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Reducing Fees – Improving Access

5/25/2017

May 25 , 2017

Last month in this column I added my voice to the urgent call by law firms, in-house counsel, bar associations, and court officials from throughout the United States to protect Legal Services Corporation (LSC) against the threatened elimination of its federal funding. I am pleased to report that the immediate crisis has been averted. In a deal reached by Congress to keep the federal government funded through September, appropriations for LSC have been preserved at current levels, keeping in place a critical resource for helping America deliver on its pledge of equal justice under the law.

Today, I would like to address another issue related to access to justice: court fees, fines and costs. Article I, section 12 of the Illinois Constitution provides that “[e]very person … shall obtain justice by law, freely, completely, and promptly.” Ill. Const. 1970, art. I, §12. Unfortunately, over time, this promise has been eroded by increasingly burdensome court filing fees, costs and fines. Skyrocketing charges are adversely affecting all court users. For our most vulnerable citizens, those charges can be an insurmountable barrier to full participation in our system of justice. Statutory Court Fee Task Force, Illinois Court Assessments: Findings and Recommendations at 7 (2016).

Mindful of these concerns, the General Assembly established a Statutory Court Fee Task Force as part of the Access to Justice Act (705 ILCS 95/1 et seq. (West 2014)) enacted in 2013. The Task Force, a bipartisan group which included members appointed by representatives from all three branches of state government, was charged with responsibility for conducting “a thorough review of the various statutory fees imposed or assessed on criminal defendants and civil litigants” and then submitting a report containing its findings and any recommendations to the Supreme Court and the General Assembly. 705 ILCS 95/25 (a), (d) (West 2014).

The Task Force recently concluded its work. It made four key findings. First, a growing belief that the court system should be self-funded rather than supported through general government revenue sources has resulted “in a complex web of filing fees, fines, surcharges, and other costs,” the cumulative effect of which has been to “undermine the state’s commitment to provide its citizens with access to the courts in civil proceedings, while distorting and unduly increasing the financial repercussions associated with criminal and traffic charges.” Second, court fines and fees are constantly increasing and are outpacing inflation. Third, there is excessive variation across the state in the amount of assessments imposed for the same type of proceedings, an inconsistency that threatens the fairness, real and perceived, of the current system. Fourth and finally, the assessments have a severe and disproportional impact on low and moderate income individuals. Absent relief from runaway court costs, “more and more Illinois residents will be forced to decide between protecting their legal rights and paying their basic living expenses.” Statutory Court Fee Task Force, Illinois Court Assessments, supra at 1-2.

Based on these findings, and with the input and support of the Administrative Office of the Illinois Courts, the Task Force urged the General Assembly to simplify and streamline the current statutory fee provisions and impose caps on the amount of fees that can be assessed in civil cases. The Task Force also recommended that current fee waiver statutes and court rules be amended to permit financial relief from assessments in civil cases for Illinois residents living in or near poverty. Corresponding recommendations were made with regard to assessments imposed on defendants in criminal cases. In addition, the Task Force proposed that the Supreme Court revamp the process by which fines are calculated in cases involving minor traffic offenses and recommended that the General Assembly adopt a checklist to help guide it in determining whether and how future assessments should be implemented. Statutory Court Fee Task Force, Illinois Court Assessments, supra at 33-35.

In response to the Task Force’s report, Representatives Steven Andersson and Elaine Nekritz introduced House Bill 2591. That proposed legislation, which has now attracted numerous additional co-sponsors, would implement the Task Force’s key recommendations. To do so, it would repeal various laws and amend numerous existing codes and acts, including the Clerks of Court Act and the Code of Criminal Procedure of 1963. Massive in length (301 pages), but clear in purpose, the bill promises to significantly reduce barriers faced by Illinoisans unable to afford the standard fines and fees imposed under current law and help make sure that the judicial system is accessible to all, regardless of income. Everyone concerned with achieving those vital goals should be watching the fate of HB 2591 as the General Assembly’s current session nears its conclusion.