Full Text of SB1504 101st General Assembly
SB1504enr 101ST GENERAL ASSEMBLY |
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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 5-105 as follows:
| 6 | | (735 ILCS 5/5-105) (from Ch. 110, par. 5-105)
| 7 | | (Text of Section before amendment by P.A. 100-987 and | 8 | | 100-1161 )
| 9 | | Sec. 5-105. Leave to sue or defend as an indigent person.
| 10 | | (a) As used in this Section:
| 11 | | (1) "Fees, costs, and charges" means payments imposed | 12 | | on a party in
connection with the prosecution or defense of | 13 | | a civil action, including, but
not limited to: filing fees; | 14 | | appearance fees; fees for service of process and
other | 15 | | papers served either within or outside this State, | 16 | | including service by
publication pursuant to Section 2-206 | 17 | | of this Code and publication of necessary
legal notices; | 18 | | motion fees; jury demand fees; charges for participation | 19 | | in, or
attendance at, any mandatory process or procedure | 20 | | including, but not limited
to, conciliation, mediation, | 21 | | arbitration, counseling, evaluation, "Children
First", | 22 | | "Focus on Children" or similar programs; fees for | 23 | | supplementary
proceedings; charges for translation |
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| 1 | | services; guardian ad litem fees;
charges for certified | 2 | | copies of court documents; and all other processes and
| 3 | | procedures deemed by the court to be necessary to commence, | 4 | | prosecute, defend,
or enforce relief in a
civil action.
| 5 | | (2) "Indigent person" means any person who meets one or | 6 | | more of the
following criteria:
| 7 | | (i) He or she is receiving assistance under one or | 8 | | more of the
following
public benefits programs: | 9 | | Supplemental Security Income (SSI), Aid to the Aged,
| 10 | | Blind and Disabled (AABD), Temporary Assistance for | 11 | | Needy Families (TANF),
Food
Stamps, General | 12 | | Assistance, Transitional Assistance, or State Children
| 13 | | and Family Assistance.
| 14 | | (ii) His or her available income is 125% or less of | 15 | | the current
poverty
level as established by the United | 16 | | States Department of Health and Human
Services, unless | 17 | | the applicant's assets that are not exempt under Part 9 | 18 | | or 10
of Article XII of this Code are of a nature and | 19 | | value that the court determines
that the applicant is | 20 | | able to pay the fees, costs, and charges.
| 21 | | (iii) He or she is, in the discretion of the court, | 22 | | unable to proceed
in
an action without payment of fees, | 23 | | costs, and charges and whose payment of
those
fees, | 24 | | costs, and charges would result in substantial | 25 | | hardship to the person or
his or her family.
| 26 | | (iv) He or she is an indigent person pursuant to |
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| 1 | | Section 5-105.5 of this
Code.
| 2 | | (b) On the application of any person, before, or after the | 3 | | commencement of
an action, a court, on finding that the | 4 | | applicant is an indigent person, shall
grant the applicant | 5 | | leave to sue or defend the action without payment of the
fees, | 6 | | costs, and charges of the action.
| 7 | | (c) An application for leave to sue or defend an action as | 8 | | an indigent
person
shall be in writing and supported by the | 9 | | affidavit of the applicant or, if the
applicant is a minor or | 10 | | an incompetent adult, by the affidavit of another
person having | 11 | | knowledge of the facts. The contents of the affidavit shall be
| 12 | | established by Supreme Court Rule. The court shall provide, | 13 | | through the
office of the clerk of the court, simplified forms | 14 | | consistent with the
requirements of this Section and applicable | 15 | | Supreme Court Rules to any person
seeking to sue or defend an | 16 | | action who indicates an inability to pay the fees,
costs, and | 17 | | charges of the action. The application and supporting affidavit | 18 | | may
be incorporated into one simplified form. The clerk of the | 19 | | court shall post in
a conspicuous place in the courthouse a | 20 | | notice no smaller than 8.5 x 11 inches,
using no smaller than | 21 | | 30-point typeface printed in English and in Spanish,
advising
| 22 | | the public that they may ask the court for permission to sue or | 23 | | defend a civil
action without payment of fees, costs, and | 24 | | charges. The notice shall be
substantially as follows:
| 25 | | "If you are unable to pay the fees, costs, and charges | 26 | | of an action you may
ask the court to allow you to proceed |
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| 1 | | without paying them. Ask the clerk of
the court for forms."
