HB5942 96TH GENERAL ASSEMBLY

LRB096 18441 AJO 33819 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB5942

Introduced 2/10/2010, by Rep. Robert W. Pritchard

SYNOPSIS AS INTRODUCED:

705 ILCS 105/27.5	from Ch. 25, par. 27.5
750 ILCS 5/6.12 new
750 ILCS 60/223	from Ch. 40, par. 2312-23
30 ILCS 105/5.755 new
30 ILCS 105/6z-82 new

Amends the Clerks of Courts Act. Provides that a person fined under the Illinois Marriage and Dissolution of Marriage Act for violating an order concerning custody or visitation, or fined under the Illinois Domestic Violence Act of 1986 for violating a portion of an order of protection concerning custody or visitation, shall pay the fine to the circuit clerk who shall remit to the State Treasurer for deposit the amount of the fine, less 10% to defray administrative costs, into the Domestic Violence Victims Assistance Fund in the State treasury. Amends the Illinois Marriage and Dissolution of Marriage Act and the Illinois Domestic Violence Act of 1986 to direct that a court that finds that a person violated a portion of an order of protection concerning custody or visitation or an order concerning custody or visitation shall fine the person $100, unless waived by the court because the fine would place an undue burden on another party who did not violate the order. Amends the State Finance Act. Creates the Domestic Violence Victims Assistance Fund from which, subject to appropriation, grants are made by the Attorney General to public or private nonprofit entities that provide free legal assistance or domestic abuse advocacy to victims of domestic violence in legal proceedings related to domestic violence. Provides that the Attorney General shall adopt rules concerning the grants.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning child custody.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Clerks of Courts Act is amended by changing Section 27.5 as follows:

(705 ILCS 105/27.5) (from Ch. 25, par. 27.5)

Sec. 27.5. (a) All fees, fines, costs, additional penalties, bail balances assessed or forfeited, and any other amount paid by a person to the circuit clerk that equals an amount less than $55, except restitution under Section 5-5-6 of the Unified Code of Corrections, reimbursement for the costs of an emergency response as provided under Section 11-501 of the Illinois Vehicle Code, any fees collected for attending a traffic safety program under paragraph (c) of Supreme Court Rule 529, any fee collected on behalf of a State's Attorney under Section 4-2002 of the Counties Code or a sheriff under Section 4-5001 of the Counties Code, or any cost imposed under Section 124A-5 of the Code of Criminal Procedure of 1963, for convictions, orders of supervision, or any other disposition for a violation of Chapters 3, 4, 6, 11, and 12 of the Illinois Vehicle Code, or a similar provision of a local ordinance, and any violation of the Child Passenger Protection Act, or a similar provision of a local ordinance, and except as otherwise provided in this Section in subsection (b) shall be disbursed within 60 days after receipt by the circuit clerk as follows: 47% shall be disbursed to the entity authorized by law to receive the fine imposed in the case; 12% shall be disbursed to the State Treasurer; and 41% shall be disbursed to the county's general corporate fund. Of the 12% disbursed to the State Treasurer, 1/6 shall be deposited by the State Treasurer into the Violent Crime Victims Assistance Fund, 1/2 shall be deposited into the Traffic and Criminal Conviction Surcharge Fund, and 1/3 shall be deposited into the Drivers Education Fund. For fiscal years 1992 and 1993, amounts deposited into the Violent Crime Victims Assistance Fund, the Traffic and Criminal Conviction Surcharge Fund, or the Drivers Education Fund shall not exceed 110% of the amounts deposited into those funds in fiscal year 1991. Any amount that exceeds the 110% limit shall be distributed as follows: 50% shall be disbursed to the county's general corporate fund and 50% shall be disbursed to the entity authorized by law to receive the fine imposed in the case. Not later than March 1 of each year the circuit clerk shall submit a report of the amount of funds remitted to the State Treasurer under this Section during the preceding year based upon independent verification of fines and fees. All counties shall be subject to this Section, except that counties with a population under 2,000,000 may, by ordinance, elect not to be subject to this Section. For offenses subject to this Section, judges shall impose one total sum of money payable for violations. The circuit clerk may add on no additional amounts except for amounts that are required by Sections 27.3a and 27.3c of this Act, Section 16-104c of the Illinois Vehicle Code, and subsection (a) of Section 5-1101 of the Counties Code, unless those amounts are specifically waived by the judge. With respect to money collected by the circuit clerk as a result of forfeiture of bail, ex parte judgment or guilty plea pursuant to Supreme Court Rule 529, the circuit clerk shall first deduct and pay amounts required by Sections 27.3a and 27.3c of this Act. Unless a court ordered payment schedule is implemented or fee requirements are waived pursuant to a court order, the circuit clerk may add to any unpaid fees and costs a delinquency amount equal to 5% of the unpaid fees that remain unpaid after 30 days, 10% of the unpaid fees that remain unpaid after 60 days, and 15% of the unpaid fees that remain unpaid after 90 days. Notice to those parties may be made by signage posting or publication. The additional delinquency amounts collected under this Section shall be deposited in the Circuit Court Clerk Operation and Administrative Fund to be used to defray administrative costs incurred by the circuit clerk in performing the duties required to collect and disburse funds. This Section is a denial and limitation of home rule powers and functions under subsection (h) of Section 6 of Article VII of the Illinois Constitution.

