Full Text of HB0943 97th General Assembly
HB0943ham002 97TH GENERAL ASSEMBLY | Rep. Karen A. Yarbrough Filed: 4/13/2011
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| 1 | | AMENDMENT TO HOUSE BILL 943
| 2 | | AMENDMENT NO. ______. Amend House Bill 943 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Code of Civil Procedure is amended by | 5 | | changing Section 5-105 as follows:
| 6 | | (735 ILCS 5/5-105) (from Ch. 110, par. 5-105)
| 7 | | Sec. 5-105. Leave to sue or defend as an indigent person.
| 8 | | (a) As used in this Section:
| 9 | | (1) "Fees, costs, and charges" means payments imposed | 10 | | on a party in
connection with the prosecution or defense of | 11 | | a civil action, including, but
not limited to: filing fees; | 12 | | appearance fees; fees for service of process and
other | 13 | | papers served either within or outside this State, | 14 | | including service by
publication pursuant to Section 2-206 | 15 | | of this Code and publication of necessary
legal notices; | 16 | | motion fees; jury demand fees; charges for participation |
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| 1 | | in, or
attendance at, any mandatory process or procedure | 2 | | including, but not limited
to, conciliation, mediation, | 3 | | arbitration, counseling, evaluation, "Children
First", | 4 | | "Focus on Children" or similar programs; fees for | 5 | | supplementary
proceedings; charges for translation | 6 | | services; guardian ad litem fees;
charges for certified | 7 | | copies of court documents; and all other processes and
| 8 | | procedures deemed by the court to be necessary to commence, | 9 | | prosecute, defend,
or enforce relief in a
civil action.
| 10 | | (2) "Indigent person" means any natural person who | 11 | | meets one or more of the
following criteria:
| 12 | | (i) He or she is receiving assistance under one or | 13 | | more of the
following
public benefits programs: | 14 | | Supplemental Security Income (SSI), Aid to the Aged,
| 15 | | Blind and Disabled (AABD), Temporary Assistance for | 16 | | Needy Families (TANF),
Food
Stamps, General | 17 | | Assistance, State Transitional Assistance, or State | 18 | | Children
and Family Assistance.
| 19 | | (ii) His or her available income is 125% or less of | 20 | | the current
poverty
level as established by the United | 21 | | States Department of Health and Human
Services, unless | 22 | | the applicant's assets that are not exempt under Part 9 | 23 | | or 10
of Article XII of this Code are of a nature and | 24 | | value that the court determines
that the applicant is | 25 | | able to pay the fees, costs, and charges.
| 26 | | (iii) He or she is, in the discretion of the court, |
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| 1 | | unable to proceed
in
an action without payment of fees, | 2 | | costs, and charges and who is unable to give security | 3 | | therefor, and whose payment of
those
fees, costs, and | 4 | | charges , or security therefor, would result in | 5 | | substantial hardship to the person or
his or her | 6 | | family.
| 7 | | (iv) He or she is an indigent person pursuant to | 8 | | Section 5-105.5 of this
Code.
| 9 | | (b) On the application of any person, before, or after the | 10 | | commencement of
an action and on a yearly basis within the same | 11 | | action thereafter when the petition is granted , a court, on | 12 | | finding that the applicant is an indigent person and that no | 13 | | other person beneficially interested in the recovery sought is | 14 | | able to pay the fees, costs, and charges of the action , shall
| 15 | | grant the applicant leave to sue or defend the action without | 16 | | payment of the
fees, costs, and charges of the action.
| 17 | | (c) An application for leave to sue or defend an action as | 18 | | an indigent
person
shall be in writing and supported by the | 19 | | affidavit of the applicant or, if the
applicant is a minor or | 20 | | an incompetent adult, by the affidavit of another
person having | 21 | | knowledge of the facts. The affidavit shall state that it is | 22 | | sworn under penalty of perjury and shall be sworn before a | 23 | | notary public or other officer authorized to administer oaths. | 24 | | The contents of the affidavit shall be
established by Supreme | 25 | | Court Rule. The court may require the moving party to file with | 26 | | the affidavit a copy of the applicant's most recent State and |
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| 1 | | federal income tax returns and a certificate of an attorney | 2 | | stating that the attorney has examined the action and believes | 3 | | there is merit to the moving party's contentions. An applicant | 4 | | may not pay a fee for preparation of an indigent application | 5 | | unless the preparation of the application is part of a | 6 | | contingency fee agreement described in subsection (g). Any | 7 | | other party in interest may contest the truth of an affidavit | 8 | | of indigency by verifying affirmatively under oath that the | 9 | | same is untrue. The issue that arises from the affidavits shall | 10 | | be heard and determined by the court. The court shall provide, | 11 | | through the
office of the clerk of the court, simplified forms | 12 | | consistent with the
requirements of this Section and applicable | 13 | | Supreme Court Rules to any person
seeking to sue or defend an | 14 | | action who indicates an inability to pay the fees,
costs, and | 15 | | charges of the action. The application and supporting affidavit | 16 | | may
be incorporated into one simplified form. The clerk of the | 17 | | court shall post in
a conspicuous place in the courthouse a | 18 | | notice no smaller than 8.5 x 11 inches,
using no smaller than | 19 | | 30-point typeface printed in English and in Spanish,
advising
| 20 | | the public that they may ask the court for permission to sue or | 21 | | defend a civil
action without payment of fees, costs, and | 22 | | charges. The notice shall be
substantially as follows:
| 23 | | "If you are unable to pay the fees, costs, and charges | 24 | | of an action you may
ask the court to allow you to proceed | 25 | | without paying them. However, you will be required to | 26 | | reimburse these court fees, costs, and charges at the end |
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| 1 | | of the case if you receive a monetary judgment or | 2 | | settlement. Ask the clerk of
the court for forms."
