State of Illinois
91st General Assembly
Legislation

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91_SB0460enr

 
SB460 Enrolled                                 LRB9103112WHdv

 1        AN ACT to amend the Code of Civil Procedure  by  changing
 2    Section 5-105.

 3        Be  it  enacted  by  the People of the State of Illinois,
 4    represented in the General Assembly:

 5        Section 5.  The Code of Civil  Procedure  is  amended  by
 6    changing Section 5-105 as follows:

 7        (735 ILCS 5/5-105) (from Ch. 110, par. 5-105)
 8        Sec.  5-105.  Leave  to  sue  or  defend  as  an indigent
 9    person.
10        (a)  As used in this Section:
11             (1)  "Fees,  costs,  and  charges"  means   payments
12        imposed  on a party in connection with the prosecution or
13        defense of a civil action, including, but not limited to:
14        filing fees; appearance fees; fees for service of process
15        and other papers served either  within  or  outside  this
16        State,  including  service  by  publication  pursuant  to
17        Section  2-206  of this Code and publication of necessary
18        legal notices; motion fees; jury demand fees; charges for
19        participation in, or attendance at, any mandatory process
20        or procedure including, but not limited to, conciliation,
21        mediation, arbitration, counseling, evaluation, "Children
22        First", "Focus on Children" or similar programs; fees for
23        supplementary  proceedings;   charges   for   translation
24        services;  guardian  ad litem fees; charges for certified
25        copies of court documents; and all  other  processes  and
26        procedures  deemed  by  the  court  to  be  necessary  to
27        commence, prosecute, defend, or enforce relief in a civil
28        action.
29             (2)  "Indigent  person"  means  any person who meets
30        one or more of the following criteria:
31                  (i)  He or she is  receiving  assistance  under
 
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 1             one   or  more  of  the  following  public  benefits
 2             programs:  Supplemental Security Income  (SSI),  Aid
 3             to  the  Aged,  Blind and Disabled (AABD), Temporary
 4             Assistance for Needy Families (TANF),  Food  Stamps,
 5             General  Assistance,  State Transitional Assistance,
 6             or State Children and Family Assistance.
 7                  (ii)  His or her available income  is  125%  or
 8             less  of the current poverty level as established by
 9             the United States Department  of  Health  and  Human
10             Services, unless the applicant's assets that are not
11             exempt  under  Part  9  or 10 of Article XII of this
12             Code are of  a  nature  and  value  that  the  court
13             determines  that  the  applicant  is able to pay the
14             fees, costs, and charges.
15                  (iii)  He or she is, in the discretion  of  the
16             court,  unable  to  proceed  in  an  action  without
17             payment  of  fees,  costs,  and  charges  and  whose
18             payment  of  those  fees,  costs,  and charges would
19             result in substantial hardship to the person or  his
20             or her family.
21                  (iv)  He  or she is an indigent person pursuant
22             to Section 5-105.5 of this Code.
23        (b)  On the application of any person, before,  or  after
24    the  commencement  of an action, a court, on finding that the
25    applicant is an indigent person, shall  grant  the  applicant
26    leave  to  sue  or  defend  the action without payment of the
27    fees, costs, and charges of the action.
28        (c)  An application for leave to sue or defend an  action
29    as  an  indigent  person shall be in writing and supported by
30    the affidavit of the applicant or,  if  the  applicant  is  a
31    minor  or  an  incompetent adult, by the affidavit of another
32    person having knowledge of the facts.  The  contents  of  the
33    affidavit  shall  be  established by Supreme Court Rule.  The
34    court shall provide, through the office of the clerk  of  the
 
