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90_SB0602
735 ILCS 5/5-105 from Ch. 110, par. 5-105
735 ILCS 5/5-105.5
Amends the Code of Civil Procedure. Replaces existing
provisions concerning waiver of court costs for poor persons
with provisions authorizing a court to waive court costs and
other fees of a person who meets specified income criteria or
who receives certain types of public assistance. Authorizes
a court to appoint counsel to represent an indigent person.
Deletes language providing that a party represented by a
civil legal services provider is entitled to transcripts on
appeal without charge and without the necessity of a motion.
Effective immediately.
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1 AN ACT to amend the Code of Civil Procedure by changing
2 Sections 5-105 and 5-105.5.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Code of Civil Procedure is amended by
6 changing Sections 5-105 and 5-105.5 as follows:
7 (735 ILCS 5/5-105) (from Ch. 110, par. 5-105)
8 Sec. 5-105. Leave to sue or defend as an indigent
9 person.
10 (a) As used in this Section:
11 (1) "Fees, costs, and charges" means payments
12 imposed on a party in connection with the prosecution or
13 defense of a civil action, including, but not limited to:
14 filing fees; appearance fees; fees for service of process
15 and other papers served either within or outside this
16 State, including service by publication pursuant to
17 Section 2-206 of this Code and publication of necessary
18 legal notices; motion fees; jury demand fees; charges for
19 participation in, or attendance at, any mandatory process
20 or procedure including, but not limited to, conciliation,
21 mediation, arbitration, counseling, evaluation, "Children
22 First", "Focus on Children" or similar programs; fees for
23 supplementary proceedings; charges for translation
24 services; guardian ad litem fees; charges for certified
25 copies of court documents; and all other processes and
26 procedures deemed by the court to be necessary to
27 commence, prosecute, defend, or enforce relief in a civil
28 action.
29 (2) "Indigent person" means any person who meets
30 one or more of the following criteria:
31 (i) He or she is receiving assistance under
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1 one or more of the following public benefits
2 programs: Supplemental Security Income (SSI), Aid
3 to the Aged, Blind and Disabled (AABD), Aid to
4 Families with Dependent Children (AFDC), Food
5 Stamps, General Assistance, State Transitional
6 Assistance, or State Children and Family Assistance.
7 (ii) His or her available income is 125% or
8 less of the current poverty level as established by
9 the United States Department of Health and Human
10 Services, unless the applicant's assets that are not
11 exempt under Part 9 or 10 of Article XII of this
12 Code are of a nature and value that the court
13 determines that the applicant is able to pay the
14 fees, costs, and charges.
15 (iii) He or she is, in the discretion of the
16 court, unable to proceed in an action without
17 payment of fees, costs, and charges and whose
18 payment of those fees, costs, and charges would
19 result in substantial hardship to the person or his
20 or her family.
21 (iv) He or she is an indigent person pursuant
22 to Section 5-105.5 of this Code.
23 (b) On the application of any person, before, or after
24 the commencement of an action, a court, on finding that the
25 applicant is an indigent person, shall grant the applicant
26 leave to sue or defend the action without payment of the
27 fees, costs, and charges of the action.
28 (c) An application for leave to sue or defend an action
29 as an indigent person shall be in writing and supported by
30 the affidavit of the applicant or, if the applicant is a
31 minor or an incompetent adult, by the affidavit of another
32 person having knowledge of the facts. The contents of the
33 affidavit shall be established by Supreme Court Rule. The
34 court shall provide, through the office of the clerk of the
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1 court, simplified forms consistent with the requirements of
2 this Section and applicable Supreme Court Rules to any person
3 seeking to sue or defend an action who indicates an inability
4 to pay the fees, costs, and charges of the action. The
5 application and supporting affidavit may be incorporated into
6 one simplified form. The clerk of the court shall post in a
7 conspicuous place in the courthouse a notice no smaller than
8 8.5 x 11 inches, using no smaller than 30-point typeface
9 printed in English and in Spanish, advising the public that
10 they may ask the court for permission to sue or defend a
11 civil action without payment of fees, costs, and charges.
12 The notice shall be substantially as follows:
13 "If you are unable to pay the fees, costs, and
14 charges of an action you may ask the court to allow you
15 to proceed without paying them. Ask the clerk of the
16 court for forms."
17 (d) The court shall rule on applications under this
18 Section in a timely manner based on information contained in
19 the application unless the court, in its discretion, requires
20 the applicant to personally appear to explain or clarify
21 information contained in the application. If the court finds
22 that the applicant is an indigent person, the court shall
23 enter an order permitting the applicant to sue or defend
24 without payment of fees, costs, or charges. If the
25 application is denied, the court shall enter an order to that
26 effect stating the specific reasons for the denial. The clerk
27 of the court shall promptly mail or deliver a copy of the
28 order to the applicant.
