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Public Act 91-0621
SB460 Enrolled LRB9103112WHdv
AN ACT to amend the Code of Civil Procedure by changing
Section 5-105.
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)
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, 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 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 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.
(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. Poor person. If
any court shall, before or after the commencement of an
action, be satisfied that the plaintiff or defendant is a
poor person, and unable to prosecute or defend the action and
pay the costs and expenses thereof, the court may, in its
discretion, permit him or her to commence and prosecute the
action, or defend the action, as a poor person, and thereupon
such person shall have all the necessary processes,
appearances and proceedings, as in other civil cases, without
fees or charges. The court may assign to such person counsel,
who, as well as all other officers of the court, shall
perform their duties in such action without any fees, charge
or reward. If judgment is entered in favor of the plaintiff
or defendant judgment shall be entered for costs in favor of
the successful party; which costs shall be collected for the
use of the officers. If the action is settled without the
entry of judgment, the party who has thus been permitted to
sue or defend as a poor person shall nevertheless be under
the duty of paying forthwith to the clerk of the court and
the sheriff respectively, out of any moneys or property
received by him or her or on his or her account as the
proceeds of any such settlement, the amount of all fees and
charges which but for the leave given to sue or defend as a
poor person, such party would have been required to advance
to such officers respectively.
(Source: P.A. 83-707.)
Section 99. Effective date. This Act takes effect upon
becoming law.
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