| 2 | | (d) The court shall rule on applications under this Section | 3 | | in a timely
manner based on information contained in the | 4 | | application unless the court, in
its discretion, requires the
| 5 | | applicant to personally appear to explain or clarify | 6 | | information contained in
the application. If the court finds | 7 | | that the applicant is an indigent person,
the
court shall enter | 8 | | an order permitting the applicant to sue or defend
without | 9 | | payment of fees, costs, or charges. If the application is
| 10 | | denied,
the court shall enter an order to that effect stating | 11 | | the specific reasons for
the denial. The clerk of the court | 12 | | shall promptly mail or deliver a copy of the
order to the | 13 | | applicant.
| 14 | | (e) The clerk of the court shall not refuse to accept and | 15 | | file any
complaint,
appearance, or other paper presented by the | 16 | | applicant if accompanied by an
application to sue or defend in | 17 | | forma pauperis, and those papers shall be
considered filed on | 18 | | the date the application is presented. If the application
is | 19 | | denied, the order shall state a date certain by which the | 20 | | necessary fees,
costs, and charges must be paid. The court, for | 21 | | good cause shown, may allow an
applicant whose application is | 22 | | denied to defer payment of fees, costs, and
charges, make | 23 | | installment payments, or make payment upon reasonable terms and
| 24 | | conditions stated in the order. The court may dismiss the | 25 | | claims or defenses of
any party failing to pay the fees, costs, | 26 | | or charges within the time and in the
manner ordered by the |
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| 1 | | court. A determination concerning an application to sue
or | 2 | | defend
in forma pauperis shall not
be construed as a ruling on | 3 | | the merits.
| 4 | | (f) The court may order an indigent person to pay all or a | 5 | | portion of the
fees, costs, or charges waived pursuant to this | 6 | | Section out of moneys recovered
by the indigent person pursuant | 7 | | to a judgment or settlement resulting from the
civil action. | 8 | | However, nothing in this Section shall be construed to limit | 9 | | the
authority of a court to order another party to the action | 10 | | to pay the fees,
costs, or charges of the action.
| 11 | | (g) A court, in its discretion, may appoint counsel to | 12 | | represent an indigent
person, and that counsel shall perform | 13 | | his or her duties without fees, charges,
or reward.
| 14 | | (h) Nothing in this Section shall be construed to affect | 15 | | the right of a
party to sue or defend an action in forma | 16 | | pauperis without the payment of fees,
costs, or charges, or the | 17 | | right of a party to court-appointed counsel, as
authorized by | 18 | | any other provision of law or by the rules of the Illinois
| 19 | | Supreme Court.
| 20 | | (i) The provisions of this Section are severable under | 21 | | Section 1.31 of the
Statute on Statutes.
| 22 | | (Source: P.A. 97-689, eff. 6-14-12; 97-813, eff. 7-13-12.)
| 23 | | (Text of Section after amendment by P.A. 100-987 and | 24 | | 100-1161 )
| 25 | | Sec. 5-105. Waiver of court fees, costs, and charges.
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| 1 | | (a) As used in this Section:
| 2 | | (1) "Fees, costs, and charges" means payments imposed | 3 | | on a party in
connection with the prosecution or defense of | 4 | | a civil action, including, but
not limited to: fees set | 5 | | forth in Section 27.1b of the Clerks of Courts Act; fees | 6 | | for service of process and
other papers served either | 7 | | within or outside this State, including service by
| 8 | | publication pursuant to Section 2-206 of this Code and | 9 | | publication of necessary
legal notices; motion fees; | 10 | | charges for participation in, or
attendance at, any | 11 | | mandatory process or procedure including, but not limited
| 12 | | to, conciliation, mediation, arbitration, counseling, | 13 | | evaluation, "Children
First", "Focus on Children" or | 14 | | similar programs; fees for supplementary
proceedings; | 15 | | charges for translation services; guardian ad litem fees;
| 16 | | and all other processes and
procedures deemed by the court | 17 | | to be necessary to commence, prosecute, defend,
or enforce | 18 | | relief in a
civil action.
