Mary L. Mikva
Mary L. Mikva

For the second time in as many weeks, a 1st District Appellate Court panel on Monday criticized the amount of time and energy the Cook County judicial system spends imposing incorrect fines and fees on defendants.

The 1st District panel called on the Cook County Circuit Court, prosecutors and defense counsels to correctly resolve all issues surrounding a defendant’s fines and fees before the cases come up on appeal. Even though it’s a reviewing court, the panel noted they often serve as the first court to address the issues surrounding fines and fees.

In finding that defendant David Mullen was owed $115 in presentencing credit, the 1st District panel criticized the “complicated, inefficient and oppressive manner in which fines and fees are frequently assessed against convicted defendants in the trial court.”

“We share these concerns and join the chorus of voices from members of our court urging trial court judges and counsel to address these issues in the first instance in the trial — by agreement where possible,” Justice Mary L. Mikva wrote in People v. David Mullen, 2018 IL App (1st) 152306.

Mullen was convicted of robbery and sentenced to seven years in prison in June 2015. He did not appeal his conviction or his sentence, just the $469 in fines and fees that were imposed on him.

The 1st District panel also called on the Illinois General Assembly to overhaul the 96 different fines and fees that can be levied on defendants in Cook County courts. The panel said many of these assessments are “uncollectable but oppressive,” and are not properly labeled.

But the 1st District panel noted the terms fine and fee are often misused. A fine levied against a defendant is a penalty which can be offset through some kind of pretrial or presentence credit. A fee is levied to compensate the cost of prosecution and cannot be offset.

For instance, the 1st District panel reduced the $15 state police operations fee and the $50 court systems fee imposed against Mullen because they are actually fines. The presentence incarceration credit Mullen earned reduced those amounts.

“The time spent briefing fines and fees issues on appeal is time that attorneys in the Office of the State Appellate Defender and the state’s attorney’s appeals divisions could be spending on other cases,” Mikva wrote. “The backlog in those offices has meant that multiple requests for extensions in briefing schedules are routinely made, usually resulting in years between when a criminal appeal is filed and when the court is able to issue a decision.”

Mullen also challenged a $500 public defender attorney fee that was slapped on him. He argued it should be vacated because the trial court never held the mandatory hearing on whether he “should be required to reimburse the state for any part of the cost of his representation by the public defender’s office,” Mikva wrote.

The 1st District panel remanded Mullen’s case back to the trial court so they can hold that hearing.

The 1st District panel’s criticism comes one week after another three-justice panel — Mary Anne Mason, P. Scott Neville Jr. and Aurelia Pucinski — also bemoaned the amount of time and energy the appellate court puts into correcting the fines and fees levied against defendants. In People v. Smith, 2018 IL App (1st) 151402, the 1st District panel reduced the defendant’s fines and fees from $569 to $249.

Both the Mullen and Smith courts noted the Order Assessing Fines, Fees and Costs form used in Cook County court incorrectly labels which assessments can be offset by presentence credit.

Unlike Smith, the state in the Mullen case did contend Mullen forfeited his ability to appeal the various fines and fees imposed on him because he did not challenge them at the trial court.

However, the 1st District panel found that, under the Illinois Supreme Court’s decision in People v. Caballero, 228 Ill. 2d 79 (2008), it has the authority to correct assessments that are labeled as fees when they are actually fines.

The panel noted the state’s attorney’s willingness to not object to defendants who raise fines and fees challenges for the first time on appeal gives them the power to decide whether these defendants can seek relief.

The decisions in Smith and Mullen come as two Illinois lawmakers are drafting legislative language that would overhaul the fine and fee structures in both civil and criminal cases.

Under the proposed legislation from state Rep. Steven A. Andersson and Sen. John G. Mulroe, those 96 assessments would be consolidated into a schedule with 12 different categories.

“We’re realigning the fees so they relate to the crime,” Andersson, a Geneva Republican, said.

Andersson said the proposed schedule will take into account a person’s ability to pay the fines and fees they would be sanctioned with. Andersson said defendants would see their assessments decrease on a sliding scale starting at 200 percent of the poverty level.

Mulroe, a Chicago Democrat, said the legislation is designed to increase uniformity across the state. Citing his experience as a former assistant state’s attorney, Mulroe said he was aware of how, in one county, judges would levy fines against defendants for crimes like driving under the influence, while another county wouldn’t apply those fines for the same crimes.

“Not everyone is being treated the same,” he said.

Andersson described the decisions in Mullen and Smith as “reflective” of a national issue — that the court system is being funded “on the backs” of defendants and it’s “getting way out of whack.”

“We passed a bill to build a new courthouse in Kane. Who should be burdened with that cost? The general taxpayer or the people who are using it?” Mulroe said. “We’re trying to play this balancing act — and make it uniform throughout the state.”

Both Andersson and Mulroe were members of a task force authorized by the Illinois General Assembly to examine the way in which the court system imposes financial costs on civil litigants and criminal defendants. The legislation they plan to introduce is an “outgrowth” of that task force’s June 1, 2016, recommendations, said Steven F. Pflaum, the co-chair of Neal Gerber & Eisenberg LLP’s litigation department who also chaired the task force.

“I am heartened by the appellate court’s recognition that the current system of fines, fees and costs is dysfunctional and in urgent need of legislative action. Carefully crafted legislation focusing on the issues identified by the appellate court, as well as related problems associated with fees and costs in civil cases, is being introduced in both houses of the General Assembly,” Pflaum wrote in an e-mail. “The Task Force urges the General Assembly to act swiftly on the proposed legislation.”

The state was represented by Cook County Assistant State’s Attorneys Alan J. Spellberg, Mary P. Needham and Mari R. Hatzenbuehler. A spokeswoman with the office did not return a request for comment.

Mullen was represented by Assistant State Appellate Defender Robert S. Hirschhorn. He did not return a request for comment.

Justices Daniel J. Pierce and Sheldon A. Harris concurred with the Mullen opinion.

The case is People v. David Mullen, 2018 IL App (1st) 152306.