The Counties Code provision awarding state’s attorneys $50 for each day employed in the hearing of a case of habeas corpus does not use that term in the generic sense so as to apply to other collateral proceedings—fee imposed on offender for seeking section 2-1401 relief from judgment vacated.
Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Carol A. Kipperman, Judge, presiding
Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, and Yasaman Hannah Navai, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.
Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Michelle Katz, Annette Collins and Christine Cook, Assistant State’s Attorneys, of counsel), for the People
Chief Justice Kilbride and Justices Thomas, Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion.
¶ 1 This case concerns whether section 4-2002.1(a) of the Counties Code (55 ILCS 5/4-2002.1(a) (West 2008)), which permits State's Attorneys to collect a $50 fee "[f]or each day actually employed in the hearing of a case of habeas corpus, " also permits State's Attorneys to collect such a fee when they participate in the hearing of a petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2008)). The circuit court of Cook County assessed the fee, and the appellate court affirmed. 2012 IL App (1st) 111378. This court allowed Johnson's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Feb. 26, 2010). For the following reasons, we reverse, in part, the judgments of the circuit and appellate courts and remand this cause to the circuit court with directions that it vacate the $50 State's Attorney fee.
¶ 2 I. BACKGROUND
¶ 3 Petitioner Omar Johnson was convicted of first degree murder, armed robbery, aggravated vehicular hijacking, aggravated kidnapping and concealment of a homicidal death. He was sentenced to a term of natural life for murder; 60 years' imprisonment for armed robbery, aggravated vehicular hijacking and aggravated kidnapping; and 10 years' imprisonment for concealment of a homicidal death. The appellate court affirmed Johnson's convictions and sentences on appeal, as well as the circuit court's dismissal of his subsequent postconviction petition (725 ILCS 5/122-1 et seq. (West 2004)).
¶ 4 Johnson filed a section 2-1401 petition in 2008, which the circuit court erroneously dismissed, and the appellate court remanded the cause to the circuit court for further proceedings. Subsequently, the State filed a motion to dismiss the petition. At a hearing in 2010, Johnson withdrew his original petition and filed an amended petition. The State filed a motion to dismiss the amended petition and requested that Johnson be assessed filing fees and court costs for filing a frivolous petition, as provided for in section 22-105(a) of the Code of Civil Procedure (735 ILCS 5/22-105(a) (West 2010)). That section permits a court to assess filing fees and court costs against an inmate who files a petition that the court determines is frivolous. 735 ILCS 5/22-105(a) (West 2010). The circuit court granted the State's motion to dismiss and assessed numerous fees and costs against Johnson, including the $50 State's Attorney fee at issue here, pursuant to section 4-2002.1(a). Johnson now appeals to this court, challenging only the imposition of the $50 State's Attorney fee.
¶ 5 II. ANALYSIS
¶ 6 The sole issue before us is whether the $50 State's Attorney fee in section 4-2002.1(a) of the Counties Code applies to Johnson's section 2-1401 petition. Johnson contends that the fee was not statutorily authorized since section 4-2002.1(a) does not mention a section 2-1401 petition for relief from judgment.
¶ 7 The State responds that the fee should apply to all collateral proceedings in which the State is employed in the hearing of a case. The State argues there is little reason to differentiate between collecting a fee when the State's Attorney is employed "in the hearing of a case of habeas corpus" or ...