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Public Act 101-0036


 

Public Act 0036 101ST GENERAL ASSEMBLY

  
  
  

 


 
Public Act 101-0036
 
SB1504 EnrolledLRB101 07381 LNS 52421 b

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

Effective Date: 6/28/2019