| 3 | | (c-1) In addition to filing the affidavit required by | 4 | | subsection (c), if the applicant in a civil action is a | 5 | | prisoner, the applicant shall be required to pay the full | 6 | | amount of any filing fees. At the time the application and | 7 | | affidavit are filed, the applicant prisoner shall submit a | 8 | | certified copy of the trust fund account statement (or | 9 | | institutional equivalent) for the prisoner for the 6-month | 10 | | period immediately preceding the filing of the complaint or | 11 | | appearance, obtained from the appropriate official of each | 12 | | prison at which the prisoner is or was confined. The court | 13 | | shall assess and, when funds exist, collect, as partial payment | 14 | | of any court fees required by law, an initial filing fee of 20% | 15 | | of the greater of (1) the average monthly deposits to the | 16 | | prisoner's account, or (2) the average monthly balance in the | 17 | | prisoner's account for the 6-month period immediately | 18 | | preceding the filing of the complaint or notice of appeal. | 19 | | After payment of the initial filing fee, the prisoner shall be | 20 | | required to make monthly payments of 20% of the preceding | 21 | | month's income credited to the prisoner's account until the | 22 | | court fees are paid. The agency having custody of the prisoner | 23 | | shall forward payments from the prisoner's account to the clerk | 24 | | of court each time the amount in the account exceeds $10 until | 25 | | the court fees are paid. In no event shall the court fees | 26 | | collected exceed the amount of fees permitted by statute, and |
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| 1 | | in no event shall a prisoner be prohibited from bringing a | 2 | | civil action or appealing a civil judgment for the reason that | 3 | | the prisoner has no assets and no means by which to pay the | 4 | | court fees. | 5 | | (c-2) In an action for dissolution of marriage or spousal | 6 | | maintenance, if the applicant is determined by the court to be | 7 | | an indigent person, the court shall require the payment of the | 8 | | applicant's fees and costs to be paid by the spouse. If the | 9 | | spouse is determined to be an indigent person, the applicant | 10 | | and spouse may proceed without payment of the fees, costs, and | 11 | | charges of the action. | 12 | | (d) The court shall rule on applications under this Section | 13 | | in a timely
manner based on information contained in the | 14 | | application and tax returns unless the court, in
its | 15 | | discretion, requires the
applicant to personally appear to | 16 | | explain or clarify information contained in
the application. If | 17 | | the court finds that the applicant is an indigent person,
the
| 18 | | court shall enter an order permitting the applicant to sue or | 19 | | defend
without payment of fees, costs, or charges. If the | 20 | | application is
denied,
the court shall enter an order to that | 21 | | effect stating the specific reasons for
the denial. If the | 22 | | court denies the application, the court will give notice to the | 23 | | applicant by written order that the case will be dismissed if | 24 | | the fee is not paid within 90 days after the date of the order, | 25 | | unless otherwise ordered by the court. The clerk of the court | 26 | | shall promptly mail or deliver a copy of the
order to the |
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| 1 | | applicant.
| 2 | | (e) The clerk of the court shall not refuse to accept and | 3 | | file any
complaint,
appearance, or other paper presented by the | 4 | | applicant if accompanied by an
application to sue or defend in | 5 | | forma pauperis, and those papers shall be
considered filed on | 6 | | the date the application is presented. If the application
is | 7 | | denied, the order shall state a date certain by which the | 8 | | necessary fees,
costs, and charges must be paid. Unless | 9 | | otherwise ordered by the court, if the necessary fees, costs, | 10 | | and charges are not paid within 90 days after the denial, the | 11 | | case shall be dismissed. The court, for good cause shown, may | 12 | | allow an
applicant whose application is denied to defer payment | 13 | | of fees, costs, and
charges, make installment payments, or make | 14 | | payment upon reasonable terms and
conditions stated in the | 15 | | order. The court's order shall contain the payment due date and | 16 | | payment amount. The court shall may dismiss the claims or | 17 | | defenses of
any party failing to pay the fees, costs, or | 18 | | charges within 90 days after the time and in the
manner ordered | 19 | | by the court. A determination concerning an application to sue
| 20 | | or defend
in forma pauperis shall not
be construed as a ruling | 21 | | on the merits.
