101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
SB3325

 

Introduced 2/14/2020, by Sen. Michael E. Hastings

 

SYNOPSIS AS INTRODUCED:
 
735 ILCS 5/5-105  from Ch. 110, par. 5-105

    Amends the Code of Civil Procedure. Provides that an indigent person may retain counsel of his or her choosing to represent the indigent person, with leave of the court, and that counsel shall perform his or her duties without fees, charges, or reward.


LRB101 19866 LNS 69386 b

 

 

A BILL FOR

 

SB3325LRB101 19866 LNS 69386 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
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. Waiver of court fees, costs, and charges.
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: fees set
12    forth in Section 27.1b of the Clerks of Courts Act; fees
13    for service of process and other papers served either
14    within or outside this State, including service by
15    publication pursuant to Section 2-206 of this Code and
16    publication of necessary legal notices; motion fees;
17    charges for participation in, or attendance at, any
18    mandatory process or procedure including, but not limited
19    to, conciliation, mediation, arbitration, counseling,
20    evaluation, "Children First", "Focus on Children" or
21    similar programs; fees for supplementary proceedings;
22    charges for translation services; guardian ad litem fees;
23    and all other processes and procedures deemed by the court

 

 

SB3325- 2 -LRB101 19866 LNS 69386 b

1    to be necessary to commence, prosecute, defend, or enforce
2    relief in a civil action.
3        (2) "Indigent person" means any person who meets one or
4    more of the following criteria:
5            (i) He or she is receiving assistance under one or
6        more of the following means-based governmental public
7        benefits programs: Supplemental Security Income (SSI),
8        Aid to the Aged, Blind and Disabled (AABD), Temporary
9        Assistance for Needy Families (TANF), Supplemental
10        Nutrition Assistance Program (SNAP), General
11        Assistance, Transitional Assistance, or State Children
12        and Family Assistance.
13            (ii) His or her available personal income is 125%
14        or less of the current poverty level, unless the
15        applicant's assets that are not exempt under Part 9 or
16        10 of Article XII of this Code are of a nature and
17        value that the court determines that the applicant is
18        able to pay the fees, costs, and charges.
19            (iii) He or she is, in the discretion of the court,
20        unable to proceed in an action without payment of fees,
21        costs, and charges and whose payment of those fees,
22        costs, and charges would result in substantial
23        hardship to the person or his or her family.
24            (iv) He or she is an indigent person pursuant to
25        Section 5-105.5 of this Code.
26        (3) "Poverty level" means the current poverty level as

 

 

SB3325- 3 -LRB101 19866 LNS 69386 b

1    established by the United States Department of Health and
2    Human Services.
3    (b) On the application of any person, before or after the
4commencement of an action:
5        (1) If the court finds that the applicant is an
6    indigent person, the court shall grant the applicant a full
7    fees, costs, and charges waiver entitling him or her to sue
8    or defend the action without payment of any of the fees,
9    costs, and charges.
10        (2) If the court finds that the applicant satisfies any
11    of the criteria contained in items (i), (ii), or (iii) of
12    this subdivision (b)(2), the court shall grant the
13    applicant a partial fees, costs, and charges waiver
14    entitling him or her to sue or defend the action upon
15    payment of the applicable percentage of the assessments,
16    costs, and charges of the action, as follows:
17            (i) the court shall waive 75% of all fees, costs,
18        and charges if the available income of the applicant is
19        greater than 125% but does not exceed 150% of the
20        poverty level, unless the assets of the applicant that
21        are not exempt under Part 9 or 10 of Article XII of
22        this Code are such that the applicant is able, without
23        undue hardship, to pay a greater portion of the fees,
24        costs, and charges;
25            (ii) the court shall waive 50% of all fees, costs,
26        and charges if the available income is greater than

 

 

