Full Text of HB4281 101st General Assembly
HB4281 101ST GENERAL ASSEMBLY |
| | 101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020 HB4281 Introduced 1/28/2020, by Rep. Lindsay Parkhurst SYNOPSIS AS INTRODUCED: |
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735 ILCS 5/2-1401 | from Ch. 110, par. 2-1401 |
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Amends the Post-Judgment Article of the Code of Civil Procedure. Provides that a movant may present a meritorious claim for relief from a final order or judgment if the allegations in the petition establish, by a preponderance of the evidence, that the law under which the movant was convicted has been held by the Supreme Court of the State or the United States Supreme Court to be facially unconstitutional.
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| | 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,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Code of Civil Procedure is amended by | 5 | | changing Section 2-1401 as follows:
| 6 | | (735 ILCS 5/2-1401) (from Ch. 110, par. 2-1401)
| 7 | | Sec. 2-1401. Relief from judgments.
| 8 | | (a) Relief from final orders and judgments, after 30 days | 9 | | from the
entry thereof, may be had upon petition as provided in | 10 | | this Section.
Writs of error coram nobis and coram vobis, bills | 11 | | of review and bills
in the nature of bills of review are | 12 | | abolished. All relief heretofore
obtainable and the grounds for | 13 | | such relief heretofore available,
whether by any of the | 14 | | foregoing remedies or otherwise, shall be
available in every | 15 | | case, by proceedings hereunder, regardless of the
nature of the | 16 | | order or judgment from which relief is sought or of the
| 17 | | proceedings in which it was entered. Except as provided in the | 18 | | Illinois Parentage Act of 2015, there shall be no distinction
| 19 | | between actions and other proceedings, statutory or otherwise, | 20 | | as to
availability of relief, grounds for relief or the relief | 21 | | obtainable.
| 22 | | (b) The petition must be filed in the same proceeding in | 23 | | which the
order or judgment was entered but is not a |
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| 1 | | continuation thereof. The
petition must be supported by | 2 | | affidavit or other appropriate showing as
to matters not of | 3 | | record. A petition to reopen a foreclosure proceeding must | 4 | | include as parties to the petition, but is not limited to, all | 5 | | parties in the original action in addition to the current | 6 | | record title holders of the property, current occupants, and | 7 | | any individual or entity that had a recorded interest in the | 8 | | property before the filing of the petition. All parties to the | 9 | | petition shall be notified
as provided by rule.
| 10 | | (b-5) A movant may present a meritorious claim under this | 11 | | Section if the allegations in the petition establish each of | 12 | | the following by a preponderance of the evidence: | 13 | | (1) the movant was convicted of a forcible felony; | 14 | | (2) the movant's participation in the offense was | 15 | | related to him or her previously having been a victim of | 16 | | domestic violence as perpetrated by an intimate partner; | 17 | | (3) no evidence of domestic violence against the movant | 18 | | was presented at the movant's sentencing hearing; | 19 | | (4) the movant was unaware of the mitigating nature of | 20 | | the evidence of the domestic violence at the time of | 21 | | sentencing and could not have learned of its significance | 22 | | sooner through diligence; and | 23 | | (5) the new evidence of domestic violence against the | 24 | | movant is material and noncumulative to other evidence | 25 | | offered at the sentencing hearing, and is of such a | 26 | | conclusive character that it would likely change the |
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| 1 | | sentence imposed by the original trial court. | 2 | | Nothing in this subsection (b-5) shall prevent a movant | 3 | | from applying for any other relief under this Section or any | 4 | | other law otherwise available to him or her. | 5 | | As used in this subsection (b-5): | 6 | | "Domestic violence" means abuse as defined in Section | 7 | | 103
of the Illinois Domestic Violence Act of 1986. | 8 | | "Forcible felony" has the meaning ascribed to the term | 9 | | in
Section 2-8 of the Criminal Code of 2012. | 10 | | "Intimate partner" means a spouse or former spouse, | 11 | | persons
who have or allegedly have had a child in common, | 12 | | or persons who
