September 23, 2019
Dear Justice Corner,
I understand that the statute regarding civil fee waivers has recently changed. How does this change impact the civil fee waiver application process, and what new provisions have been added?
Dear Judge Whattowaive,
As of July 1, 2019, the statute regarding waivers of court fees, costs, and charges has been updated (see 735 ILCS 5/5-105). There were four major changes that are outlined below.
The first change was the definition "fees, charges, and costs" by adding "fees set forth in section 27.1b of the Clerks of Court Act" which is vast (Filing fees, appearance fees, counterclaim or third party complaint fees, alias summons, jury demands, change of venue fees, petitions to vacate or modify, appeals preparation, etc). The statute continues to list other fees like service of process, attendance at mandatory processes like mediation, and guardian ad litem fees while ending with the catchall of fees for procedures to start, defend, or enforce a civil action.
Another change is that orders granting civil waivers now expire after one year, but the party may file another application (see section (f)). Additionally, the statute was amended to give the court discretion to order someone to pay back waived fees and pay fees going forward if you find they were not entitled to a waiver in the first place (f-5) or to pay fees going forward if you find their financial circumstances have changed (f-10).
The last and most notable change is the creation of partial waivers based on income level. Although the process to apply for a civil fee waiver has not been changed, there are updated statewide standardized application and order forms that must be used. The updated orders continue to allow the court to grant full civil fee waivers. However, they now also reflect the addition of partial fee waivers, based on the applicant’s available income compared to the current federal poverty level.
The court must continue to waive 100% of court fees for applicants who you find indigent under sections (a)(2)(i-iii):
- The applicant receives one or more of the following means-based public assistance programs: Supplemental Security Income (SSI), Aid to the Aged, Blind and Disabled (AABD), Temporary Assistance for Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), General Assistance, Transitional Assistance, or State Children and Family Assistance
- The applicant’s available personal income is 125% or less of the current federal poverty level
- If payment of court fees would result in a substantial hardship to the applicant or the applicant’s family (a)(2)(iii).
There is a new provision that obligates the court to grant partial fee waivers to patrons whose available income qualifies, based on the current federal poverty level (b)(2). The statute now mandates a waiver, as outlined in the tables below:
Civil Fee Waiver 735 ILCS 5/5-105
||Receives a means-based public benefit (regardless of income)
Payment would result in substantial hardship (regardless of income)
Available income up to 125% FPL
Available income between 125%-150% FPL
||Available income between 150%-175% FPL
||Available income between 175%-200% FPL
2019 Federal Poverty Level Annual Income
If none of the above conditions apply, the court may deny the application for fee waiver. However, if doing so, you must state a reason for the denial on the statewide standardized order form (section (e) and SCR 298(b).
For more information about civil fee waivers, please review 735 ILCS 5/5-105 and Illinois Supreme Court Rule 298. The Access to Justice Commission created a bench card about waivers as well as made charts for easy reference. If you would like any of those materials or have questions, comments, concerns, suggestions, or stories about self-represented litigants, please email firstname.lastname@example.org.
-Justice Corner, Illinois Supreme Court Commission on Access to Justice's Court Guidance and Training Committee
- Chair, Judge Jo Beth Weber, Jefferson County
- Presiding Judge Clarence M. Darrow, Rock Island County
- Presiding Judge Sharon M. Sullivan, Cook County
- Associate Judge Elizabeth M. Rochford, Lake County
- Chief Judge Michael Kramer, Kankakee County
- Justice Michael Hyman, 1st Appellate District
- David Holtermann, Lawyers' Trust Fund, Chicago
- Wendy Vaughn, Clinical Professor NIU, Member of Access to Justice Commission