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
3everything after the enacting clause with the following:
 
4    "Section 5. The Code of Civil Procedure is amended by
5changing 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
10commencement of an action and on a yearly basis within the same
11action thereafter when the petition is granted, a court, on
12finding that the applicant is an indigent person and that no
13other person beneficially interested in the recovery sought is
14able to pay the fees, costs, and charges of the action, shall
15grant the applicant leave to sue or defend the action without
16payment of the fees, costs, and charges of the action.
17    (c) An application for leave to sue or defend an action as
18an indigent person shall be in writing and supported by the
19affidavit of the applicant or, if the applicant is a minor or
20an incompetent adult, by the affidavit of another person having
21knowledge of the facts. The affidavit shall state that it is
22sworn under penalty of perjury and shall be sworn before a
23notary public or other officer authorized to administer oaths.
24The contents of the affidavit shall be established by Supreme
25Court Rule. The court may require the moving party to file with
26the affidavit a copy of the applicant's most recent State and

 

 

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1federal income tax returns and a certificate of an attorney
2stating that the attorney has examined the action and believes
3there is merit to the moving party's contentions. An applicant
4may not pay a fee for preparation of an indigent application
5unless the preparation of the application is part of a
6contingency fee agreement described in subsection (g). Any
7other party in interest may contest the truth of an affidavit
8of indigency by verifying affirmatively under oath that the
9same is untrue. The issue that arises from the affidavits shall
10be heard and determined by the court. The court shall provide,
11through the office of the clerk of the court, simplified forms
12consistent with the requirements of this Section and applicable
13Supreme Court Rules to any person seeking to sue or defend an
14action who indicates an inability to pay the fees, costs, and
15charges of the action. The application and supporting affidavit
16may be incorporated into one simplified form. The clerk of the
17court shall post in a conspicuous place in the courthouse a
18notice no smaller than 8.5 x 11 inches, using no smaller than
1930-point typeface printed in English and in Spanish, advising
20the public that they may ask the court for permission to sue or
21defend a civil action without payment of fees, costs, and
22charges. 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
4subsection (c), if the applicant in a civil action is a
5prisoner, the applicant shall be required to pay the full
6amount of any filing fees. At the time the application and
7affidavit are filed, the applicant prisoner shall submit a
8certified copy of the trust fund account statement (or
9institutional equivalent) for the prisoner for the 6-month
10period immediately preceding the filing of the complaint or
11appearance, obtained from the appropriate official of each
12prison at which the prisoner is or was confined. The court
13shall assess and, when funds exist, collect, as partial payment
14of any court fees required by law, an initial filing fee of 20%
15of the greater of (1) the average monthly deposits to the
16prisoner's account, or (2) the average monthly balance in the
17prisoner's account for the 6-month period immediately
18preceding the filing of the complaint or notice of appeal.
19After payment of the initial filing fee, the prisoner shall be
20required to make monthly payments of 20% of the preceding
21month's income credited to the prisoner's account until the
22court fees are paid. The agency having custody of the prisoner
23shall forward payments from the prisoner's account to the clerk
24of court each time the amount in the account exceeds $10 until
25the court fees are paid. In no event shall the court fees
26collected exceed the amount of fees permitted by statute, and

 

 

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1in no event shall a prisoner be prohibited from bringing a
2civil action or appealing a civil judgment for the reason that
3the prisoner has no assets and no means by which to pay the
4court fees.
5    (c-2) In an action for dissolution of marriage or spousal
6maintenance, if the applicant is determined by the court to be
7an indigent person, the court shall require the payment of the
8applicant's fees and costs to be paid by the spouse. If the
9spouse is determined to be an indigent person, the applicant
10and spouse may proceed without payment of the fees, costs, and
11charges of the action.
12    (d) The court shall rule on applications under this Section
13in a timely manner based on information contained in the
14application and tax returns unless the court, in its
15discretion, requires the applicant to personally appear to
16explain or clarify information contained in the application. If
17the court finds that the applicant is an indigent person, the
18court shall enter an order permitting the applicant to sue or
19defend without payment of fees, costs, or charges. If the
20application is denied, the court shall enter an order to that
21effect stating the specific reasons for the denial. If the
22court denies the application, the court will give notice to the
23applicant by written order that the case will be dismissed if
24the fee is not paid within 90 days after the date of the order,
25unless otherwise ordered by the court. The clerk of the court
26shall promptly mail or deliver a copy of the order to the

 

 