have or have had a dating or engagement | 13 | | relationship. | 14 | | (b-10) A movant may present a meritorious claim under this | 15 | | Section if the allegations in the petition establish each of | 16 | | the following by a preponderance of the evidence: | 17 | | (A) she was convicted of a forcible felony; | 18 | | (B) her participation in the offense was a direct | 19 | | result of her suffering from post-partum depression or | 20 | | post-partum psychosis; | 21 | | (C) no evidence of post-partum depression or | 22 | | post-partum psychosis was presented by a qualified medical | 23 | | person at trial or sentencing, or both; | 24 | | (D) she was unaware of the mitigating nature of the | 25 | | evidence or, if aware, was at the time unable to present | 26 | | this defense due to suffering from post-partum depression |
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| 1 | | or post-partum psychosis, or, at the time of trial or | 2 | | sentencing, neither was a recognized mental illness and as | 3 | | such, she was unable to receive proper treatment;
and | 4 | | (E) evidence of post-partum depression or post-partum | 5 | | psychosis as suffered by the person is material and | 6 | | noncumulative to other evidence offered at the time of | 7 | | trial or sentencing, and it is of such a conclusive | 8 | | character that it would likely change the sentence imposed | 9 | | by the original court. | 10 | | Nothing in this subsection (b-10) prevents a person from | 11 | | applying for any other relief under this Article or any other | 12 | | law otherwise available to her. | 13 | | As used in this subsection (b-10): | 14 | | "Post-partum depression" means a mood disorder which | 15 | | strikes many women during and after pregnancy and usually | 16 | | occurs during pregnancy and up to 12 months after delivery. | 17 | | This depression can include anxiety disorders. | 18 | | "Post-partum psychosis" means an extreme form of | 19 | | post-partum depression which can occur during pregnancy | 20 | | and up to 12 months after delivery. This can include losing | 21 | | touch with reality, distorted thinking, delusions, | 22 | | auditory and visual hallucinations, paranoia, | 23 | | hyperactivity and rapid speech, or mania. | 24 | | (b-15) A movant may present a meritorious claim under this | 25 | | Section if the allegations in the petition establish, by a | 26 | | preponderance of the evidence, that the law under which the |
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| 1 | | movant was convicted has been held by the Supreme Court of this | 2 | | State or the United States Supreme Court to be facially | 3 | | unconstitutional. | 4 | | (c) Except as provided in Section 20b of the Adoption Act | 5 | | and Section
2-32 of the Juvenile Court Act of 1987 or in a | 6 | | petition based
upon Section 116-3 of the Code of Criminal | 7 | | Procedure of 1963 or subsection (b-10) of this Section, or in a | 8 | | motion to vacate and expunge convictions under the Cannabis | 9 | | Control Act as provided by subsection (i) of Section 5.2 of the | 10 | | Criminal Identification Act, the petition
must be filed not | 11 | | later than 2 years after the entry of the order or judgment.
| 12 | | Time during which the person seeking relief is under legal | 13 | | disability or
duress or the ground for relief is fraudulently | 14 | | concealed shall be excluded
in computing the period of 2 years.
| 15 | | (d) The filing of a petition under this Section does not | 16 | | affect the
order or judgment, or suspend its operation.
| 17 | | (e) Unless lack of jurisdiction affirmatively appears from | 18 | | the
record proper, the vacation or modification of an order or | 19 | | judgment
pursuant to the provisions of this Section does not | 20 | | affect the right,
title or interest in or to any real or | 21 | | personal property of any person,
not a party to the original | 22 | | action, acquired for value after the entry
of the order or | 23 | | judgment but before the filing of the petition, nor
affect any | 24 | | right of any person not a party to the original action under
| 25 | | any certificate of sale issued before the filing of the | 26 | | petition,
pursuant to a sale based on the order or judgment. |
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| 1 | | When a petition is filed pursuant to this Section to reopen a | 2 | | foreclosure proceeding, notwithstanding the provisions of | 3 | | Section 15-1701 of this Code, the purchaser or successor | 4 | | purchaser of real property subject to a foreclosure sale who | 5 | | was not a party to the mortgage foreclosure proceedings is | 6 | | entitled to remain in possession of the property until the | 7 | | foreclosure action is defeated or the previously foreclosed | 8 | | defendant redeems from the foreclosure sale if the purchaser | 9 | | has been in possession of the property for more than 6 months.
| 10 | | (f) Nothing contained in this Section affects any existing | 11 | | right to
relief from a void order or judgment, or to employ any | 12 | | existing method
to procure that relief.
| 13 | | (Source: P.A. 100-1048, eff. 8-23-18; 101-27, eff. 6-25-19; | 14 | | 101-411, eff. 8-16-19; revised 9-17-19.)
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