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 1    court,  simplified  forms consistent with the requirements of
 2    this Section and applicable Supreme Court Rules to any person
 3    seeking to sue or defend an action who indicates an inability
 4    to pay the fees, costs,  and  charges  of  the  action.   The
 5    application and supporting affidavit may be incorporated into
 6    one  simplified form.  The clerk of the court shall post in a
 7    conspicuous place in the courthouse a notice no smaller  than
 8    8.5  x  11  inches,  using  no smaller than 30-point typeface
 9    printed in English and in Spanish, advising the  public  that
10    they  may  ask  the  court  for permission to sue or defend a
11    civil action without payment of  fees,  costs,  and  charges.
12    The notice shall be substantially as follows:
13             "If  you  are  unable  to  pay  the fees, costs, and
14        charges of an action you may ask the court to  allow  you
15        to  proceed  without  paying  them.  Ask the clerk of the
16        court for forms."
17        (d)  The court shall  rule  on  applications  under  this
18    Section  in a timely manner based on information contained in
19    the application unless the court, in its discretion, requires
20    the applicant to personally  appear  to  explain  or  clarify
21    information  contained in the application. If the court finds
22    that the applicant is an indigent  person,  the  court  shall
23    enter  an  order  permitting  the  applicant to sue or defend
24    without  payment  of  fees,  costs,  or   charges.   If   the
25    application is denied, the court shall enter an order to that
26    effect stating the specific reasons for the denial. The clerk
27    of  the  court  shall  promptly mail or deliver a copy of the
28    order to the applicant.
29        (e)  The clerk of the court shall not  refuse  to  accept
30    and  file any complaint, appearance, or other paper presented
31    by the applicant if accompanied by an application to  sue  or
32    defend   in   forma  pauperis,  and  those  papers  shall  be
33    considered filed on the date the application is presented. If
34    the application is denied,  the  order  shall  state  a  date
 
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 1    certain  by which the necessary fees, costs, and charges must
 2    be paid. The court,  for  good  cause  shown,  may  allow  an
 3    applicant  whose  application  is  denied to defer payment of
 4    fees, costs, and charges, make installment payments, or  make
 5    payment  upon  reasonable  terms and conditions stated in the
 6    order. The court may dismiss the claims or  defenses  of  any
 7    party  failing  to pay the fees, costs, or charges within the
 8    time and in the manner ordered by the court. A  determination
 9    concerning  an application to sue or defend in forma pauperis
10    shall not be construed as a ruling on the merits.
11        (f)  The court may order an indigent person to pay all or
12    a portion of the fees, costs, or charges waived  pursuant  to
13    this  Section  out of moneys recovered by the indigent person
14    pursuant to a judgment or settlement resulting from the civil
15    action. However, nothing is this Section shall  be  construed
16    to  limit  the authority of a court to order another party to
17    the action to pay the fees, costs, or charges of the action.
18        (g)  A court, in its discretion, may appoint  counsel  to
19    represent  an indigent person, and that counsel shall perform
20    his or her duties without fees, charges, or reward.
21        (h)  Nothing in this Section shall be construed to affect
22    the right of a party to sue or  defend  an  action  in  forma
23    pauperis  without  the payment of fees, costs, or charges, or
24    the  right  of  a  party  to  court-appointed   counsel,   as
25    authorized  by  any other provision of law or by the rules of
26    the Illinois Supreme Court.
27        (i)  The provisions of this Section are  severable  under
28    Section  1.31  of  the Statute on Statutes.  Poor person.  If
29    any court shall, before  or  after  the  commencement  of  an
30    action,  be  satisfied  that  the plaintiff or defendant is a
31    poor person, and unable to prosecute or defend the action and
32    pay the costs and expenses thereof, the  court  may,  in  its
33    discretion,  permit  him or her to commence and prosecute the
34    action, or defend the action, as a poor person, and thereupon
 
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 1    such  person  shall  have  all   the   necessary   processes,
 2    appearances and proceedings, as in other civil cases, without
 3    fees or charges. The court may assign to such person counsel,
 4    who,  as  well  as  all  other  officers  of the court, shall
 5    perform their duties in such action without any fees,  charge
 6    or  reward.  If judgment is entered in favor of the plaintiff
 7    or defendant judgment shall be entered for costs in favor  of
 8    the  successful party; which costs shall be collected for the
 9    use of the officers. If the action  is  settled  without  the
10    entry  of  judgment, the party who has thus been permitted to
11    sue or defend as a poor person shall  nevertheless  be  under
12    the  duty  of  paying forthwith to the clerk of the court and
13    the sheriff respectively,  out  of  any  moneys  or  property
14    received  by  him  or  her  or  on  his or her account as the
15    proceeds of any such settlement, the amount of all  fees  and
16    charges  which  but for the leave given to sue or defend as a
17    poor person, such party would have been required  to  advance
18    to such officers respectively.
19    (Source: P.A. 83-707.)

20        Section  99.  Effective date.  This Act takes effect upon
21    becoming law.

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