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1applicant.
2    (e) The clerk of the court shall not refuse to accept and
3file any complaint, appearance, or other paper presented by the
4applicant if accompanied by an application to sue or defend in
5forma pauperis, and those papers shall be considered filed on
6the date the application is presented. If the application is
7denied, the order shall state a date certain by which the
8necessary fees, costs, and charges must be paid. Unless
9otherwise ordered by the court, if the necessary fees, costs,
10and charges are not paid within 90 days after the denial, the
11case shall be dismissed. The court, for good cause shown, may
12allow an applicant whose application is denied to defer payment
13of fees, costs, and charges, make installment payments, or make
14payment upon reasonable terms and conditions stated in the
15order. The court's order shall contain the payment due date and
16payment amount. The court shall may dismiss the claims or
17defenses of any party failing to pay the fees, costs, or
18charges within 90 days after the time and in the manner ordered
19by the court. A determination concerning an application to sue
20or defend in forma pauperis shall not be construed as a ruling
21on the merits.
22    (f) The court shall may order the non-prevailing party, who
23is paying the judgment or settlement, an indigent person to
24first pay to the clerk of the circuit court and to the sheriff
25for service of process, if any, all or a portion of the fees,
26costs, or charges waived pursuant to this Section out of moneys

 

 

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1recovered by the indigent person pursuant to a judgment or
2settlement resulting from the civil action, in an amount not to
3exceed the amount of the settlement or judgment. If the court
4has paid on behalf of the prevailing party the cost of
5stenographic transcript, printed record, postage, service by
6publication, notice by publication, translation services, or
7any other fee, cost, or charge, the same shall be taxed in
8favor of the court and paid by the non-prevailing party from
9the judgment or settlement. However, nothing is this Section
10shall be construed to limit the authority of a court to order
11another party to the action to pay the fees, costs, or charges
12of the action. If a judgment against a prisoner includes the
13payment of costs under this subsection, the prisoner shall be
14required to pay the full amount of the costs ordered. The
15prisoner shall be required to make payments for costs under
16this subsection in the same manner as provided for filing fees
17under subsection (c-1). In no event shall the costs collected
18exceed the amount of the costs ordered by the court.
19    (g) A court, in its discretion, may appoint counsel to
20represent an indigent person, and that counsel shall perform
21his or her duties without fees, charges, or reward. An
22applicant under this Section may proceed pro se, or may be
23represented by court-appointed counsel pursuant to this
24subsection, a civil legal services provider pursuant to
25subsection (a)(2)(iv), or another attorney representing the
26person on a contingent fee basis or without fees, charges, or

 

 

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1reward. Any applicant represented by an attorney shall be
2represented without fees, charges, or reward or on a contingent
3fee basis, or shall immediately file a motion with the court to
4have the indigent status invalidated with all fees, costs, and
5charges in the case immediately due. If the attorney enters
6into a contingency fee agreement with the applicant, the amount
7of the court fees, costs, and charges to be paid from the
8judgment or settlement pursuant to subsection (e) shall not be
9considered as part of the judgment or settlement amount for
10purposes of the contingency fee agreement. If the applicant
11fails to file a motion to invalidate the indigent status within
1210 days after the filing of the appearance in the case, the
13clerk of the circuit court shall send a notice to the applicant
14and the applicant's attorney notifying them that the case will
15be dismissed within 30 days unless all fees, costs, and charges
16in the case are immediately paid. If all fees, costs, and
17charges in the case are not paid within 30 days, the case shall
18be dismissed.
19    (g-1) Notwithstanding any filing fee, or any portion
20thereof, that may have been paid, the court shall revoke the
21provision of any relief under this Section and dismiss the case
22at any time, on its own initiative or upon motion, if the court
23determines that (1) the allegation of poverty is untrue, or (2)
24the action or appeal (i) is frivolous, malicious, has no
25arguable basis in law or fact, or reasonably appears to be
26intended to harass one or more named defendants, (ii) fails to

 

 

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1state a claim on which relief may be granted, (iii) seeks
2monetary relief against a defendant who is immune from such
3relief, (iv) seeks relief for mental or emotional injury where
4there has been no related allegation of a physical injury, or
5(v) is substantially similar to a previous claim filed by the
6applicant in that it involves the same parties or arises from
7the same operative facts as a previous claim. This Section
8shall be construed liberally in favor of the applicant.
9    (g-2) A person who knowingly provides false information to
10the court in seeking a determination of indigent status under
11this Section commits a Class C misdemeanor. If the court has
12reason to believe that any applicant, through fraud or
13misrepresentation, was improperly determined to be indigent,
14the matter shall be referred by the court to the State's
15Attorney.
16    (h) Nothing in this Section shall be construed to affect
17the right of a party to sue or defend an action in forma
18pauperis without the payment of fees, costs, or charges, or the
19right of a party to court-appointed counsel, as authorized by
20any other provision of law or by the rules of the Illinois
21Supreme Court.
22    (i) The provisions of this Section are severable under
23Section 1.31 of the Statute on Statutes.
24(Source: P.A. 91-621, eff. 8-19-99.)".