SB3325- 4 -LRB101 19866 LNS 69386 b

1        150% but does not exceed 175% of the poverty level,
2        unless the assets of the applicant that are not exempt
3        under Part 9 or 10 of Article XII of this Code are such
4        that the applicant is able, without undue hardship, to
5        pay a greater portion of the fees, costs, and charges;
6        and
7            (iii) the court shall waive 25% of all fees, costs,
8        and charges if the available income of the applicant is
9        greater than 175% but does not exceed 200% of the
10        current poverty level, unless the assets of the
11        applicant that are not exempt under Part 9 or 10 of
12        Article XII of this Code are such that the applicant is
13        able, without undue hardship, to pay a greater portion
14        of the fees, costs, and charges.
15    (c) An application for waiver of court fees, costs, and
16charges shall be in writing and signed by the applicant, or, if
17the applicant is a minor or an incompetent adult, by another
18person having knowledge of the facts. The contents of the
19application for waiver of court fees, costs, and charges, and
20the procedure for the decision of the applications, shall be
21established by Supreme Court Rule. Factors to consider in
22evaluating an application shall include:
23        (1) the applicant's receipt of needs based
24    governmental public benefits, including Supplemental
25    Security Income (SSI); Aid to the Aged, Blind and Disabled
26    (AABD ADBD); Temporary Assistance for Needy Families

 

 

SB3325- 5 -LRB101 19866 LNS 69386 b

1    (TANF); Supplemental Nutrition Assistance Program (SNAP or
2    "food stamps"); General Assistance; Transitional
3    Assistance; or State Children and Family Assistance;
4        (2) the employment status of the applicant and amount
5    of monthly income, if any;
6        (3) income received from the applicant's pension,
7    Social Security benefits, unemployment benefits, and other
8    sources;
9        (4) income received by the applicant from other
10    household members;
11        (5) the applicant's monthly expenses, including rent,
12    home mortgage, other mortgage, utilities, food, medical,
13    vehicle, childcare, debts, child support, and other
14    expenses; and
15        (6) financial affidavits or other similar supporting
16    documentation provided by the applicant showing that
17    payment of the imposed fees, costs, and charges would
18    result in substantial hardship to the applicant or the
19    applicant's family.
20    (c-5) The court shall provide, through the office of the
21clerk of the court, the application for waiver of court fees,
22costs, and charges to any person seeking to sue or defend an
23action who indicates an inability to pay the fees, costs, and
24charges of the action. The clerk of the court shall post in a
25conspicuous place in the courthouse a notice no smaller than
268.5 x 11 inches, using no smaller than 30-point typeface

 

 

SB3325- 6 -LRB101 19866 LNS 69386 b

1printed in English and in Spanish, advising the public that
2they may ask the court for permission to sue or defend a civil
3action without payment of fees, costs, and charges. The notice
4shall be substantially as follows:
5        "If you are unable to pay the fees, costs, and charges
6    of an action you may ask the court to allow you to proceed
7    without paying them. Ask the clerk of the court for forms."
8    (d) (Blank).
9    (e) The clerk of the court shall not refuse to accept and
10file any complaint, appearance, or other paper presented by the
11applicant if accompanied by an application for waiver of court
12fees, costs, and charges, and those papers shall be considered
13filed on the date the application is presented. If the
14application is denied or a partial fees, costs, and charges
15waiver is granted, the order shall state a date certain by
16which the necessary fees, costs, and charges must be paid. For
17good cause shown, the court may allow an applicant who receives
18a partial fees, costs, and charges waiver to defer payment of
19fees, costs, and charges, make installment payments, or make
20payment upon reasonable terms and conditions stated in the
21order. The court may dismiss the claims or strike the defenses
22of any party failing to pay the fees, costs, and charges within
23the time and in the manner ordered by the court. A judicial
24ruling on an application for waiver of court assessments does
25not constitute a decision of a substantial issue in the case
26under Section 2-1001 of this Code.

