Jerry Markadonatos v. Village of Woodridge

injury provide Keleher, ues was an sufficient to Christopher Appellate Keleher FHA). standing Group, to sue under the Because Law Brandon K. Lemley, Paul A. pecuniary injuries allegedly Rettberg, Querrey Harrow, those were IL, & Chicago, by for Defendant-Appellee. caused the CBHA and would be re- by damages, dressed an award of the Hol- WOOD, Before Judge, Chief and lises have established Article III POSNER, FLAUM, EASTERBROOK, suit, bring which is all FHA re- KANNE, ROVNER, WILLIAMS, quires. SYKES, TINDER, HAMILTON, Judges. Circuit

III. PER CURIAM.

The district court’s decision is vacated. The case is remanded with instructions to The court is judges divided. Five in two apply proper summary-judgment Posner, Flaum, groups (Judges and Kanne framework to personal-capac- the Hollises’ one; Judges Easterbrook and Tinder ity and next-friends claims under the rea- other) judgment vote to affirm the provision sonable-modification of the Fair Judge Sykes district court. votes to Housing Act. remand with instructions to dismiss the

case for want of standing to sue. The (Chief remaining four judges Judge Wood Judges Rovner, Williams, and Hamil ton) vote to reverse. position Because no Jerry MARKADONATOS, G. individu- majority, commands a judgment ally and on behalf of all others simi- district court is affirmed our divided larly situated, Plaintiff-Appellant, Co., court. Durant v. Essex (7 Wall.) 107, 112, 19 L.Ed. 154 WOODRIDGE, VILLAGE OF POSNER, Judge, joined Circuit Defendant-Appellee. Judges Circuit FLAUM and KANNE No. 12-2619. concurring in the judgment.

United States Court of Appeals, was arrested in

Seventh Circuit. Illinois, of Woodridge, shoplifting, A Illinois Class misdemeanor. 720 ILCS Argued May 2013. Upon arriving police at the sta- 5/16-25. Reargued En Banc June 2014. tion he was told that an administrative fee July 21, required upon completion Decided 2014. $30.00 arresf/booking procedure. custodial bond, paid spot,

He on the posted $30 released, and-was forthwith without being jailed. pleaded guilty He later to the shoplifting charge and was to un- ordered Burnham, James Meghan Sweeney, dergo supervision months of court Day, IL, Leitch, (on Jones Chicago, Bryan totaling fees and top fines $785 DC, Day, Washington, Jones Peter S. Lu- of the fee that he had at the bin, Lubin, P.C., station). Ditommaso Oakbrook He claims to have com- Terrace, IL, Shedden, Park, James pleted period Deer of supervision successful- IL, for Plaintiff-Appellant. ly, and that shoplifting result arrests, infrequently frequently or dismissed, how adjudica- “without

