98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB4459
 
Introduced , by Rep. John M. Cabello
 
SYNOPSIS AS INTRODUCED:



    
725 ILCS 5/112A-17 from Ch. 38, par. 112A-17
750 ILCS 60/217 from Ch. 40, par. 2312-17

 Amends the Code of Criminal Procedure of 1963 and the Illinois Domestic Violence Act of 1986. Provides that upon petition, the court shall order that a person against whom an emergency order of protection was issued shall have all records related to the emergency order expunged (unless the person violated the order) from the court's records and from the Department of State Police's Law Enforcement Agencies Data System if: (1) the person who sought the emergency order fails to seek a plenary order of protection before the emergency order expires; (2) there is an agreed dismissal; or (3) the court denies the issuance of a plenary order of protection following the emergency order. Provides that the clerk shall immediately file the expungement order and all records to be expunged shall be expunged no later than 3 business days after the order. Effective June 1, 2014.



LRB098 18432 MRW 53569 b


 
 
A BILL FOR
 


HB4459LRB098 18432 MRW 53569 b



1 AN ACT concerning domestic violence.


2 Be it enacted by the People of the State of Illinois,

3represented in the General Assembly:



4 Section 5. The Code of Criminal Procedure of 1963 is 
5amended by changing Section 112A-17 as follows:




6 (725 ILCS 5/112A-17) (from Ch. 38, par. 112A-17)



7 Sec. 112A-17. Emergency order of protection. 

8 (a) Prerequisites. An emergency order of protection shall 
9issue if
petitioner
satisfies the requirements of this 
10subsection for one or more of the requested
remedies. For each 
11remedy requested, petitioner shall establish that:


12  (1) The court has jurisdiction under Section 112A-9;


13  (2) The requirements of Section 112A-14 are satisfied; 
14 and


15  (3) There is good cause to grant the remedy, regardless 
16 of prior service
of process or of notice upon the 
17 respondent, because:


18   (i) For the remedies of "prohibition of abuse" 
19 described in
Section 112A-14(b)(1), "stay away order 
20 and additional prohibitions" described
in Section

21 112A-14(b)(3), "removal or concealment of minor child" 
22 described in Section
112A-14(b)(8), "order to appear" 
23 described in Section 112A-14(b)(9), "physical
care and 
 
 
HB4459- 2 -LRB098 18432 MRW 53569 b


1 possession of the minor child" described in Section 
2 112A-14(b)(5),
"protection of property" described in 
3 Section 112A-14(b)(11), "prohibition
of entry" 
4 described in Section 112A-14(b)(14), "prohibition of 
5 firearm possession" described in Section 
6 112A-14(b)(14.5), "prohibition of access to
records" 
7 described in Section 112A-14(b)(15), and "injunctive 
8 relief"
described in Section 112A-14(b)(16), the harm 
9 which that remedy
is intended to prevent would be 
10 likely to occur if the respondent were given
any prior 
11 notice, or greater notice than was actually given, of 
12 the petitioner's
efforts to obtain judicial relief;


13   (ii) For the remedy of "grant of exclusive 
14 possession of residence"
described in Section 
15 112A-14(b)(2), the immediate danger of further
abuse 
16 of petitioner by respondent,
if petitioner chooses or 
17 had chosen to remain in the residence or household

18 while respondent was given any prior notice or greater 
19 notice than was
actually given of petitioner's efforts 
20 to obtain judicial relief,
outweighs the hardships to 
21 respondent of an emergency order
granting petitioner 
22 exclusive possession of the residence or household.

23 This remedy shall not be denied because petitioner has 
24 or could obtain temporary
shelter elsewhere while 
25 prior notice is given to respondent, unless the

26 hardships to respondent from exclusion from the home 
 
 
HB4459- 3 -LRB098 18432 MRW 53569 b


1 substantially outweigh
those to petitioner.


2   (iii) For the remedy of "possession of personal 
3 property"
described in
Section 112A-14(b)(10), 
4 improper disposition of the
personal property would be 
5 likely
to occur if respondent were given any prior 
6 notice, or greater notice than
was actually given, of 
7 petitioner's efforts to obtain judicial relief, or

8 petitioner has an immediate and pressing need for 
9 possession of that property.

10 An emergency order may not include the counseling, legal 
11custody, payment
of support or monetary compensation remedies.

12 (b) Appearance by respondent.
If respondent appears in 
13court for this hearing for an emergency order,
he or she may 
14elect to file a general appearance and testify. Any
resulting 
15order may be an emergency order, governed by this Section. 
16Notwithstanding the
requirements of this Section, if all 
17requirements of Section 112A-18 have been
met, the Court may 
18issue a 30-day interim order.

19 (c) Emergency orders: court holidays and evenings.


