her claim is not time barred by the
25    provisions of subsection (i) of this Section.
26    (d) The petition shall state facts in sufficient detail to

 

 

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1permit the court to find that the petitioner is likely to
2succeed at trial in proving that the petitioner is innocent of
3the offenses charged in the indictment or information or his or
4her acts or omissions charged in the indictment or information
5did not constitute a felony or misdemeanor against the State of
6Illinois, and the petitioner did not by his or her own conduct
7voluntarily cause or bring about his or her conviction. The
8petition shall be verified by the petitioner.
9    (e) A copy of the petition shall be served on the Attorney
10General and the State's Attorney of the county where the
11conviction was had. The Attorney General and the State's
12Attorney of the county where the conviction was had shall have
13the right to intervene as parties.
14    (f) In any hearing seeking a certificate of innocence, the
15court may take judicial notice of prior sworn testimony or
16evidence admitted in the criminal proceedings related to the
17charges or convictions which resulted in the alleged wrongful
18incarceration, if the petitioner was either represented by
19counsel at such prior proceedings or the right to counsel was
20knowingly waived.
21    (g) If the petitioner was imprisoned because of a
22conviction, in In order to obtain a certificate of innocence
23the petitioner must prove by a preponderance of evidence that:
24        (1) the petitioner was convicted of one or more
25    felonies by the State of Illinois and subsequently
26    sentenced to a term of imprisonment, and has served all or

 

 

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1    any part of the sentence;
2        (2)(A) the judgment of conviction was reversed or
3    vacated, and the indictment or information dismissed or, if
4    a new trial was ordered, either the petitioner was found
5    not guilty at the new trial or the petitioner was not
6    retried and the indictment or information dismissed; or (B)
7    the statute, or application thereof, on which the
8    indictment or information was based violated the
9    Constitution of the United States or the State of Illinois;
10        (3) the petitioner is innocent of the offenses charged
11    in the indictment or information or his or her acts or
12    omissions charged in the indictment or information did not
13    constitute a felony or misdemeanor against the State; and
14        (4) the petitioner did not by his or her own conduct
15    voluntarily cause or bring about his or her conviction.
16    (g-5) If the petitioner was incarcerated prior to trial for
1730 days or longer but not convicted of any of the charged
18offenses or a lesser included offense, in order to obtain a
19certificate of innocence the petitioner must prove by a
20preponderance of evidence that:
21        (1) the petitioner was incarcerated prior to trial for
22    30 days or longer in a prosecution which resulted in an
23    acquittal or dismissal;
24        (2) the prosecution did not result in a conviction of a
25    lesser included offense;
26        (3) the petitioner is innocent of the charges on which

 

 

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1    the petitioner's pretrial detention was based, or the
2    charges did not constitute a felony or misdemeanor; and
3        (4) the petitioner did not by his or her own conduct
4    voluntarily cause or bring about the charges which resulted
5    in his or her pretrial incarceration.
6    (h) If the court finds that the petitioner is entitled to a
7judgment, it shall enter a certificate of innocence finding
8that the petitioner was innocent of all offenses for which he
9or she was incarcerated. Upon entry of the certificate of
10innocence or pardon from the Governor stating that such pardon
11was issued on the ground of innocence of the crime for which he
12or she was incarcerated prior to trial or imprisoned, (1) the
13clerk of the court shall transmit a copy of the certificate of
14innocence to the clerk of the Court of Claims, together with
15the claimant's current address; and (2) the court shall enter
16an order expunging the record of arrest from the official
17records of the arresting authority and order that the records
18of the clerk of the circuit court and Department of State
19Police be sealed until further order of the court upon good
20cause shown or as otherwise provided herein, and the name of
21the defendant obliterated from the official index requested to
22be kept by the circuit court clerk under Section 16 of the
23Clerks of Courts Act in connection with the arrest and
24conviction for the offense but the order shall not affect any
25index issued by the circuit court clerk before the entry of the
26order. The court shall enter the expungement order regardless

 

 

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1of whether the petitioner has prior criminal convictions.
2    All records sealed by the Department of State Police may be
3disseminated by the Department only as required by law or to
4the arresting authority, the State's Attorney, the court upon a
5later arrest for the same or similar offense, or for the
6purpose of sentencing for any subsequent felony. Upon
7conviction for any subsequent offense, the Department of
8Corrections shall have access to all sealed records of the
9Department pertaining to that individual.
10    Upon entry of the order of expungement, the clerk of the
11circuit court shall promptly mail a copy of the order to the
12person whose records were expunged and sealed.
13    (i) Any person seeking a certificate of innocence under
14this Section based on the dismissal of an indictment or
15information or acquittal that occurred before the effective
16date of this amendatory Act of the 95th General Assembly shall
17file his or her petition within 2 years after the effective
18date of this amendatory Act of the 95th General Assembly. Any
19person seeking a certificate of innocence under this Section
20based on the dismissal of an indictment or information or
21acquittal that occurred on or after the effective date of this
22amendatory Act of the 95th General Assembly shall file his or
23her petition within 2 years after the dismissal.
24    (j) The decision to grant or deny a certificate of
25innocence shall be binding only with respect to claims filed in
26the Court of Claims and shall not have a res judicata effect on

 

 

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1any other proceedings.
2(Source: P.A. 98-133, eff. 1-1-14.)
 
3    Section 99. Effective date. This Act takes effect upon
4becoming law.