charge idea, and to be have no Woodridge to 730 ILCS we pursuant guilt,” tion of 5/5—6— (the 3.1(f)- Village of amount of mon- pay to even a small The defendant forced plaintiff that the ob- may present arrested Woodridge) ey being falsely denies for dismissal, since the com- but such a But the tained issues. constitutional serious pleadings, the with on was dismissed plaint any of those to decide court doesn’t have evidence, as- we’ll based on findings no indeed, them. it should not reach issues— is cor- allegation plaintiffs the sume that a critical difference between There is it is or is turns on whether Nothing rect. (if and a fee that’s posting fee for bail however, correct, we’ll see. as not it) To being for arrested. right word for suit, (a but dis- class action The suit bail, having been released on whether he judge before by the district missed not, that the falsely is a benefit or class) certify a chal- whether decided people on the Woodridge confers Village constitutionality of subsection lenges the peo- arrest. Most whom its officers 5-l-12(A) (captioned of section 5-1-12 spend arrested do not want ple who are Fees”) Woodridge of the “Administrative is true whether or jail, time in and this imposes a The subsection Village Code. arrest, grounds for not there are solid posting bail or “booking fee” of “when $30 plaintiff. our in the case of as there were criminal, civil or any legal process, on bond a bail bond the cost of preferred He including warrant.” any custodial arrest ($150, amount percent of the which was “on a Presumably, posting” “when means released, for him to be required of bail The subsection is posts.” who A had been for a Class because his arrest drafted; fig- poor drafting its will poorly 5/16-25(a)(l), misdemeanor; 720 ILCS see Although the ordi- analysis. in our ure 528(c)). (f)(1); Sup.Ct. Ill. R. repealed repeal and the nance has been by was borne The cost of bond request declarato- moots county or ultimately by the court and so relief, it occurred after ry injunctive and (Illinois permit not use of the state. does nullify his and so does he $30 bondsmen.) Village But the commercial damages. claim for well, expense bore some doubtless of this appealed panel The proper and making that the bond was sure by of the suit affirmed the dismissal court could and therefore (7th Cir.2014). 739 F.3d 984 split vote. County trial. pending should be released Eastern District Judge of the Stadtmueller charge authorized to a fee sheriffs are Wisconsin, sitting by designation, wrote 5/4-5001, services, see 55 ILCS bond Judge Sykes wrote majority opinion. (in County which Wood- DuPage in fact Hamilton concurring opinion located) study after a set its ridge is cost plaintiff peti- dissenting opinion. DuPage County Code bond fee $30. banc, peti- and his rehearing tioned for en § 20-130. granted. tion was study County’s cost found assumed that Judge Hamilton’s dissent arrested, cost, to the Sheriffs per person requires imposition of the the ordinance providing bond was Department $44.59. arrested, anyone who’s charge $30 DuPage County Cost Service custody or not he’s released whether Sheriff 2002). the basis Analysis (Aug. On posts because he bail immediately either raised its fee for study County (that is, money pocket out of his own pays $25, service, been (borrows which had released) $30. posts a bond to be Woodridge, when surprise thus no money). There are false It’s required bail 7(f) arrest is made its officers rather charge § under is an 110— County police, than Sheriffs administrative fee and not a prose- cost of charges the same fee. There is no conten cution imposed under [Illinois law] provided by tion that for the same service upon (citations the convicted defendant” excessive; a fee of omitted). Payton And in v. County of County study suggests anything if that the Carroll, (7th 845, 473 F.3d Cir.2007), 852 Village’s Any fee doesn’t cover the costs. we read that “the sheriffs have a legiti- way constitutionality of a fee for a mate interest in recouping some of the government depend service does not on costs of administering system. the bail If proof of an equality exact between the cost they had to offer another separate set of of the service and the size of the fee. hearings only devoted to these small ad- States, Massachusetts v. United 435 U.S. fees, they ministrative might opt out of the 444, 464-67, 1153, 55 L.Ed.2d 403 bail bond altogether step that —a (1978); Raemisch, Mueller v. 740 F.3d permit Illinois would them to Every take. (7th 1128, Cir.2014); 1134 Oneida Tribe of detainee would then need to wait for the Hobart, Indians Wisconsin v. clerk, office hours of the county rather (7th 837, Cir.2013); 732 F.3d 841-42 Em than the subset of detainees who now elect press Corp. Casino Joliet v. Balmoral option. We plaintiffs conclude that Club, Inc., 722, Racing 651 F.3d have not stated a claim deprivation for a (7th Cir.2011) (en banc); Broussard v. process.” due Orleans, (5th Parish 318 F.3d Cir.2003) (“even though the connection be Supreme The Court many years held tween the charged bail fees and the admin Dulles, ago, in Kent v. istration of system may the bail-bond 1113, 2 (1958), S.Ct. that the tenuous, somewhat ... arrestees have right to travel abroad a “liberty” pro- failed present evidence sufficient tected the Constitution’s due process imposed show that the fees are arbitrary”); you clauses. Nevertheless must a for Gorman, compare State v. 40 Minn. 41 passport to be allowed to travel abroad. N.W. Similarly, you have a right not to be ar- If, then, Woodridge’s imposes ordinance rested if there probable is no cause to charge person when the ar- $30 arrest you; you but if have the misfortune bond,” “post[s] rested bail charge or wrongfully to be (though ar- a lawful fee government for a service and rest of the in this case was not plaintiffs collapses. case Schilb v. wrongful), you post you still must bail if Kuebel, 357, 370-71, being jailed want to avoid pending judi- a “ (1971), § states that 110- cial determination whether there was 7 [of Article 110 of the Illinois Code of probable you. cause to arrest right The Criminal Procedure of 1963] authorizes re- bail, abroad, like right to travel is a tention of the 1% as ‘bail bond costs.’ This right valuable person which the seek- is what that description implies, namely, it, innocent, guilty whether must an administrative imposed upon cost all pay. Payton That is what Schilb and hold. those, guilty alike, and innocent who seek part fee is a of that cost—a small $30 § the benefit of 110-7. This conclusion is part. supported by presence of the long- plaintiffs counsel tells us that the against established Illinois rule the imposi- “booking provision fee” is unique tion of of prosecution upon $30 costs an acquit- discharged defendant, among provisions ted or criminal of the ordinance be- by the Illinois court’s own imposes determination cause it alone a may fee for what may charge government whether mistakenly believed conduct