20  (1) Prerequisites. When the court is unavailable at the 
21 close of
business, the petitioner may file a petition for a 
22 21-day emergency order
before any available circuit judge 
23 or associate judge who may grant relief
under this Article. 
24 If the judge finds that there is an immediate and present

25 danger of abuse to petitioner and that petitioner has 
26 satisfied the
prerequisites set forth in subsection (a) of 
 
 
HB4459- 4 -LRB098 18432 MRW 53569 b


1 Section 112A-17, that judge
may issue an emergency order of 
2 protection.


3  (1.5) Issuance of order. The chief judge of the circuit 
4 court
may designate for each county in the circuit at least 
5 one judge to be
reasonably available to
issue orally, by 
6 telephone, by facsimile, or otherwise, an emergency
order 
7 of protection at all times, whether or not the court is in 
8 session.


9  (2) Certification and transfer. The judge who issued 
10 the order under this Section shall promptly communicate or 
11 convey the order to the sheriff to facilitate the entry of 
12 the order into the Law Enforcement Agencies Data System by 
13 the Department of State Police pursuant to Section 112A-28. 
14 Any order issued under this Section and
any documentation 
15 in support thereof shall be certified on the next court
day 
16 to the appropriate court. The clerk of that court shall 
17 immediately
assign a case number, file the petition, order 
18 and other documents with the
court and enter the order of 
19 record and file it with the sheriff for
service, in 
20 accordance with Section 112A-22. Filing the petition shall

21 commence proceedings for further relief, under Section 
22 112A-2.
Failure to comply with the requirements of this 
23 subsection shall not affect
the validity of the order.

24 (d) Expungement.
25  (1) Upon the petition of a respondent subject to an 
26 emergency order issued under this Section, the court shall 
 
 
HB4459- 5 -LRB098 18432 MRW 53569 b


1 order that all records related to the emergency order be 
2 expunged from the court's records and from the Law 
3 Enforcement Agencies Data System maintained by the 
4 Department of State Police if the petitioner who sought the 
5 emergency order failed to seek a plenary order of 
6 protection under this Code prior to the expiration of the 
7 emergency order.
8  (2) Following issuance of an emergency order of 
9 protection under this Section, upon the subsequent denial 
10 of a plenary order of protection, an agreed dismissal of an 
11 action for a plenary order of protection, or the dismissal 
12 of an action for a plenary order of protection due to the 
13 petitioner's or the petitioner's legal counsel's failure 
14 to appear, the court shall order all records related to the 
15 emergency order be expunged from the court's records and 
16 from the Law Enforcement Agencies Data System maintained by 
17 the Department of State Police. 
18  (3) The clerk of the court shall immediately file a 
19 certified copy of the expungement order with the Department 
20 of State Police. 
21  (4) All records related to the emergency order required 
22 to be expunged under this subsection (d) shall be expunged 
23 no later than 3 business days after the court issues the 
24 expungement order. 
25  (5) Records related to an emergency order of protection 
26 shall not be expunged under this subsection (d) if the 
 
 
HB4459- 6 -LRB098 18432 MRW 53569 b


1 respondent against whom the emergency order was issued 
2 violated the order. 
3(Source: P.A. 96-1239, eff. 1-1-11; 96-1241, eff. 1-1-11; 
497-333, eff. 8-12-11.)


5 Section 10. The Illinois Domestic Violence Act of 1986 is 
6amended by changing Section 217 as follows:




7 (750 ILCS 60/217) (from Ch. 40, par. 2312-17)


8 Sec. 217. Emergency order of protection. 

9 (a) Prerequisites. An emergency order of protection shall 
10issue if
petitioner satisfies the requirements of this 
11subsection for one or more of the
requested remedies. For each 
12remedy requested, petitioner shall establish
that:


13  (1) The court has jurisdiction under Section 208;


14  (2) The requirements of Section 214 are satisfied; and


15  (3) There is good cause to grant the remedy, regardless 
16 of prior service
of process or of notice upon the 
17 respondent, because:


18   (i) For
the remedies of "prohibition of abuse" 
19 described in
Section 214(b)(1), "stay away order and 
20 additional prohibitions" described in
Section

21 214(b)(3), "removal or concealment of minor child" 
22 described in Section
214(b)(8), "order to appear" 
23 described in Section 214(b)(9), "physical
care and 
24 possession of the minor child" described in Section 
 
 
HB4459- 7 -LRB098 18432 MRW 53569 b


1 214(b)(5),
"protection of property" described in 
2 Section 214(b)(11), "prohibition
of entry" described 
3 in Section 214(b)(14), "prohibition of firearm 
4 possession" described in Section 214(b)(14.5), 
5 "prohibition of access to
records" described in 
6 Section 214(b)(15), and "injunctive relief"
described 
7 in Section 214(b)(16), the harm which that remedy
is 
8 intended to prevent would be likely to occur if the 
9 respondent were given
any prior notice, or greater 
10 notice than was actually given, of the
petitioner's 
11 efforts to obtain judicial relief;


12   (ii) For the remedy of "grant of exclusive 
13 possession of
residence" described in Section 
14 214(b)(2), the immediate danger of further
abuse of 
15 petitioner by respondent,
if petitioner chooses or had 
16 chosen to remain in the residence or household
while 
17 respondent was given any prior notice or greater notice 
18 than was
actually given of petitioner's efforts to 
19 obtain judicial relief,
outweighs the hardships to 
20 respondent of an emergency order
granting petitioner 
21 exclusive possession of the residence or household.

