ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Lewis, 2011 IL App (5th) 110279
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MATTHEW A. LEWIS, Defendant-Appellant.
District & No. Fifth District
Docket Nos. 5-11-0279, 5-11-0280 cons.
Filed December 9, 2011
Held Fee and cost waiver certifications filed under section 5-105.5(b) of the
(Note: This syllabus Code of Civil Procedure are sufficient to waive fees for the filing of
constitutes no part of petitions for expungement and the orders in defendant’s cases denying fee
the opinion of the court waivers under section 5-105.5(b) were reversed, and since waivers are
but has been prepared only “all-or-nothing,” regardless of whether waivers are requested under
by the Reporter of section 5-105 or 5-105.5(b), the orders allowing fee waivers by reducing
Decisions for the the fees to $75 pursuant to section 5-105 were vacated and the cause was
convenience of the remanded with directions to enter orders granting the fee waivers in their
reader.)
entirety.
Decision Under Appeal from the Circuit Court of Jackson County, Nos. 05-CM-51, 05-
Review OV-1086; the Hon. William G. Schwartz, Judge, presiding.
Judgment Certified question answered; April 26, 2011, orders reversed; June 27,
2011, orders vacated; cause remanded with directions.
Counsel on Michael A. Fiello and Diane M. Goffinet, both of Land of Lincoln Legal
Appeal Assistance Foundation, Inc., of Carbondale, for appellant.
Michael Wepsiec, State’s Attorney, of Murphysboro (Patrick Delfino,
Stephen E. Norris, and Sharon Shanahan, all of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
No brief filed for City of Carbondale.
Paul E. Haidle, of Cabrini Green Legal Aid, of Chicago, amicus curiae.
Panel JUSTICE SPOMER delivered the judgment of the court, with opinion.
Presiding Justice Donovan and Justice Stewart concurred in the judgment
and opinion.
OPINION
¶1 These cases come to us on interlocutory appeal, pursuant to Illinois 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.
¶2 FACTS
¶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)).1 That same date, the circuit court entered orders by docket entries, denying the
1
Pursuant to the Jackson County website regarding petitions for expungement: “If there was
a case filed in our office following an arrest, then the Expungement Petition will be filed within that
case. If an arrest was made, but no case was ever filed in our office, then an MR–Miscellaneous
Remedy case will need to be filed and the Expungement Petition will be filed within that case. ***
The filing fees are as follows: Within a case: $160.00 New MR Case: $266.00.” Jackson County
-2-
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.
¶5 ANALYSIS
¶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
determination has been made that the party is indigent, “along with the complaint, the
appearance, or any other paper that would otherwise require payment of a fee.” 735 ILCS
5/5-105.5(b) (West 2010).
¶8 In the case at bar, the defendant was represented by a legal services provider who
Circuit Court, New Filing Fees effective January 1, 2010 (last visited Nov. 16, 2011),
http://www.circuitclerk.co.jackson.il.us/fees_2010.htm.
-3-
provided all of the required documentation under section 5-105.5(b). Accordingly, the crux
of the certified question on appeal is the determination of whether expungement proceedings
are “civil actions,” as required by that section. The State insists that the circuit court properly
denied the fee waivers under section 5-105.5(b) because expungement proceedings are not
civil, but criminal matters, corollary to underlying criminal proceedings. To the contrary, the
defendant argues that the fee waivers should have been automatically granted because
expungement proceedings are civil and the requirements of section 5-105.5(b) were met. We
agree with the defendant.
¶9 As aptly noted in the defendant’s brief, an expungement case has none of the
characteristics of a criminal case or a quasi-criminal case. A criminal case is brought by the
State pursuant to the provisions of the Illinois Criminal Code of 1961 (720 ILCS 5/1-1 et seq.
(West 2010)) or by a municipality for violations of the Illinois Municipal Code (65 ILCS 5/1-
1-1 et seq. (West 2010)). Criminal cases are prosecuted by the appropriate authorities,
usually the Attorney General for the State (15 ILCS 205/4 (West 2010)), the State’s Attorney
(55 ILCS 5/3-9005 (West 2010)), or the city attorney (65 ILCS 5/1-2-1.1 (West 2010)). The
possible outcomes are a conviction after trial (720 ILCS 5/2-5 (West 2010)), a negotiated
plea agreement (People v. Moore, 345 Ill. App. 3d 1043, 1047 (2003)), an acquittal after trial
(720 ILCS 5/2-1 (West 2010)), or a dismissal by nolle prosequi (People v. Stafford, 325 Ill.