 

 

SB3325- 7 -LRB101 19866 LNS 69386 b

1    (f) The order granting a full or partial fees, costs, and
2charges waiver shall expire after one year. Upon expiration of
3the waiver, or a reasonable period of time before expiration,
4the party whose fees, costs, and charges were waived may file
5another application for waiver and the court shall consider the
6application in accordance with the applicable Supreme Court
7Rule.
8    (f-5) If, before or at the time of final disposition of the
9case, the court obtains information, including information
10from the court file, suggesting that a person whose fees,
11costs, and charges were initially waived was not entitled to a
12full or partial waiver at the time of application, the court
13may require the person to appear at a court hearing by giving
14the applicant no less than 10 days' written notice of the
15hearing and the specific reasons why the initial waiver might
16be reconsidered. The court may require the applicant to provide
17reasonably available evidence, including financial
18information, to support his or her eligibility for the waiver,
19but the court shall not require submission of information that
20is unrelated to the criteria for eligibility and application
21requirements set forth in subdivision (b)(1) or (b)(2) of this
22Section. If the court finds that the person was not initially
23entitled to any waiver, the person shall pay all fees, costs,
24and charges relating to the civil action, including any
25previously waived fees, costs, and charges. The order may state
26terms of payment in accordance with subsection (e). The court

 

 

SB3325- 8 -LRB101 19866 LNS 69386 b

1shall not conduct a hearing under this subsection more often
2than once every 6 months.
3    (f-10) If, before or at the time of final disposition of
4the case, the court obtains information, including information
5from the court file, suggesting that a person who received a
6full or partial waiver has experienced a change in financial
7condition so that he or she is no longer eligible for that
8waiver, the court may require the person to appear at a court
9hearing by giving the applicant no less than 10 days' written
10notice of the hearing and the specific reasons why the waiver
11might be reconsidered. The court may require the person to
12provide reasonably available evidence, including financial
13information, to support his or her continued eligibility for
14the waiver, but shall not require submission of information
15that is unrelated to the criteria for eligibility and
16application requirements set forth in subdivisions (b)(1) and
17(b)(2) of this Section. If the court enters an order finding
18that the person is no longer entitled to a waiver, or is
19entitled to a partial waiver different than that which the
20person had previously received, the person shall pay the
21requisite fees, costs, and charges from the date of the order
22going forward. The order may state terms of payment in
23accordance with subsection (e) of this Section. The court shall
24not conduct a hearing under this subsection more often than
25once every 6 months.
26    (g) A court, in its discretion, may appoint counsel to

 

 

SB3325- 9 -LRB101 19866 LNS 69386 b

1represent an indigent person, and that counsel shall perform
2his or her duties without fees, charges, or reward. An indigent
3person may retain counsel of his or her choosing to represent
4the indigent person, with leave of the court, and that counsel
5shall perform his or her duties without fees, charges, or
6reward.
7    (h) Nothing in this Section shall be construed to affect
8the right of a party to sue or defend an action in forma
9pauperis without the payment of fees, costs, charges, or the
10right of a party to court-appointed counsel, as authorized by
11any other provision of law or by the rules of the Illinois
12Supreme Court. Nothing in this Section shall be construed to
13limit the authority of a court to order another party to the
14action to pay the fees, costs, and charges of the action.
15    (h-5) If a party is represented by a civil legal services
16provider or an attorney in a court-sponsored pro bono program
17as defined in Section 5-105.5 of this Code, the attorney
18representing that party shall file a certification with the
19court in accordance with Supreme Court Rule 298 and that party
20shall be allowed to sue or defend without payment of fees,
21costs, and charges without filing an application under this
22Section.
23    (h-10) (Blank).
24    (i) The provisions of this Section are severable under
25Section 1.31 of the Statute on Statutes.
26(Source: P.A. 100-987, eff. 7-1-19; 100-1161, eff. 7-1-19;

 

 

SB3325- 10 -LRB101 19866 LNS 69386 b

1101-36, eff. 6-28-19; revised 8-6-19.)