Illinois General Assembly - Full Text of HB0087
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Full Text of HB0087  102nd General Assembly

HB0087 102ND GENERAL ASSEMBLY

  
  

 


 
102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB0087

 

Introduced 1/14/2021, 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 which he or she did not commit may file a petition for a certificate of innocence. Provides that the petitioner must prove that: the petitioner was incarcerated prior to trial in a prosecution that resulted in an acquittal or dismissal; the prosecution did not result in a conviction of a lesser included offense; 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 the petitioner did not by his or her own conduct voluntarily cause or bring about the charges that 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 award $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 and an additional $25,000 for each year served on parole, probation, or registered as a sex offender after imprisonment. Makes corresponding changes. Effective immediately.


LRB102 03670 LNS 13683 b

 

 

A BILL FOR

 

HB0087LRB102 03670 LNS 13683 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
11    of the State of Illinois or upon any regulation adopted
12    thereunder by an executive or administrative officer or
13    agency; provided, however, the court shall not have
14    jurisdiction (i) to hear or determine claims arising under
15    the Workers' Compensation Act or the Workers' Occupational
16    Diseases Act, or claims for expenses in civil litigation,
17    or (ii) to review administrative decisions for which a
18    statute provides that review shall be in the circuit or
19    appellate court.
20        (b) All claims against the State founded upon any
21    contract entered into with the State of Illinois.
22        (c) All claims against the State for time unjustly
23    served in prisons of this State or in a county jail when

 

 

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

 

 

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1    increase, if any, in the Consumer Price Index For All
2    Urban Consumers for the previous calendar year, as
3    determined by the United States Department of Labor,
4    except that no annual increment may exceed 5%. For the
5    annual adjustments, if the Consumer Price Index decreases
6    during a calendar year, there shall be no adjustment for
7    that calendar year. The transmission by the Prisoner
8    Review Board or the clerk of the circuit court of the
9    information described in Section 11(b) to the clerk of the
10    Court of Claims is conclusive evidence of the validity of
11    the claim. The changes made by Public Act 95-970 this
12    amendatory Act of the 95th General Assembly apply to all
13    claims pending on or filed on or after September 22, 2008
14    (the effective date of Public Act 95-970). The changes
15    made by this amendatory Act of the 102nd General Assembly
16    apply to all claims pending or filed on or after the
17    effective date of this amendatory Act of the 102nd General
18    Assembly.
19        (d) All claims against the State for damages in cases
20    sounding in tort, if a like cause of action would lie
21    against a private person or corporation in a civil suit,
22    and all like claims sounding in tort against the Medical
23    Center Commission, the Board of Trustees of the University
24    of Illinois, the Board of Trustees of Southern Illinois
25    University, the Board of Trustees of Chicago State
26    University, the Board of Trustees of Eastern Illinois

 

 

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1    University, the Board of Trustees of Governors State
2    University, the Board of Trustees of Illinois State
3    University, the Board of Trustees of Northeastern Illinois
4    University, the Board of Trustees of Northern Illinois
5    University, the Board of Trustees of Western Illinois
6    University, or the Board of Trustees of the Illinois
7    Mathematics and Science Academy; provided, that an award
8    for damages in a case sounding in tort, other than certain
9    cases involving the operation of a State vehicle described
10    in this paragraph, shall not exceed the sum of $2,000,000
11    to or for the benefit of any claimant. The $2,000,000
12    limit prescribed by this Section does not apply to an
13    award of damages in any case sounding in tort arising out
14    of the operation by a State employee of a vehicle owned,
15    leased or controlled by the State. The defense that the
16    State or the Medical Center Commission or the Board of
17    Trustees of the University of Illinois, the Board of
18    Trustees of Southern Illinois University, the Board of
19    Trustees of Chicago State University, the Board of
20    Trustees of Eastern Illinois University, the Board of
21    Trustees of Governors State University, the Board of
22    Trustees of Illinois State University, the Board of
23    Trustees of Northeastern Illinois University, the Board of
24    Trustees of Northern Illinois University, the Board of
25    Trustees of Western Illinois University, or the Board of
26    Trustees of the Illinois Mathematics and Science Academy

 

 