App. 3d 1069, 1073 (2001)). “The term quasi[-]criminal embraces all offenses not crimes or
misdemeanors, *** which it is proper should be punished by forfeitures or penalties.” Tully
v. Town of Northfield, 6 Ill. App. 356, 359 (1880).
¶ 10 Based on the foregoing, we find that expungement actions are not criminal because they
are not brought by the State or a municipality. In addition, the possible outcomes of
expungement actions do not include convictions, acquittals, negotiated pleas, or nolle
prosequi dismissals. Neither are expungement actions quasi-criminal, because they are not
offenses for which penalties are being sought. Accordingly, we find that expungement
proceedings are civil in nature.2 We note that it makes no difference whether counties file
expungement petitions within previously filed, underlying criminal cases or as MR cases,
because regardless of the classification or the docket number, expungement is nonetheless
a civil remedy.
¶ 11 We further find that the circuit court’s denial of the fee waivers under section 5-105.5(b)
of the Code and its reasoning that expungement proceedings are “not purely civil” are
incongruent with its order requiring the defendant to file affidavits pursuant to section 5-105
of the Code, which states, “ ‘Fees, costs, and charges’ means payments imposed on a party
in connection with the prosecution or defense of a civil action ***.” (Emphasis added.) 735
ILCS 5/5-105(a)(1) (West 2010). Both sections are regarding fee waivers for indigent
2
Although we find expungement proceedings to be civil, we are mindful that section
5.2(d)(6) of the Criminal Identification Act (20 ILCS 2630/5.2(d)(6) (West 2010)) grants the trial
court discretion to grant or deny a petition to expunge, and that the denial of the petition may have
consequences (e.g., an unexpunged criminal history) which could be construed as penal in nature.
However, it is the remedy sought by the petitioner, not the consequences of the denial of that
remedy, upon which we must focus.
-4-
persons in civil actions. The only difference between the two sections is that under section
5-105.5(b), a civil legal services provider can certify indigence and under section 5-105, the
party must file an affidavit so that the circuit court may determine indigence.
¶ 12 We recognize that section 10.6 of the State Appellate Defender Act requires the State
Appellate Defender to, inter alia, disseminate detailed information regarding the process of
expungement. 725 ILCS 105/10.6 (West 2010). This, however, does not change the fact that
expungement is a civil remedy. Moreover, a link is available on the State Appellate Defender
website under information relating to expungement, which provides a printable order of
indigence, which indicates that it is brought pursuant to section 5-105 of the Code, which,
again, provides for waiver of fees for indigent persons in civil actions. Office of the State
Appellate Defender, Indigency Order (last visited Nov. 17, 2011),
http://www.state.il.us/defender/indapp.html.
¶ 13 In addition, we must point out the error the circuit court made in reducing the fees under
section 5-105. The order is essentially a check-the-box form that contains, inter alia, an
option to reduce the fees. However, no such option exists under the Code. Only “all-or-
nothing” options are available, regardless of whether fee waivers are requested under section
5-105 or by certification under section 5-105.5(b). Section 5-105 provides:
“If the court finds that the applicant is an indigent person, the court shall enter an order
permitting the applicant to sue or defend without payment of fees, costs, or charges. If
the application is denied, the court shall enter an order to that effect stating the specific
reasons for the denial.” (Emphasis added.) 735 ILCS 5/5-105(d) (West 2010).
¶ 14 Similarly, section 5-105.5(b) mandates an automatic fee waiver so long as certain
prerequisites are met: “When a party is represented in a civil action by a civil legal services
provider, 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 ***.” (Emphases
added.) 735 ILCS 5/5-105.5(b) (West 2010). Accordingly, the circuit court is required to
grant or deny fee waivers in their entirety, under either section of the Code. The fact that the
option to reduce the fees is available on a check-the-box form used by the circuit court is of
no consequence because the same is not authorized by either section of the Code.
¶ 15 CONCLUSION
¶ 16 For the foregoing reasons, we answer the certified question in the affirmative, reverse the
April 26, 2011, orders which denied the fee waivers under section 5-105.5(b) of the Code
(735 ILCS 5/5-105.5(b) (West 2010)), vacate the June 27, 2011, orders which allowed the
fee waivers to the extent of reducing the fees to $75 under section 5-105 of the Code (735
ILCS 5/5-105 (West 2010)), and remand with directions to enter orders granting the fee
waivers in their entirety under section 5-105.5(b) of the Code.
¶ 17 Certified question answered; April 26, 2011, orders reversed; June 27, 2011, orders
vacated; cause remanded with directions.
-5-