Appeal from the Circuit Court of Jackson County. No. 05-OV-1086 Honorable William G. Schwartz, Judge, presiding. Appeal from the Circuit Court of Jackson County. No. 05-CM-51 Honorable William G. Schwartz,Judge, presiding.
The opinion of the court was delivered by: Justice Spomer
The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.
IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT
JUSTICE SPOMER delivered the judgment of the court, with opinion. Presiding Justice Donovan and Justice Stewart concurred in the judgment and opinion.
¶ 1 These cases come to us on interlocutory appeal, pursuant to Supreme Court Rule 308(a) (eff. Feb. 26, 2010), from the circuit court of Jackson County, which certified the following question for our review: whether fee and cost waiver certifications, filed pursuant to section 5-105.5(b) of the Code of Civil Procedure (Code) (735 ILCS 5/5-105.5(b) (West 2010)), are sufficient to waive fees for the filing of petitions for expungement. For the following reasons, we answer the certified question in the affirmative, reverse the April 26, 2011, orders, vacate the June 27, 2011, orders, and remand with directions to enter orders allowing the fee waivers in their entirety, pursuant to section 5-105.5(b) of the Code.
¶ 3 On April 26, 2011, counsel from Land of Lincoln Legal Assistance Foundation, Inc., entered an appearance on behalf of the defendant in the circuit court of Jackson County, in expungement proceedings in the underlying cases, and filed fee and cost waiver certifications, pursuant to section 5-105.5(b) of the Code (735 ILCS 5/5-105.5(b) (West 2010)).*fn1 That same date, the circuit court entered orders by docket entries, denying the waivers and elaborating that fees are not waived in expungement proceedings. Counsel for the defendant filed motions to reconsider on May 24, 2011, which were denied by docket entries the following day. In denying the motions, the circuit court stated that expungement proceedings are not purely civil, but quasi-criminal or corollary to criminal proceedings, to which the cited statute is not applicable.
¶ 4 On June 20, 2011, at the request of the defendant, the circuit court entered orders certifying the question at hand for interlocutory appeal, pursuant to Illinois Supreme Court Rule 308(a) (eff. Feb. 26, 2010). In certifying the question, the circuit court noted that because it found section 5-105.5(b) of the Code to be inapplicable, it required the defendant to file applications and supporting affidavits for leave to sue or defend as an indigent person, as provided in section 5-105 of the Code (735 ILCS 5/5-105 (West 2010)) and Illinois Supreme Court Rule 298 (eff. Nov. 1, 2003). On June 22, 2011, the defendant filed these documents. On June 27, 2011, the circuit court entered orders allowing the defendant's section 5-105 applications to the extent of reducing the fees to $75 in each of the underlying cases.
¶ 6 "The scope of review in an interlocutory appeal under Rule 308 is ordinarily limited to the question certified by the trial court, which, because it must be a question of law, is reviewed de novo." Hudkins v. Egan, 364 Ill. App. 3d 587, 590 (2006). The certified question on appeal is whether fee and cost waiver certifications, filed pursuant to section 5-105.5(b) of the Code (735 ILCS 5/5-105.5(b) (West 2010)), are sufficient to waive fees for the filing of petitions for expungement. We begin by noting that the language of section 5.2(d) of the Criminal Identification Act, under which the defendant filed his petition to expunge, provides, "The petitioner shall pay the applicable fee, if not waived." 20 ILCS 2630/5.2(d)(1) (West 2010). Accordingly, the legislature contemplated scenarios where fees for expungement would be waived.
¶ 7 We turn now to the relevant statutory language. Section 5-105.5(b) of the Code provides that "all fees and costs relating to filing, appearing, transcripts on appeal, and service of process shall be waived without the necessity of a motion for that purpose," so long as the party "is represented in a civil action by a civil legal services provider." 735 ILCS 5/5-105.5(b) (West 2010). "We note that section 5-105.5(b) does not require plaintiffs or their counsel to submit 'evidence' in support of their fee waiver claim." Rodriguez v. Hushka, 325 Ill. App. 3d 329, 333 (2001). Rather, all that is required for the waiver of fees under this section is that the legal services provider, in a civil action, file a certification that a ...