| 22 | | (f) The court shall may order the non-prevailing party, who | 23 | | is paying the judgment or settlement, an indigent person to | 24 | | first pay to the clerk of the circuit court and to the sheriff | 25 | | for service of process, if any, all or a portion of the
fees, | 26 | | costs, or charges waived pursuant to this Section out of moneys |
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| 1 | | recovered
by the indigent person pursuant to a judgment or | 2 | | settlement resulting from the
civil action , in an amount not to | 3 | | exceed the amount of the settlement or judgment. If the court | 4 | | has paid on behalf of the prevailing party the cost of | 5 | | stenographic transcript, printed record, postage, service by | 6 | | publication, notice by publication, translation services, or | 7 | | any other fee, cost, or charge, the same shall be taxed in | 8 | | favor of the court and paid by the non-prevailing party from | 9 | | the judgment or settlement . However, nothing is this Section | 10 | | shall be construed to limit the
authority of a court to order | 11 | | another party to the action to pay the fees,
costs, or charges | 12 | | of the action. If a judgment against a prisoner includes the | 13 | | payment of costs under this subsection, the prisoner shall be | 14 | | required to pay the full amount of the costs ordered. The | 15 | | prisoner shall be required to make payments for costs under | 16 | | this subsection in the same manner as provided for filing fees | 17 | | under subsection (c-1). In no event shall the costs collected | 18 | | exceed the amount of the costs ordered by the court.
| 19 | | (g) A court, in its discretion, may appoint counsel to | 20 | | represent an indigent
person, and that counsel shall perform | 21 | | his or her duties without fees, charges,
or reward. An | 22 | | applicant under this Section may proceed pro se, or may be | 23 | | represented by court-appointed counsel pursuant to this | 24 | | subsection, a civil legal services provider pursuant to | 25 | | subsection (a)(2)(iv), or another attorney representing the | 26 | | person on a contingent fee basis or without fees, charges, or |
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| 1 | | reward. Any applicant represented by an attorney shall be | 2 | | represented without fees, charges, or reward or on a contingent | 3 | | fee basis, or shall immediately file a motion with the court to | 4 | | have the indigent status invalidated with all fees, costs, and | 5 | | charges in the case immediately due. If the attorney enters | 6 | | into a contingency fee agreement with the applicant, the amount | 7 | | of the court fees, costs, and charges to be paid from the | 8 | | judgment or settlement pursuant to subsection (e) shall not be | 9 | | considered as part of the judgment or settlement amount for | 10 | | purposes of the contingency fee agreement. If the applicant | 11 | | fails to file a motion to invalidate the indigent status within | 12 | | 10 days after the filing of the appearance in the case, the | 13 | | clerk of the circuit court shall send a notice to the applicant | 14 | | and the applicant's attorney notifying them that the case will | 15 | | be dismissed within 30 days unless all fees, costs, and charges | 16 | | in the case are immediately paid. If all fees, costs, and | 17 | | charges in the case are not paid within 30 days, the case shall | 18 | | be dismissed.
| 19 | | (g-1) Notwithstanding any filing fee, or any portion | 20 | | thereof, that may have been paid, the court shall revoke the | 21 | | provision of any relief under this Section and dismiss the case | 22 | | at any time, on its own initiative or upon motion, if the court | 23 | | determines that (1) the allegation of poverty is untrue, or (2) | 24 | | the action or appeal (i) is frivolous, malicious, has no | 25 | | arguable basis in law or fact, or reasonably appears to be | 26 | | intended to harass one or more named defendants, (ii) fails to |
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| 1 | | state a claim on which relief may be granted, (iii) seeks | 2 | | monetary relief against a defendant who is immune from such | 3 | | relief, (iv) seeks relief for mental or emotional injury where | 4 | | there has been no related allegation of a physical injury, or | 5 | | (v) is substantially similar to a previous claim filed by the | 6 | | applicant in that it involves the same parties or arises from | 7 | | the same operative facts as a previous claim. This Section | 8 | | shall be construed liberally in favor of the applicant. | 9 | | (g-2) A person who knowingly provides false information to | 10 | | the court in seeking a determination of indigent status under | 11 | | this Section commits a Class C misdemeanor. If the court has | 12 | | reason to believe that any applicant, through fraud or | 13 | | misrepresentation, was improperly determined to be indigent, | 14 | | the matter shall be referred by the court to the State's | 15 | | Attorney. | 16 | | (h) Nothing in this Section shall be construed to affect | 17 | | the right of a
party to sue or defend an action in forma | 18 | | pauperis without the payment of fees,
costs, or charges, or the | 19 | | right of a party to court-appointed counsel, as
authorized by | 20 | | any other provision of law or by the rules of the Illinois
| 21 | | Supreme Court.
| 22 | | (i) The provisions of this Section are severable under | 23 | | Section 1.31 of the
Statute on Statutes.
| 24 | | (Source: P.A. 91-621, eff. 8-19-99.)".
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