| 19 | | (2) "Indigent person" means any person who meets one or | 20 | | more of the
following criteria:
| 21 | | (i) He or she is receiving assistance under one or | 22 | | more of the
following means-based
governmental public | 23 | | benefits programs: Supplemental Security Income (SSI), | 24 | | Aid to the Aged,
Blind and Disabled (AABD), Temporary | 25 | | Assistance for Needy Families (TANF), Supplemental | 26 | | Nutrition Assistance Program (SNAP), General |
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| 1 | | Assistance, Transitional Assistance, or State Children
| 2 | | and Family Assistance.
| 3 | | (ii) His or her available personal income is 125% | 4 | | or less of the current
poverty
level, unless the | 5 | | applicant's assets that are not exempt under Part 9 or | 6 | | 10
of Article XII of this Code are of a nature and | 7 | | value that the court determines
that the applicant is | 8 | | able to pay the fees, costs, and charges.
| 9 | | (iii) He or she is, in the discretion of the court, | 10 | | unable to proceed
in
an action without payment of fees, | 11 | | costs, and charges and whose payment of
those
fees, | 12 | | costs, and charges would result in substantial | 13 | | hardship to the person or
his or her family.
| 14 | | (iv) He or she is an indigent person pursuant to | 15 | | Section 5-105.5 of this
Code.
| 16 | | (3) "Poverty level" means the current poverty level as | 17 | | established by the United States Department of Health and | 18 | | Human Services. | 19 | | (b) On the application of any person, before or after the | 20 | | commencement of
an action: | 21 | | (1) If the court finds that the applicant is an | 22 | | indigent person, the court shall
grant the applicant a full | 23 | | fees, costs, and charges waiver entitling him or her to sue | 24 | | or defend the action without payment of any of the
fees, | 25 | | costs, and charges. | 26 | | (2) If the court finds that the applicant satisfies any |
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| 1 | | of the criteria contained in items (i), (ii), or (iii) of | 2 | | this subdivision (b)(2), the court shall grant the | 3 | | applicant a partial fees, costs, and charges waiver | 4 | | entitling him or her to sue or defend the action upon | 5 | | payment of the applicable percentage of the assessments, | 6 | | costs, and charges of the action, as follows: | 7 | | (i) the court shall waive 75% of all fees, costs, | 8 | | and charges if the available income of the applicant is | 9 | | greater than 125% but does not exceed 150% of the | 10 | | poverty level, unless the assets of the applicant that | 11 | | are not exempt under Part 9 or 10 of Article XII of | 12 | | this Code are such that the applicant is able, without | 13 | | undue hardship, to pay a greater portion of the fees, | 14 | | costs, and charges; | 15 | | (ii) the court shall waive 50% of all fees, costs, | 16 | | and charges if the available income is greater than | 17 | | 150% but does not exceed 175% of the poverty level, | 18 | | unless the assets of the applicant that are not exempt | 19 | | under Part 9 or 10 of Article XII of this Code are such | 20 | | that the applicant is able, without undue hardship, to | 21 | | pay a greater portion of the fees, costs, and charges; | 22 | | and | 23 | | (iii) the court shall waive 25% of all fees, costs, | 24 | | and charges if the available income of the applicant is | 25 | | greater than 175% but does not exceed 200% of the | 26 | | current poverty level, unless the assets of the |
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| 1 | | applicant that are not exempt under Part 9 or 10 of | 2 | | Article XII of this Code are such that the applicant is | 3 | | able, without undue hardship, to pay a greater portion | 4 | | of the fees, costs, and charges.
