100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB0458

 

Introduced 1/17/2017, 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 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 against the State; 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 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 04254 HEP 14260 b

 

 

A BILL FOR

 

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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 the person was wrongfully
6imprisoned and shall prorate that amount for a fraction of a
7year that the person was wrongfully imprisoned. The court shall
8fix attorney's fees not to exceed 25% of the award granted. The
9court shall include the number of years the person was
10imprisoned awaiting trial in its determination of the award.
11The court shall include an additional $25,000 for each year
12served on parole, probation, or registered as a sex offender
13after imprisonment. ; provided, the amount of the award is at
14the discretion of the court; and provided, the court shall make
15no award in excess of the following amounts: for imprisonment
16of 5 years or less, not more than $85,350; for imprisonment of
1714 years or less but over 5 years, not more than $170,000; for
18imprisonment of over 14 years, not more than $199,150; and
19provided further, the court shall fix attorney's fees not to
20exceed 25% of the award granted. On or after the effective date
21of this amendatory Act of the 100th 95th General Assembly, the
22court shall annually adjust the maximum awards authorized by
23this subsection (c) to reflect the increase, if any, in the
24Consumer Price Index For All Urban Consumers for the previous
25calendar year, as determined by the United States Department of
26Labor, except that no annual increment may exceed 5%. For the

 

 

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1annual adjustments, if the Consumer Price Index decreases
2during a calendar year, there shall be no adjustment for that
3calendar year. The transmission by the Prisoner Review Board or
4the clerk of the circuit court of the information described in
5Section 11(b) to the clerk of the Court of Claims is conclusive
6evidence of the validity of the claim. The changes made by this
7amendatory Act of the 100th 95th General Assembly apply to all
8claims pending on or filed on or after the effective date.
9    (d) All claims against the State for damages in cases
10sounding in tort, if a like cause of action would lie against a
11private person or corporation in a civil suit, and all like
12claims sounding in tort against the Medical Center Commission,
13the Board of Trustees of the University of Illinois, the Board
14of Trustees of Southern Illinois University, the Board of
15Trustees of Chicago State University, the Board of Trustees of
16Eastern Illinois University, the Board of Trustees of Governors
17State University, the Board of Trustees of Illinois State
18University, the Board of Trustees of Northeastern Illinois
19University, the Board of Trustees of Northern Illinois
20University, the Board of Trustees of Western Illinois
21University, or the Board of Trustees of the Illinois
22Mathematics and Science Academy; provided, that an award for
23damages in a case sounding in tort, other than certain cases
24involving the operation of a State vehicle described in this
25paragraph, shall not exceed the sum of $100,000 to or for the
26benefit of any claimant. The $100,000 limit prescribed by this

 

 

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

 

 

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1Guardsman's Compensation Act. A claim under that Act must be
2heard and determined within one year after the application for
3that claim is filed with the Court as provided in that Act.
4    (i) All claims authorized by subsection (a) of Section
510-55 of the Illinois Administrative Procedure Act for the
6expenses incurred by a party in a contested case on the
7administrative level.
8(Source: P.A. 95-970, eff. 9-22-08; 96-80, eff. 7-27-09.)
 
9    (705 ILCS 505/11)  (from Ch. 37, par. 439.11)
10    Sec. 11. Filing claims.
11    (a) Except as otherwise provided in subsection (b) of this
12Section and subsection (4) of Section 24, the claimant shall in
13all cases set forth fully in his petition the claim, the action
14thereon, if any, on behalf of the State, what persons are
15owners thereof or interested therein, when and upon what
16consideration such persons became so interested; that no
17assignment or transfer of the claim or any part thereof or
18interest therein has been made, except as stated in the
19petition; that the claimant is justly entitled to the amount
20therein claimed from the State of Illinois, after allowing all
21just credits; and that claimant believes the facts stated in
22the petition to be true. The petition shall be verified, as to
23statements of facts, by the affidavit of the claimant, his
24agent, or attorney.
25    (b) Whenever a person has served a term of imprisonment and

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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1purpose of sentencing for any subsequent felony. Upon
2conviction for any subsequent offense, the Department of
3Corrections shall have access to all sealed records of the
4Department pertaining to that individual.
5    Upon entry of the order of expungement, the clerk of the
6circuit court shall promptly mail a copy of the order to the
7person whose records were expunged and sealed.
8    (i) Any person seeking a certificate of innocence under
9this Section based on the dismissal of an indictment or
10information or acquittal that occurred before the effective
11date of this amendatory Act of the 95th General Assembly shall
12file his or her petition within 2 years after the effective
13date of this amendatory Act of the 95th General Assembly. Any
14person seeking a certificate of innocence under this Section
15based on the dismissal of an indictment or information or
16acquittal that occurred on or after the effective date of this
17amendatory Act of the 95th General Assembly shall file his or
18her petition within 2 years after the dismissal.
19    (j) The decision to grant or deny a certificate of
20innocence shall be binding only with respect to claims filed in
21the Court of Claims and shall not have a res judicata effect on
22any other proceedings.
23(Source: P.A. 98-133, eff. 1-1-14.)
 
24    Section 99. Effective date. This Act takes effect upon
25becoming law.