22 This remedy shall not be denied because petitioner has 
23 or could obtain
temporary shelter elsewhere while 
24 prior notice is given to respondent, unless
the

25 hardships to respondent from exclusion from the home 
26 substantially outweigh
those to petitioner;


 
 
HB4459- 8 -LRB098 18432 MRW 53569 b


1   (iii) For the remedy of "possession of personal 
2 property"
described in
Section 214(b)(10), improper 
3 disposition of the personal
property would be likely
to 
4 occur if respondent were given any prior notice, or 
5 greater notice than
was actually given, of 
6 petitioner's efforts to obtain judicial relief, or

7 petitioner has an immediate and pressing need for 
8 possession of that property.

9 An emergency order may not include the counseling, legal 
10custody, payment
of support or monetary compensation remedies.

11 (b) Appearance by respondent.
If respondent appears in 
12court for this hearing for an emergency order,
he or she may 
13elect to file a general appearance and testify.
Any resulting 
14order may be an emergency order, governed
by this Section.

15Notwithstanding the requirements of this Section, if all 
16requirements of
Section 218 have been met, the court may issue 
17a 30-day interim order.

18 (c) Emergency orders: court holidays and evenings.


19  (1) Prerequisites. When the court is unavailable at the 
20 close of
business, the petitioner may file a petition for a 
21 21-day emergency order
before any available circuit judge 
22 or associate judge who may grant relief
under this Act. If 
23 the judge finds that there is an immediate and present

24 danger of abuse to petitioner and that petitioner has 
25 satisfied the
prerequisites set forth in subsection (a) of 
26 Section 217, that judge may
issue an emergency order of 
 
 
HB4459- 9 -LRB098 18432 MRW 53569 b


1 protection.


2  (1.5) Issuance of order. The chief judge of the circuit 
3 court
may designate for each county in the circuit at least 
4 one judge to be
reasonably available to
issue orally, by 
5 telephone, by facsimile, or otherwise, an emergency
order 
6 of protection at all times, whether or not the court is in 
7 session.


8  (2) Certification and transfer. The judge who issued 
9 the order under this Section shall promptly communicate or 
10 convey the order to the sheriff to facilitate the entry of 
11 the order into the Law Enforcement Agencies Data System by 
12 the Department of State Police pursuant to Section 302. Any 
13 order issued under this Section and
any documentation in 
14 support thereof shall be certified on the next court
day to 
15 the appropriate court. The clerk of that court shall 
16 immediately
assign a case number, file the petition, order 
17 and other documents with the
court, and enter the order of 
18 record and file it with the sheriff for
service, in 
19 accordance with Section 222. Filing the petition
shall 
20 commence proceedings for further relief under Section 202.

21 Failure to comply with the requirements of this subsection 
22 shall not
affect the validity of the order.

23 (d) Expungement.
24  (1) Upon the petition of a respondent subject to an 
25 emergency order issued under this Section, the court shall 
26 order that all records related to the emergency order be 
 
 
HB4459- 10 -LRB098 18432 MRW 53569 b


1 expunged from the court's records and from the Law 
2 Enforcement Agencies Data System maintained by the 
3 Department of State Police if the petitioner who sought the 
4 emergency order failed to seek a plenary order of 
5 protection under this Act prior to the expiration of the 
6 emergency order.
7  (2) Following issuance of an emergency order of 
8 protection under this Section, upon the subsequent denial 
9 of a plenary order of protection, an agreed dismissal of an 
10 action for a plenary order of protection, or the dismissal 
11 of an action for a plenary order of protection due to the 
12 petitioner's or the petitioner's legal counsel's failure 
13 to appear, the court shall order all records related to the 
14 emergency order be expunged from the court's records and 
15 from the Law Enforcement Agencies Data System maintained by 
16 the Department of State Police. 
17  (3) The clerk of the court shall immediately file a 
18 certified copy of the expungement order with the Department 
19 of State Police. 
20  (4) All records related to an emergency order required 
21 to be expunged under this subsection (d) shall be expunged 
22 no later than 3 business days after the court issues the 
23 expungement order. 
24  (5) Records related to an emergency order of protection 
25 shall not be expunged under this subsection (d) if the 
26 respondent against whom the emergency order was issued 
 
 
HB4459- 11 -LRB098 18432 MRW 53569 b


1 violated the order. 
2(Source: P.A. 96-701, eff. 1-1-10; 96-1241, eff. 1-1-11.)



3 Section 99. Effective date. This Act takes effect June 1, 
42014.