| 5 | | (c) An application for waiver of court fees, costs, and | 6 | | charges
shall be in writing and signed by the applicant, or, if | 7 | | the
applicant is a minor or an incompetent adult, by another
| 8 | | person having knowledge of the facts. The contents of the | 9 | | application for waiver of court fees, costs, and charges, and | 10 | | the procedure for the decision of the applications, shall be
| 11 | | established by Supreme Court Rule. Factors to consider in | 12 | | evaluating an application shall include: | 13 | | (1) the applicant's receipt of needs based | 14 | | governmental public benefits, including Supplemental | 15 | | Security Income (SSI); Aid to the Aged, Blind and Disabled | 16 | | (ADBD); Temporary Assistance for Needy Families (TANF); | 17 | | Supplemental Nutrition Assistance Program (SNAP or "food | 18 | | stamps"); General Assistance; Transitional Assistance; or | 19 | | State Children and Family Assistance; | 20 | | (2) the employment status of the applicant and amount | 21 | | of monthly income, if any; | 22 | | (3) income received from the applicant's pension, | 23 | | Social Security benefits, unemployment benefits, and other | 24 | | sources; | 25 | | (4) income received by the applicant from other | 26 | | household members; |
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| 1 | | (5) the applicant's monthly expenses, including rent, | 2 | | home mortgage, other mortgage, utilities, food, medical, | 3 | | vehicle, childcare, debts, child support, and other | 4 | | expenses; and | 5 | | (6) financial affidavits or other similar supporting | 6 | | documentation provided by the applicant showing that | 7 | | payment of the imposed fees, costs, and charges would | 8 | | result in substantial hardship to the applicant or the | 9 | | applicant's family. | 10 | | (c-5) The court shall provide, through the
office of the | 11 | | clerk of the court, the application for waiver of court fees, | 12 | | costs, and charges to any person
seeking to sue or defend an | 13 | | action who indicates an inability to pay the fees,
costs, and | 14 | | charges of the action. The clerk of the court shall post in
a | 15 | | conspicuous place in the courthouse a notice no smaller than | 16 | | 8.5 x 11 inches,
using no smaller than 30-point typeface | 17 | | printed in English and in Spanish,
advising
the public that | 18 | | they may ask the court for permission to sue or defend a civil
| 19 | | action without payment of fees, costs, and charges. The notice | 20 | | shall be
substantially as follows:
| 21 | | "If you are unable to pay the fees, costs, and charges | 22 | | of an action you may
ask the court to allow you to proceed | 23 | | without paying them. Ask the clerk of
the court for forms."
| 24 | | (d) (Blank).
| 25 | | (e) The clerk of the court shall not refuse to accept and | 26 | | file any
complaint,
appearance, or other paper presented by the |
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| 1 | | applicant if accompanied by an
application for waiver of court | 2 | | fees, costs, and charges, and those papers shall be
considered | 3 | | filed on the date the application is presented. If the | 4 | | application
is denied or a partial fees, costs, and charges | 5 | | waiver is granted, the order shall state a date certain by | 6 | | which the necessary fees,
costs, and charges must be paid. For | 7 | | good cause shown, the court may allow an
applicant who receives | 8 | | a partial fees, costs, and charges waiver to defer payment of | 9 | | fees, costs, and
charges, make installment payments, or make | 10 | | payment upon reasonable terms and
conditions stated in the | 11 | | order. The court may dismiss the claims or strike the defenses | 12 | | of
any party failing to pay the fees, costs, and charges within | 13 | | the time and in the
manner ordered by the court. A judicial | 14 | | ruling on an application for waiver of court assessments does | 15 | | not constitute a decision of a substantial issue in the case | 16 | | under Section 2-1001 of this Code.
| 17 | | (f) The order granting a full or partial fees, costs, and | 18 | | charges waiver shall expire after one year. Upon expiration of | 19 | | the waiver, or a reasonable period of time before expiration, | 20 | | the party whose fees, costs, and charges were waived may file | 21 | | another application for waiver and the court shall consider the | 22 | | application in accordance with the applicable Supreme Court | 23 | | Rule.
