HB0943ham001 97TH GENERAL ASSEMBLY

Rep. Karen A. Yarbrough

Filed: 3/31/2011

09700HB0943ham001 LRB097 03763 AJO 53340 a

AMENDMENT TO HOUSE BILL 943

AMENDMENT NO. ______. Amend House Bill 943 by replacing everything after the enacting clause with the following:

"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)

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 natural 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, State 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 who is unable to give security therefor, and whose payment of those fees, costs, and charges, or security therefor, 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 and on a yearly basis within the same action thereafter, a court, on finding that the applicant is an indigent person and that no other person beneficially interested in the recovery sought is able to pay the fees, costs, and charges of the action, 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 affidavit shall state that it is sworn under penalty of perjury and shall be sworn before a notary public or other officer authorized to administer oaths. The contents of the affidavit shall be established by Supreme Court Rule. At the time of the filing of the affidavit, the applicant shall file under seal a copy of the applicant's most recent State and federal income tax returns. The court may require the moving party to file with the affidavit a certificate of an attorney stating that the attorney has examined the action and believes there is merit to the moving party's contentions. An attorney may not charge an applicant a fee for preparation of an indigent application unless the preparation of the application is part of a contingency fee agreement described in subsection (g). Any other party in interest may contest the truth of an affidavit of indigency by verifying affirmatively under oath that the same is untrue. The issue that arises from the affidavits shall be heard and determined by the court. 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. However, you will be required to reimburse these court fees, costs, and charges at the end of the case if you receive a monetary judgment or settlement. Ask the clerk of the court for forms."

(c-1) In addition to filing the affidavit required by subsection (c), if the applicant in a civil action is a prisoner, the applicant shall be required to pay the full amount of any filing fees. At the time the application and affidavit are filed, the applicant prisoner shall submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint or appearance, obtained from the appropriate official of each prison at which the prisoner is or was confined. The court shall assess and, when funds exist, collect, as partial payment of any court fees required by law, an initial filing fee of 20% of the greater of (1) the average monthly deposits to the prisoner's account, or (2) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint or notice of appeal. After payment of the initial filing fee, the prisoner shall be required to make monthly payments of 20% of the preceding month's income credited to the prisoner's account. The agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of court each time the amount in the account exceeds $10 until the court fees are paid. In no event shall the court fees collected exceed the amount of fees permitted by statute, and in no event shall a prisoner be prohibited from bringing a civil action or appealing a civil judgment for the reason that the prisoner has no assets and no means by which to pay the court fees.

(c-2) In an action for dissolution of marriage or spousal maintenance, if the applicant is determined by the court to be an indigent person, the court shall require the payment of the applicant's fees and costs to be paid by the spouse. If the spouse is determined to be an indigent person, the applicant and spouse may proceed without payment of the fees, costs, and charges of the action.

(d) The court shall rule on applications under this Section in a timely manner based on information contained in the application and tax returns 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. If the court denies the application, the court will give notice to the applicant by written order that the case will be dismissed if the fee is not paid within 90 days after the date of the order, unless otherwise ordered by the court. 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. Unless otherwise ordered by the court, if the necessary fees, costs, and charges are not paid within 90 days after the denial, the case shall be dismissed. 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's order shall contain the payment due date and payment amount. The court shall may dismiss the claims or defenses of any party failing to pay the fees, costs, or charges within 90 days after 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 shall may order the non-prevailing party, who is paying the judgment or settlement, an indigent person to first pay to the clerk of the circuit court and to the sheriff for service of process, if any, 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, in an amount not to exceed the amount of the settlement or judgment. If the court has paid on behalf of the prevailing party the cost of stenographic transcript, printed record, postage, service by publication, notice by publication, translation services, or any other fee, cost, or charge, the same shall be taxed in favor of the court and paid by the non-prevailing party from the judgment or settlement. However, nothing is 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. If a judgment against a prisoner includes the payment of costs under this subsection, the prisoner shall be required to pay the full amount of the costs ordered. The prisoner shall be required to make payments for costs under this subsection in the same manner as provided for filing fees under subsection (c-1). In no event shall the costs collected exceed the amount of the costs ordered by the court.

(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. An applicant under this Section may proceed pro se, or may be represented by court-appointed counsel pursuant to this subsection, a civil legal services provider pursuant to subsection (a)(2)(iv), or another attorney representing the person on a contingent fee basis or without fees, charges, or reward. Any attorney who represents a person in an action in which that person has been determined to be indigent by the court shall represent the person without fees, charges, or reward or on a contingent fee basis, or shall immediately file a motion with the court to have the indigent status invalidated with all fees, costs, and charges in the case immediately due. If the attorney enters into a contingency fee agreement with the applicant, the amount of the court fees, costs, and charges to be paid from the judgment or settlement pursuant to subsection (e) shall not be considered as part of the judgment or settlement amount for purposes of the contingency fee agreement. If an attorney who is not court-appointed and is not a civil legal services provider represents the applicant in the case, that attorney must file a statement with the court that he or she is representing the applicant on a contingent fee basis or without receiving any fees, charges, or reward from the applicant. If the attorney fails to file such a statement or a motion to invalidate the indigent status within 10 days after the filing of his or her appearance in the case, the clerk of the circuit court shall send a notice to the applicant and the applicant's attorney notifying them that the case will be dismissed within 30 days unless all fees, costs, and charges in the case are immediately paid. If all fees, costs, and charges in the case are not paid within 30 days, the case shall be dismissed.

(g-1) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall revoke the provision of any relief under this Section and dismiss the case at any time, on its own initiative or upon motion, if the court determines that (1) the allegation of poverty is untrue, or (2) the action or appeal (i) is frivolous, malicious, has no arguable basis in law or fact, or reasonably appears to be intended to harass one or more named defendants, (ii) fails to state a claim on which relief may be granted, (iii) seeks monetary relief against a defendant who is immune from such relief, (iv) seeks relief for mental or emotional injury where there has been no related allegation of a physical injury, or (v) is substantially similar to a previous claim filed by the applicant in that it involves the same parties or arises from the same operative facts as a previous claim.

(g-2) A person who knowingly provides false information to the court in seeking a determination of indigent status under this Section commits a Class C misdemeanor. If the court has reason to believe that any applicant, through fraud or misrepresentation, was improperly determined to be indigent, the matter shall be referred by the court to the State's Attorney.

(g-3) In no event shall an applicant under this Section bring a civil action or appeal a judgment in a civil action or proceeding under this Section if the applicant has, on 3 or more occasions, brought an action or appeal in a court of this State that was dismissed on one or more of the grounds listed in subsection (g-1), unless the applicant is in imminent danger of serious physical injury.

(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. 91-621, eff. 8-19-99.)".