(b) The following amounts must be remitted to the State Treasurer for deposit into the Illinois Animal Abuse Fund:

(1) 50% of the amounts collected for felony offenses under Sections 3, 3.01, 3.02, 3.03, 4, 4.01, 4.03, 4.04, 5, 5.01, 6, 7, 7.5, 7.15, and 16 of the Humane Care for Animals Act and Section 26-5 of the Criminal Code of 1961;

(2) 20% of the amounts collected for Class A and Class B misdemeanors under Sections 3, 3.01, 4, 4.01, 4.03, 4.04, 5, 5.01, 6, 7, 7.1, 7.5, 7.15, and 16 of the Humane Care for Animals Act and Section 26-5 of the Criminal Code of 1961; and

(3) 50% of the amounts collected for Class C misdemeanors under Sections 4.01 and 7.1 of the Humane Care for Animals Act and Section 26-5 of the Criminal Code of 1961.

(c) Any person who receives a disposition of court supervision for a violation of the Illinois Vehicle Code or a similar provision of a local ordinance shall, in addition to any other fines, fees, and court costs, pay an additional fee of $29, to be disbursed as provided in Section 16-104c of the Illinois Vehicle Code. In addition to the fee of $29, the person shall also pay a fee of $6, if not waived by the court. If this $6 fee is collected, $5.50 of the fee shall be deposited into the Circuit Court Clerk Operation and Administrative Fund created by the Clerk of the Circuit Court and 50 cents of the fee shall be deposited into the Prisoner Review Board Vehicle and Equipment Fund in the State treasury.

(d) Any person convicted of, pleading guilty to, or placed on supervision for a serious traffic violation, as defined in Section 1-187.001 of the Illinois Vehicle Code, a violation of Section 11-501 of the Illinois Vehicle Code, or a violation of a similar provision of a local ordinance shall pay an additional fee of $20, to be disbursed as provided in Section 16-104d of that Code.

This subsection Subsection (d) becomes inoperative 7 years after the effective date of Public Act 95-154.

(e) In all counties having a population of 3,000,000 or more inhabitants: ,

(1) (e-1) A person who is found guilty of or pleads guilty to violating subsection (a) of Section 11-501 of the Illinois Vehicle Code, including any person placed on court supervision for violating subsection (a), shall be fined $500 as provided for by subsection (f) of Section 11-501.01 of the Illinois Vehicle Code, payable to the circuit clerk, who shall distribute the money pursuant to subsection (f) of Section 11-501.01 of the Illinois Vehicle Code.