29 (e) The clerk of the court shall not refuse to accept
30 and file any complaint, appearance, or other paper presented
31 by the applicant if accompanied by an application to sue or
32 defend in forma pauperis, and those papers shall be
33 considered filed on the date the application is presented. If
34 the application is denied, the order shall state a date
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1 certain by which the necessary fees, costs, and charges must
2 be paid. The court, for good cause shown, may allow an
3 applicant whose application is denied to defer payment of
4 fees, costs, and charges, make installment payments, or make
5 payment upon reasonable terms and conditions stated in the
6 order. The court may dismiss the claims or defenses of any
7 party failing to pay the fees, costs, or charges within the
8 time and in the manner ordered by the court. A determination
9 concerning an application to sue or defend in forma pauperis
10 shall not be construed as a ruling on the merits.
11 (f) The court may order an indigent person to pay all or
12 a portion of the fees, costs, or charges waived pursuant to
13 this Section out of moneys recovered by the indigent person
14 pursuant to a judgment or settlement resulting from the civil
15 action. However, nothing is this Section shall be construed
16 to limit the authority of a court to order another party to
17 the action to pay the fees, costs, or charges of the action.
18 (g) A court, in its discretion, may appoint counsel to
19 represent an indigent person, and that counsel shall perform
20 his or her duties without fees, charges, or reward.
21 (h) Nothing in this Section shall be construed to affect
22 the right of a party to sue or defend an action in forma
23 pauperis without the payment of fees, costs, or charges, or
24 the right of a party to court-appointed counsel, as
25 authorized by any other provision of law or by the rules of
26 the Illinois Supreme Court.
27 (i) The provisions of this Section are severable under
28 Section 1.31 of the Statute on Statutes. Poor person. If
29 any court shall, before or after the commencement of an
30 action, be satisfied that the plaintiff or defendant is a
31 poor person, and unable to prosecute or defend the action and
32 pay the costs and expenses thereof, the court may, in its
33 discretion, permit him or her to commence and prosecute the
34 action, or defend the action, as a poor person, and thereupon
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1 such person shall have all the necessary processes,
2 appearances and proceedings, as in other civil cases, without
3 fees or charges. The court may assign to such person counsel,
4 who, as well as all other officers of the court, shall
5 perform their duties in such action without any fees, charge
6 or reward. If judgment is entered in favor of the plaintiff
7 or defendant judgment shall be entered for costs in favor of
8 the successful party; which costs shall be collected for the
9 use of the officers. If the action is settled without the
10 entry of judgment, the party who has thus been permitted to
11 sue or defend as a poor person shall nevertheless be under
12 the duty of paying forthwith to the clerk of the court and
13 the sheriff respectively, out of any moneys or property
14 received by him or her or on his or her account as the
15 proceeds of any such settlement, the amount of all fees and
16 charges which but for the leave given to sue or defend as a
17 poor person, such party would have been required to advance
18 to such officers respectively.
19 (Source: P.A. 83-707.)
20 (735 ILCS 5/5-105.5)
21 Sec. 5-105.5. Representation by civil legal services
22 provider.
23 (a) As used in this Section:
24 "Civil legal services" means legal services in
25 noncriminal matters provided without charge to indigent
26 persons who have been found eligible under financial
27 eligibility guidelines established by the civil legal
28 services provider.
29 "Civil legal services provider" means a not-for-profit
30 corporation that (i) employs one or more attorneys who are
31 licensed to practice law in the State of Illinois and who
32 directly provide civil legal services or (ii) is established
33 for the purpose of providing civil legal services by an
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1 organized panel of pro bono attorneys.
2 "Eligible client" means an indigent person who has been
3 found eligible for civil legal services by a civil legal
4 services provider.
5 "Indigent person" means a person whose income is 125% or
6 less of the current official federal poverty income
7 guidelines or who is otherwise eligible to receive civil
8 legal services under the Legal Services Corporation Act of
9 1974.
10 (b) When a party is represented in a civil action by a
11 civil legal services provider, all fees and costs relating to
12 filing, appearing, transcripts on appeal, and service of
13 process shall be waived without the necessity of a motion for
14 that purpose, and the case shall be given an index number or
15 other appropriate filing number, provided that (i) a
16 determination has been made by the civil legal services
17 provider that the party is indigent and (ii) an attorney's
18 certification that that determination has been made is filed
19 with the clerk of the court along with the complaint, the
20 appearance, or any other paper that would otherwise require
21 payment of a fee.
22 (Source: P.A. 88-41.)
23 Section 99. Effective date. This Act takes effect upon
24 becoming law.