be innocent (the plaintiff admits $30 instances the a “fee” illegal. He to be by police fine) merely rather than a impounded dog charge is of [an] fee for “release arrested, if, turn may things even dog being or cat But of course or cat.” control, As is out, falsely and later be arrested. he has been escape the owner’s dis panel fault on the owner’s Hamilton’s apparent without impounded, stolen, sent, interpretation may have been adopting The animal part. plunge from its home because the court escaped have of the ordinance would win- had left a door or involving pro both swamp careless workman into a of issues litter box lured from its ajar, process, dow or been cedural and substantive with Woodridge police officer rogue as well. We are maybe equal protection cases, impounding in such catnip. Even adjured by Supreme countless Court deci on the owner confers a benefit the animal statutory interpretations sions to avoid despite his lack of pay he must for which issues, and that raise serious constitutional Village’s “tow- fault. Or consider $250 if just interpretations adopted that recover pay owner must ing fee”: the render a statute unconstitutional would rea- good if with even he believes car In analysis. further the words without in towed error from son that the car was Holmes, that as “the rule is settled Justice in the It is the same legal parking spot. of a possible interpretations two between person case if the arrested false-arrest statute, by which it would be uncon one of out. wants to be bailed valid, plain the other our stitutional and critical which will save the duty adopt leads to the issue is to This discussion scope of the presented by appeal: avoid a serious doubt the rule Act. Even to Holden, It is unclear. “booking provision. fee” Blodgett v. 275 U.S. is the same.” (1927) if interpret 105, it to mean that parties 142, 148, 72 L.Ed. 206 48 S.Ct. arrested, you or you post added); are bail either (concurring opinion) (emphasis form of respect Benson, in of some other bond v. see also Crowell U.S. “legal you pay must process,” (1932); 285, $30. 76 L.Ed. 598 Ash plausible interpreta- But there is another Authority, 297 Valley v. Tennessee wander says: “when tion. Remember what 347-48, 466, 288, 80 L.Ed. U.S. any legal process, on posting bail or bond (1936) (Brandeis, J., concurring); Rust criminal, custodial arrest civil or Sullivan, 173, 190-91, 111 S.Ct. 500 U.S. warrant,” you must including (1991); 1759, 114 L.Ed.2d 233 Matthew C. charge. This can be read mean of Public Action: Stephenson, “The Price you pay only posting when bail or must Doctrine and the Judicial Constitutional any legal process, in with bond connection Enactment Manipulation Legislative pursuant arrest to a including custodial 2, Costs,” This 118 Yale L.J. is, The “custodial arrest” clause warrant. corollary “constitutional avoidance” (for redundant cus- interpretation, on this original doctrine that its doctrine —a legal process), a form of but todial arrest is every reasonable con required form “that statutes, redundancy is common to, in order to struction must be resorted ordinances; a village so in probably more unconstitutionality,” save statute may not have the resources village California, Hooper v. assuring highly professional legal drafts- (1895) (emphasis 39 L.Ed. 297 S.Ct. manship. (3 added); Bedford, Parsons v. see also (1830) Pet.) 448-49, 7 L.Ed. 732 accept plaintiffs interpretation If we J.) criticized. See Hen- (Story, been we create a serious constitutional issue— —has (1967); ry Friendly, J. Benchmarks 211-12 ing bail or bond on any legal process,” Schauer, Frederick “Ashwander Revisit- including the legal process that consists of ed,” 1995 Sup.Ct. Rev. 74. But it en- a custodial pursuant arrest to a warrant. dures, and us. binds support Another for this analysis is the freedom, There interpretive are limits to earlier reference to the service $30 fee and thus to the reach of the constitutional charged by DuPage County for arranging interpretation avoidance doctrine. The bail for an person. arrested There is no that avoids having grapple with difficult suggestion that County’s fee is for the constitutional issues must be reasonable to “service” of arresting. The fact that the be a adoption. serious candidate for But Village of Woodridge charges the identical those limits are not exceeded an inter- fee is evidence that County’s like the pretation that confines the booking fee it’s a fee for arranging for a bail bond— to cases in which a which say is not to Woodridge Woodridge seeks bail or bond. It’s like may treating not be arrest, it as a fee for interpreting phrase “my enjoys cat separate issue, but that is a up taken later. jumping trampolines on and beds” to mean The suggested interpretation does less enjoys jumping she things, both provision’s violence to the “plain meaning” opposed enjoying to her jumping only on than Supreme interpretation Court’s and, trampolines separately, enjoys beds a statute which provided that “the Director jumping reasons unrelated to on them. of Intelligence Central may, in his discre- interpretation, The latter which corre- tion, terminate the employment any offi- sponds interpretation to the urged by the employee cer or Agency whenever case, plaintiff actually in this is plausi- less he shall deem such termination necessary ble than interpretation, the former the one in advisable the interests the United that spares us from having to resolve seri- 403(c) (1982) (now § States.” 