(2) (e-2) When a crime laboratory DUI analysis fee of $150, provided for by Section 5-9-1.9 of the Unified Code of Corrections is assessed, it shall be disbursed by the circuit clerk as provided by subsection (f) of Section 5-9-1.9 of the Unified Code of Corrections.

(3) (e-3) When a fine for a violation of subsection (a) of Section 11-605 of the Illinois Vehicle Code is $150 or greater, the additional $50 which is charged as provided for by subsection (f) of Section 11-605 of the Illinois Vehicle Code shall be disbursed by the circuit clerk to a school district or districts for school safety purposes as provided by subsection (f) of Section 11-605.

(4) (e-3.5) When a fine for a violation of subsection (a) of Section 11-1002.5 of the Illinois Vehicle Code is $150 or greater, the additional $50 which is charged as provided for by subsection (c) of Section 11-1002.5 of the Illinois Vehicle Code shall be disbursed by the circuit clerk to a school district or districts for school safety purposes as provided by subsection (c) of Section 11-1002.5 of the Illinois Vehicle Code.

(5) (e-4) When a mandatory drug court fee of up to $5 is assessed as provided in subsection (f) of Section 5-1101 of the Counties Code, it shall be disbursed by the circuit clerk as provided in subsection (f) of Section 5-1101 of the Counties Code.

(6) (e-5) When a mandatory teen court, peer jury, youth court, or other youth diversion program fee is assessed as provided in subsection (e) of Section 5-1101 of the Counties Code, it shall be disbursed by the circuit clerk as provided in subsection (e) of Section 5-1101 of the Counties Code.

(7) (e-6) When a Children's Advocacy Center fee is assessed pursuant to subsection (f-5) of Section 5-1101 of the Counties Code, it shall be disbursed by the circuit clerk as provided in subsection (f-5) of Section 5-1101 of the Counties Code.

(8) (e-7) When a victim impact panel fee is assessed pursuant to subsection (b) of Section 11-501.01 of the Illinois Vehicle Code, it shall be disbursed by the circuit clerk to the victim impact panel to be attended by the defendant.

(9) (e-8) When a new fee collected in traffic cases is enacted after January 1, 2010 (the effective date of Public Act 96-735) this amendatory Act of the 96th General Assembly, it shall be excluded from the percentage disbursement provisions of this Section unless otherwise indicated by law.

(f) (e) Any person who receives a disposition of court supervision for a violation of Section 11-501 of the Illinois Vehicle Code shall, in addition to any other fines, fees, and court costs, pay an additional fee of $50, which shall be collected by the circuit clerk and then remitted to the State Treasurer for deposit into the Roadside Memorial Fund, a special fund in the State treasury. However, the court may waive the fee if full restitution is complied with. Subject to appropriation, all moneys in the Roadside Memorial Fund shall be used by the Department of Transportation to pay fees imposed under subsection (f) of Section 20 of the Roadside Memorial Act. The fee shall be remitted by the circuit clerk within one month after receipt to the State Treasurer for deposit into the Roadside Memorial Fund.

(g) (e) For any conviction or disposition of court supervision for a violation of Section 11-1429 of the Illinois Vehicle Code, the circuit clerk shall distribute the fines paid by the person as specified by subsection (h) of Section 11-1429 of the Illinois Vehicle Code.

(h) Any person fined pursuant to Section 612 of the Illinois Marriage and Dissolution of Marriage Act for a violation of an order concerning custody or visitation or fined pursuant to subsection (c-5) of Section 223 of the Illinois Domestic Violence Act of 1986 for a violation of a portion of an order of protection concerning custody or visitation, shall pay the amount of the fine to the clerk of the circuit court. This amount, less 10% that shall be deposited into the Circuit Court Clerk Operation and Administrative Fund created by the Clerk of the Circuit Court, shall be remitted to the State Treasurer within 30 days after receipt for deposit into the Domestic Violence Victims Assistance Fund in the State treasury.

(Source: P.A. 95-154, eff. 10-13-07; 95-428, eff. 8-24-07; 95-876, eff. 8-21-08; 96-286, eff. 8-11-09; 96-576, eff. 8-18-09; 96-625, eff. 1-1-10; 96-667, eff. 8-25-09; 96-735, eff. 1-1-10; revised 12-28-09.)