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1    is not liable for the negligence of its officers, agents,
2    and employees in the course of their employment is not
3    applicable to the hearing and determination of such
4    claims. The changes to this Section made by this
5    amendatory Act of the 100th General Assembly apply only to
6    claims filed on or after July 1, 2015.
7        The court shall annually adjust the maximum awards
8    authorized by this subsection to reflect the increase, if
9    any, in the Consumer Price Index For All Urban Consumers
10    for the previous calendar year, as determined by the
11    United States Department of Labor. The Comptroller shall
12    make the new amount resulting from each annual adjustment
13    available to the public via the Comptroller's official
14    website by January 31 of every year.
15        (e) All claims for recoupment made by the State of
16    Illinois against any claimant.
17        (f) All claims pursuant to the Line of Duty
18    Compensation Act. A claim under that Act must be heard and
19    determined within one year after the application for that
20    claim is filed with the Court as provided in that Act.
21        (g) All claims filed pursuant to the Crime Victims
22    Compensation Act.
23        (h) All claims pursuant to the Illinois National
24    Guardsman's Compensation Act. A claim under that Act must
25    be heard and determined within one year after the
26    application for that claim is filed with the Court as

 

 

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1    provided in that Act.
2        (i) All claims authorized by subsection (a) of Section
3    10-55 of the Illinois Administrative Procedure Act for the
4    expenses incurred by a party in a contested case on the
5    administrative level.
6(Source: P.A. 100-1124, eff. 11-27-18.)
 
7    (705 ILCS 505/11)  (from Ch. 37, par. 439.11)
8    Sec. 11. Filing claims.
9    (a) Except as otherwise provided in subsection (b) of this
10Section and subsection (4) of Section 24, the claimant shall
11in all cases set forth fully in his petition the claim, the
12action thereon, if any, on behalf of the State, what persons
13are owners thereof or interested therein, when and upon what
14consideration such persons became so interested; that no
15assignment or transfer of the claim or any part thereof or
16interest therein has been made, except as stated in the
17petition; that the claimant is justly entitled to the amount
18therein claimed from the State of Illinois, after allowing all
19just credits; and that claimant believes the facts stated in
20the petition to be true. The petition shall be verified, as to
21statements of facts, by the affidavit of the claimant, his
22agent, or attorney.
23    (b) Whenever a person has served a term of imprisonment
24and has received a pardon by the Governor stating that such
25pardon was issued on the ground of innocence of the crime for

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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1    vacated, and the indictment or information dismissed or,
2    if a new trial was ordered, either the petitioner was
3    found not guilty at the new trial or the petitioner was not
4    retried and the indictment or information dismissed; or
5    (B) the statute, or application thereof, on which the
6    indictment or information was based violated the
7    Constitution of the United States or the State of
8    Illinois;
9        (3) the petitioner is innocent of the offenses charged
10    in the indictment or information or his or her acts or
11    omissions charged in the indictment or information did not
12    constitute a felony or misdemeanor against the State; and
13        (4) the petitioner did not by his or her own conduct
14    voluntarily cause or bring about his or her conviction.
15    (g-5) If the petitioner was incarcerated prior to trial
16for 30 days or longer but not convicted of any of the charged
17offenses or a lesser included offense, in order to obtain a
18certificate of innocence, the petitioner must prove by a
19preponderance of evidence that:
20        (1) the petitioner was incarcerated prior to trial for
21    30 days or longer in a prosecution that resulted in an
22    acquittal or dismissal;
23        (2) the prosecution did not result in a conviction of
24    a lesser included offense;
25        (3) the petitioner is innocent of the charges on which
26    the petitioner's pretrial detention was based, or the

 

 

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

 

 

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1    All records sealed by the Department of State Police may
2be disseminated by the Department only as required by law or to
3the arresting authority, the State's Attorney, the court upon
4a later arrest for the same or similar offense, or for the
5purpose of sentencing for any subsequent felony. Upon
6conviction for any subsequent offense, the Department of
7Corrections shall have access to all sealed records of the
8Department pertaining to that individual.
9    Upon entry of the order of expungement, the clerk of the
10circuit court shall promptly mail a copy of the order to the
11person whose records were expunged and sealed.
12    (i) Any person seeking a certificate of innocence under
13this Section based on the dismissal of an indictment or
14information or acquittal that occurred before September 22,
152008 (the effective date of Public Act 95-970) this amendatory
16Act of the 95th General Assembly shall file his or her petition
17within 2 years after September 22, 2008 the effective date of
18this amendatory Act of the 95th General Assembly. Any person
19seeking a certificate of innocence under this Section based on
20the dismissal of an indictment or information or acquittal
21that occurred on or after September 22, 2008 the effective
22date of this amendatory Act of the 95th General Assembly shall
23file his or her 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
26in the Court of Claims and shall not have a res judicata effect

 

 

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