HB2995 98TH GENERAL ASSEMBLY

LRB098 09260 HEP 39399 b

98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB2995

Introduced , by Rep. Michael J. Zalewski

SYNOPSIS AS INTRODUCED:

735 ILCS 5/5-105

from Ch. 110, par. 5-105

Amends the Code of Civil Procedure. Provides that the court may require that evidence of income accompany the application for leave to sue or defend as an indigent person, and that the affidavit submitted in support of the application shall state that it is made under penalty of perjury. Provides that any other party or his or her agent or attorney may contest the truth of an affidavit of indigency by verifying affirmatively under oath that the affidavit is untrue, and that the issue shall be heard and determined by the court, under the rules of the court. Provides that an attorney may not charge a fee to an applicant for preparation of an application for leave to sue or defend as an indigent person. Provides that the notice apprising litigants of their right to ask for leave to sue without payment of fees must contain language informing the applicant that he or she will be required to reimburse court fees, costs, and charges at the end of the case if he or she receives a monetary judgment or settlement.

A BILL FOR

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)

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 court may require that evidence of income accompany the application. The affidavit shall state that it is made under penalty of perjury. Any other party or his or her agent or attorney may contest the truth of an affidavit of indigency by verifying affirmatively under oath that the affidavit is untrue. The issue shall be heard and determined by the court, under the rules of the court. The contents of the affidavit shall be established by Supreme Court Rule. An attorney may not charge a fee to an applicant for preparation of an application for leave to sue or defend as an indigent person. 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."

(d) The court shall rule on applications under this Section in a timely manner based on information contained in the application and evidence of current income, if any, 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.)