Section 10. The Illinois Marriage and Dissolution of Marriage Act is amended by adding Section 6.12 as follows:

(750 ILCS 5/6.12 new)

Sec. 6.12. Custody or visitation order violation. If the court finds that a party violated an order concerning custody or visitation, the court shall fine the party $100, in addition to any other penalty imposed, unless the court waives the fine because the court finds that the imposition of the fine would place an undue burden on another party who did not violate the order. The fine shall be paid to the circuit clerk for deposit, pursuant to subsection (h) of Section 27.5 of the Clerks of Courts Act, into the Domestic Violence Victims Assistance Fund.

Section 15. The Illinois Domestic Violence Act of 1986 is amended by changing Section 223 as follows:

(750 ILCS 60/223) (from Ch. 40, par. 2312-23)

Sec. 223. Enforcement of orders of protection.

(a) When violation is crime. A violation of any order of protection, whether issued in a civil or criminal proceeding, shall be enforced by a criminal court when:

(1) The respondent commits the crime of violation of an order of protection pursuant to Section 12-30 of the Criminal Code of 1961, by having knowingly violated:

(i) remedies described in paragraphs (1), (2), (3), (14), or (14.5) of subsection (b) of Section 214 of this Act; or

(ii) a remedy, which is substantially similar to the remedies authorized under paragraphs (1), (2), (3), (14), and (14.5) of subsection (b) of Section 214 of this Act, in a valid order of protection which is authorized under the laws of another state, tribe, or United States territory; or

(iii) any other remedy when the act constitutes a crime against the protected parties as defined by the Criminal Code of 1961.

Prosecution for a violation of an order of protection shall not bar concurrent prosecution for any other crime, including any crime that may have been committed at the time of the violation of the order of protection; or

(2) The respondent commits the crime of child abduction pursuant to Section 10-5 of the Criminal Code of 1961, by having knowingly violated:

(i) remedies described in paragraphs (5), (6) or (8) of subsection (b) of Section 214 of this Act; or

(ii) a remedy, which is substantially similar to the remedies authorized under paragraphs (5), (6), or (8) of subsection (b) of Section 214 of this Act, in a valid order of protection which is authorized under the laws of another state, tribe, or United States territory.

(b) When violation is contempt of court. A violation of any valid Illinois order of protection, whether issued in a civil or criminal proceeding, may be enforced through civil or criminal contempt procedures, as appropriate, by any court with jurisdiction, regardless where the act or acts which violated the order of protection were committed, to the extent consistent with the venue provisions of this Act. Nothing in this Act shall preclude any Illinois court from enforcing any valid order of protection issued in another state. Illinois courts may enforce orders of protection through both criminal prosecution and contempt proceedings, unless the action which is second in time is barred by collateral estoppel or the constitutional prohibition against double jeopardy.

(1) In a contempt proceeding where the petition for a rule to show cause sets forth facts evidencing an immediate danger that the respondent will flee the jurisdiction, conceal a child, or inflict physical abuse on the petitioner or minor children or on dependent adults in petitioner's care, the court may order the attachment of the respondent without prior service of the rule to show cause or the petition for a rule to show cause. Bond shall be set unless specifically denied in writing.

(2) A petition for a rule to show cause for violation of an order of protection shall be treated as an expedited proceeding.

(c) Violation of custody or support orders. A violation of remedies described in paragraphs (5), (6), (8), or (9) of subsection (b) of Section 214 of this Act may be enforced by any remedy provided by Section 611 of the Illinois Marriage and Dissolution of Marriage Act. The court may enforce any order for support issued under paragraph (12) of subsection (b) of Section 214 in the manner provided for under Parts V and VII of the Illinois Marriage and Dissolution of Marriage Act.