| 24 | | (f-5) If, before or at the time of final disposition of the | 25 | | case, the court obtains information, including information | 26 | | from the court file, suggesting that a person whose fees, |
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| 1 | | costs, and charges were initially waived was not entitled to a | 2 | | full or partial waiver at the time of application, the court | 3 | | may require the person to appear at a court hearing by giving | 4 | | the applicant no less than 10 days' written notice of the | 5 | | hearing and the specific reasons why the initial waiver might | 6 | | be reconsidered. The court may require the applicant to provide | 7 | | reasonably available evidence, including financial | 8 | | information, to support his or her eligibility for the waiver, | 9 | | but the court shall not require submission of information that | 10 | | is unrelated to the criteria for eligibility and application | 11 | | requirements set forth in subdivision (b)(1) or (b)(2) of this | 12 | | Section. If the court finds that the person was not initially | 13 | | entitled to any waiver, the person shall pay all fees, costs, | 14 | | and charges relating to the civil action, including any | 15 | | previously waived fees, costs, and charges. The order may state | 16 | | terms of payment in accordance with subsection (e). The court | 17 | | shall not conduct a hearing under this subsection more often | 18 | | than once every 6 months. | 19 | | (f-10) If, before or at the time of final disposition of | 20 | | the case, the court obtains information, including information | 21 | | from the court file, suggesting that a person who received a | 22 | | full or partial waiver has experienced a change in financial | 23 | | condition so that he or she is no longer eligible for that | 24 | | waiver, the court may require the person to appear at a court | 25 | | hearing by giving the applicant no less than 10 days' written | 26 | | notice of the hearing and the specific reasons why the waiver |
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| 1 | | might be reconsidered. The court may require the person to | 2 | | provide reasonably available evidence, including financial | 3 | | information, to support his or her continued eligibility for | 4 | | the waiver, but shall not require submission of information | 5 | | that is unrelated to the criteria for eligibility and | 6 | | application requirements set forth in subdivisions (b)(1) and | 7 | | (b)(2) of this Section. If the court enters an order finding | 8 | | that the person is no longer entitled to a waiver, or is | 9 | | entitled to a partial waiver different than that which the | 10 | | person had previously received, the person shall pay the | 11 | | requisite fees, costs, and charges from the date of the order | 12 | | going forward. The order may state terms of payment in | 13 | | accordance with subsection (e) of this Section. The court shall | 14 | | not conduct a hearing under this subsection more often than | 15 | | once every 6 months. | 16 | | (g) A court, in its discretion, may appoint counsel to | 17 | | represent an indigent
person, and that counsel shall perform | 18 | | his or her duties without fees, charges,
or reward.
| 19 | | (h) Nothing in this Section shall be construed to affect | 20 | | the right of a
party to sue or defend an action in forma | 21 | | pauperis without the payment of fees,
costs, charges, or the | 22 | | right of a party to court-appointed counsel, as
authorized by | 23 | | any other provision of law or by the rules of the Illinois
| 24 | | Supreme Court. Nothing in this Section shall be construed to | 25 | | limit the authority of a court to order another party to the | 26 | | action to pay the fees, costs, and charges of the action.
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| 1 | | (h-5) If a party is represented by a civil legal services | 2 | | provider or an attorney in a court-sponsored pro bono program | 3 | | as defined in Section 5-105.5 of this Code, the attorney | 4 | | representing that party shall file a certification with the | 5 | | court in accordance with Supreme Court Rule 298 and that party | 6 | | shall be allowed to sue or defend without payment of fees, | 7 | | costs, and charges without filing an application under this | 8 | | Section. | 9 | | (h-10) (Blank). If an attorney files an appearance on | 10 | | behalf of a person whose fees, costs, and charges were | 11 | | initially waived under this Section, the attorney must pay all | 12 | | fees, costs, and charges relating to the civil action, | 13 | | including any previously waived fees, costs, and charges, | 14 | | unless the attorney is either a civil legal services provider, | 15 | | representing his or her client as part of a court-sponsored pro | 16 | | bono program as defined in Section 5-105.1 of this Code, or | 17 | | appearing under a limited scope appearance in accordance with | 18 | | Supreme Court Rule 13(c)(6). | 19 | | (i) The provisions of this Section are severable under | 20 | | Section 1.31 of the
Statute on Statutes.
| 21 | | (Source: P.A. 100-987, eff. 7-1-19; 100-1161, eff. 7-1-19.)
| 22 | | Section 95. No acceleration or delay. Where this Act makes | 23 | | changes in a statute that is represented in this Act by text | 24 | | that is not yet or no longer in effect (for example, a Section | 25 | | represented by multiple versions), the use of that text does |
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| 1 | | not accelerate or delay the taking effect of (i) the changes | 2 | | made by this Act or (ii) provisions derived from any other | 3 | | Public Act.
| 4 | | Section 99. Effective date. This Act takes effect upon | 5 | | becoming law.
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