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91_HB0852eng HB0852 Engrossed LRB9103111WHtm 1 AN ACT to amend the Code of Civil Procedure by changing 2 Sections 5-105 and 5-105.5. 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 Sections 5-105 and 5-105.5 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 HB0852 Engrossed -2- LRB9103111WHtm 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 HB0852 Engrossed -3- LRB9103111WHtm 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 HB0852 Engrossed -4- LRB9103111WHtm 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 in 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. If29any court shall, before or after the commencement of an30action, be satisfied that the plaintiff or defendant is a31poor person, and unable to prosecute or defend the action and32pay the costs and expenses thereof, the court may, in its33discretion, permit him or her to commence and prosecute the34action, or defend the action, as a poor person, and thereuponHB0852 Engrossed -5- LRB9103111WHtm 1such person shall have all the necessary processes,2appearances and proceedings, as in other civil cases, without3fees or charges. The court may assign to such person counsel,4who, as well as all other officers of the court, shall5perform their duties in such action without any fees, charge6or reward. If judgment is entered in favor of the plaintiff7or defendant judgment shall be entered for costs in favor of8the successful party; which costs shall be collected for the9use of the officers. If the action is settled without the10entry of judgment, the party who has thus been permitted to11sue or defend as a poor person shall nevertheless be under12the duty of paying forthwith to the clerk of the court and13the sheriff respectively, out of any moneys or property14received by him or her or on his or her account as the15proceeds of any such settlement, the amount of all fees and16charges which but for the leave given to sue or defend as a17poor person, such party would have been required to advance18to such officers respectively.19 (Source: P.A. 83-707.) 20 (735 ILCS 5/5-105.5) 21 Sec. 5-105.5. Representation by civil legal services 22 provider. 23 (a) As used in this Section: 24 "Civil legal services" means legal services in 25 noncriminal matters provided without charge to indigent 26 persons who have been found eligible under financial 27 eligibility guidelines established by the civil legal 28 services provider. 29 "Civil legal services provider" means a not-for-profit 30 corporation that (i) employs one or more attorneys who are 31 licensed to practice law in the State of Illinois and who 32 directly provide civil legal services or (ii) is established 33 for the purpose of providing civil legal services by an HB0852 Engrossed -6- LRB9103111WHtm 1 organized panel of pro bono attorneys. 2 "Eligible client" means an indigent person who has been 3 found eligible for civil legal services by a civil legal 4 services provider. 5 "Indigent person" means a person whose income is 125% or 6 less of the current official federal poverty income 7 guidelines or who is otherwise eligible to receive civil 8 legal services under the Legal Services Corporation Act of 9 1974. 10 (b) When a party is represented in a civil action by a 11 civil legal services provider, all fees and costs relating to 12 filing, appearing,transcripts on appeal,and service of 13 process shall be waived without the necessity of a motion for 14 that purpose, and the case shall be given an index number or 15 other appropriate filing number, provided that (i) a 16 determination has been made by the civil legal services 17 provider that the party is indigent and (ii) an attorney's 18 certification that that determination has been made is filed 19 with the clerk of the court along with the complaint, the 20 appearance, or any other paper that would otherwise require 21 payment of a fee. 22 (Source: P.A. 88-41.) 23 Section 99. Effective date. This Act takes effect upon 24 becoming law.