(c-5) Violation of custody or visitation order. A violation of a portion of an order of protection concerning custody or visitation shall be enforced by a fine of $100, unless the court waives the fine because the court finds that the imposition of the fine would place an undue burden on another party who did not violate the order. The fine shall be paid to the circuit clerk for deposit, pursuant to subsection (h) of Section 27.5 of the Clerks of Courts Act, into the Domestic Violence Victims Assistance Fund.

(d) Actual knowledge. An order of protection may be enforced pursuant to this Section if the respondent violates the order after the respondent has actual knowledge of its contents as shown through one of the following means:

(1) By service, delivery, or notice under Section 210.

(2) By notice under Section 210.1 or 211.

(3) By service of an order of protection under Section 222.

(4) By other means demonstrating actual knowledge of the contents of the order.

(e) The enforcement of an order of protection in civil or criminal court shall not be affected by either of the following:

(1) The existence of a separate, correlative order, entered under Section 215.

(2) Any finding or order entered in a conjoined criminal proceeding.

(f) Circumstances. The court, when determining whether or not a violation of an order of protection has occurred, shall not require physical manifestations of abuse on the person of the victim.

(g) Penalties.

(1) Except as provided in paragraph (3) of this subsection, where the court finds the commission of a crime or contempt of court under subsections (a) or (b) of this Section, the penalty shall be the penalty that generally applies in such criminal or contempt proceedings, and may include one or more of the following: incarceration, payment of restitution, a fine, payment of attorneys' fees and costs, or community service.

(2) The court shall hear and take into account evidence of any factors in aggravation or mitigation before deciding an appropriate penalty under paragraph (1) of this subsection.

(3) To the extent permitted by law, the court is encouraged to:

(i) increase the penalty for the knowing violation of any order of protection over any penalty previously imposed by any court for respondent's violation of any order of protection or penal statute involving petitioner as victim and respondent as defendant;

(ii) impose a minimum penalty of 24 hours imprisonment for respondent's first violation of any order of protection; and

(iii) impose a minimum penalty of 48 hours imprisonment for respondent's second or subsequent violation of an order of protection

unless the court explicitly finds that an increased penalty or that period of imprisonment would be manifestly unjust.

(4) In addition to any other penalties imposed for a violation of an order of protection, a criminal court may consider evidence of any violations of an order of protection:

(i) to increase, revoke or modify the bail bond on an underlying criminal charge pursuant to Section 110-6 of the Code of Criminal Procedure of 1963;

(ii) to revoke or modify an order of probation, conditional discharge or supervision, pursuant to Section 5-6-4 of the Unified Code of Corrections;

(iii) to revoke or modify a sentence of periodic imprisonment, pursuant to Section 5-7-2 of the Unified Code of Corrections.

(5) In addition to any other penalties, the court shall impose an additional fine of $20 as authorized by Section 5-9-1.11 of the Unified Code of Corrections upon any person convicted of or placed on supervision for a violation of an order of protection. The additional fine shall be imposed for each violation of this Section.

(Source: P.A. 95-331, eff. 8-21-07.)

Section 20. The State Finance Act is amended by adding Section 5.755 and 6z-82 as follows:

(30 ILCS 105/5.755 new)

Sec. 5.755. The Domestic Violence Victims Assistance Fund.

(30 ILCS 105/6z-82 new)

Sec. 6z-82. Domestic Violence Victims Assistance Fund. The Domestic Violence Victims Assistance Fund is created as a special fund in the State treasury. Subject to appropriation and subject to approval by the Attorney General, the moneys in the Fund shall be paid as grants to public or private nonprofit entities that provide to domestic abuse victims pro bono legal assistance or domestic abuse advocacy pursuant to Section 205 of the Illinois Domestic Violence Act of 1986 for the purposes of facilitating or providing free domestic violence legal advocacy, assistance, or services to victims of domestic violence related to order of protection proceedings, dissolution of marriage proceedings, declaration of invalidity of marriage proceedings, legal separation proceedings, child custody proceedings, visitation proceedings, or other proceedings for civil remedies for domestic violence. The Attorney General shall adopt rules concerning application for and disbursement of the moneys in the Fund.