2013 IL 114639

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 114639)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. OMAR

JOHNSON, Appellant.

Opinion filed September 19, 2013.

JUSTICE FREEMAN delivered the judgment of the court, with

opinion. 

Chief Justice Kilbride and Justices Thomas, Garman, Karmeier,

Burke, and Theis concurred in the judgment and opinion.

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 dayactually 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 Attorneyis employed “in the hearing

of a case of habeas corpus” or in the hearing of a section 2-1401

petition or postconviction petition.

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¶ 8 To answer the question presented on appeal, we must construe

section 4-2002.1(a) of the Counties Code, which provides in relevant

part:

“(a) State’s attorneys shall be entitled to the following

fees:

* * * 

For each day actually employed in the hearing of a case of

habeas corpus in which the people are interested, $50.” 55

ILCS 5/4-2002.1(a) (West 2010).

¶ 9 Our primary objective in construing a statute is to ascertain and

give effect to the intent of the legislature, bearing in mind that the

best evidence of such intent is the statutory language, given its plain

and ordinary meaning. Nowak v. City of Country Club Hills, 2011 IL

111838, ¶ 11. Where the statutorylanguage is clear and unambiguous,

we will apply the statute as written. Davis v. Toshiba Machine Co.,

America, 186 Ill. 2d 181, 184-85 (1999). When statutory terms are

undefined, we presume the legislature intended the terms to have their

popularly understood meaning. People v. Smith, 236 Ill. 2d 162, 167

(2010). Moreover, if a term has a settled legal meaning, the courts

will normally infer that the legislature intended to incorporate the

established meaning. Id. We review questions of statutory

construction de novo. Ries v. City of Chicago, 242 Ill. 2d 205, 216

(2011).

¶ 10 The appellate court agreed with the circuit court that the $50

State’s Attorney fee should apply to Johnson’s section 2-1401

petition. The court held that the statute referred to habeas corpus

proceedings “generically” and was meant to encompass a section 2-

1401 petition. 2012 IL App (1st) 111378, ¶ 13. The court further held

that the statute applied to all collateral proceedings since the

legislative intent was to deter frivolous filings. 2012 IL App (1st)

111378, ¶ 13.

¶ 11 We disagree with the appellate court’s interpretation. As stated

above, section 4-2002.1(a) of the Counties Code allows State’s

Attorneys to collect a fee “[f]or each day actually employed in the

hearing of a case of habeas corpus in which the people are interested.”

Since the term “habeas corpus” is not defined in the Counties Code,

we will presume the legislature intended the term to have its

popularly understood or settled legal meaning. The term “habeas

corpus,” which is Latin for “that you have the body,” refers to a “writ

employed to bring a person before a court, most frequently to ensure

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that the party’s imprisonment or detention is not illegal.” Black’s Law

Dictionary 715 (7th ed. 1999). There are numerous types of writs of

habeas corpus (e.g., habeas corpus ad deliberandum et recipiendum

(“[a] writ used to remove a person for trial from one county to the

county where the person allegedly committed the offense”); habeas

corpus ad faciendum et recipiendum (“[a] writ used in civil cases to

remove the case, and also the body of the defendant, from an inferior

court to a superior court”); habeas corpus ad prosequendum (“[a]

writ used in criminal cases to bring before a court a prisoner to be

tried on charges other than those for which the prisoner is currently

being confined”); habeas corpus ad respondendum (“[a] writ used in

civil cases to remove a person from one court’s custody into that of

another court, in which the person may then be sued”); habeas corpus

ad subjiciendum (“[a] writ directed to someone detaining another

person and commanding that the detainee be brought to court”); and

habeas corpus ad testificandum (“[a] writ used in civil and criminal

cases to bring a prisoner to court to testify”)). Id.

¶ 12 Giving the term “habeas corpus” in section 4-2002.1(a) of the

Counties Code its plain and ordinary meaning, we conclude that it

only applies to the various types of habeas corpus proceedings. We

reject the State’s contentions that the fee should apply “generically”

to all collateral proceedings, as the appellate court concluded. 2012

IL App (1st) 111378, ¶ 13. The statutory provision that allows

imposition of the $50 fee first appeared in the statute in a 1907

amendment, and has remained unchanged, despite the creation of

additional collateral proceedings such as a section 2-1401 petition and

a postconviction petition. The legislature could have amended the 1

statute to include additional collateral proceedings, but it never did.

We will not read words or meanings into a statute when the

legislature has chosen not to include them. See

Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill. 2d 141, 154-55

(1997). Therefore, any remedylies with the legislature, not the courts,

The statutory provision that preceded a section 2-1401 petition was 1

enacted in 1872 when the General Assembly abolished the writ of error

coram nobis. People v. Touhy, 397 Ill. 19, 23 (1947). The legislature

enacted the Post-Conviction Hearing Act in 1949. Ill. Rev. Stat. 1949, ch.

38, ¶¶ 826-832. Additionally, the above definitions of the various types of

writs of habeas corpus are substantially the same as they were in 1907.

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if the legislature may be so inclined. See Williams v. Manchester, 228

Ill. 2d 404, 427 (2008).

¶ 13 Further, we are not persuaded by the appellate court’s opinion in

People v. Gutierrez, 2011 IL App (1st) 093499, to which both parties

cite. In Gutierrez, the appellate court vacated the $50 State’s Attorney

fee that was assessed to the defendant following the summary

dismissal of his postconviction petition. Id. ¶ 65. The court reasoned

that since the defendant’s postconviction petition was dismissed at

the first stage, which occurred without any input from the State, the

State had not been “employed” in the hearing of the case, and

therefore was not permitted to recover the fee. Id. ¶ 65. However, the

appellate court did not first consider whether the fee should apply to

a postconviction proceeding. To the extent the appellate court in

Gutierrez assumed the fee could apply to a postconviction petition,

we disagree with that assumption. As stated above, we hold the fee

only applies to habeas corpus proceedings. Accordingly, we remand

this cause to the circuit court with directions that it vacate the $50

State’s Attorney fee assessed against Johnson and correct the

mittimus.

¶ 14 III. CONCLUSION

¶ 15 For the foregoing reasons, the judgments of the circuit and

appellate courts are reversed in part. The cause is remanded to the

circuit court with directions that it vacate the $50 State’s Attorney fee

and correct the mittimus.

¶ 16 Judgments reversed in part.

¶ 17 Cause remanded with directions.

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