50 U.S.C. ous constitutional issues. The 3036(e)(1)). § codified at 50 U.S.C. Al- lawyer emphasizes that the ordinance though refunds, the Administrative provision makes no Procedure Act for but there judicial bars “agency is no reason for a review of refund when a valuable action service, bail, such assisting agency in is committed to obtaining [that] discretion law,” 701(a)(2), is rendered. § 5 Supreme U.S.C. Court held that termination of employment Granted, provision— the title of the by the Director of Intelligence Central arrest; “booking points to an fee”— challenged could be if challenge person is if booked even he does based on the Constitution. interpre- This post not glance bail or bond. But a at the tation was inconsistent with the text of the provisions other of the ordinance reveals employment in conjunction statute read in titling. carelessness For example, the APA, with the but the Court it adopted “to provision imposing “towing a fee” is not question’ avoid the ‘serious constitutional imposed every time a vehicle is towed that would arise if a federal statute were Village, if even the vehicle was towed judicial deny any construed to forum for a arrested; because its driver or owner was colorable constitutional claim.” it Webster v. imposed only is “on an any arrestee time Doe, vehicle release form required.” is (1988) added). opening For (emphasis sentence of the ordinance states result, imposes that it a similar case following “fees for the ac- and see Johnson v. Robison, 361, 365-67, tivities and purposes,” activity and the for which the booking imposed fee is is “post- 39 L.Ed.2d repealed statute applied to be invoke the Granted, Village does not states and It would disincentivize ordinance avoidance. constitutional doctrine their enact- however, says repealing in its close, municipalities when from comes Book- that “the ‘Arrest to an inference rehearing repeal ments lest lead brief by the Du- had been unconsti- promulgated legislation Guidelines’ previous that for mis- County provides Court incen- Page creating such We avoid tutional. can arrestee and arrests the demeanor Fed.R.Evid. settings. in tives other at the on bond ‘be released should measures), example, remedial (prior ” words, Village ties In station.’ other company’s of a admitting forbids evidence The arrested the bond. the fee to prove redesigning product AJ1the gets bond. pays $30 It would defective. design was previous addition, to invoke the doc- in say had Woodridge rule that had perverse to be have been clearly, would trine ordinance, the constitu- repealed purpose In event is for the bond. it, save principle might tional avoidance avoidance doctrine of the constitutional repealed the Vil- it has been but because minimize the but to party, not to benefit damages. past lage should liable legis- declares on which a court occasions of consti- earlier, noted the doctrine As That unconstitutional. lative enactment minimize functions to tutional avoidance gratuitous this would be declaration legislatures friction between courts no harm suffered case because legisla- municipal (including state and constitutional violation. alleged tures). to hold that a asks us county standard paid what He committing Illinois is government local charged by government local bond fee constitutional of his grave violations jail. spent no time the bond and got (if conceivably might rights rights that — about? complaining he What’s way back to all implausibly) be traced in a sense it’s too late save course Of should not imputation Magna Carta. That by invoking the doctrine the ordinance govern- a state against lightly be leveled avoidance; re- it’s been constitutional as the modest a one entity, even as ment know, there for all we are But pealed. A Woodridge, saving Illinois. of Village elsewhere. Remember ordinances similar court; we to our construction is available charges a County bond DuPage $30 that embrace it. should (in fee, section of its the same ordi- than this court this nance) court other fee nonrefundable —so No it makes the “booking Woodridge’s charged interpreted that fee has if had been case plaintiff the meaning provi- he would acquitted, later been provision. and had fee” Isn’t it get to it back. Illinois law. right had no course issue of have sion is of fee is clear that a bond important certify question to make the we could But whether not an arrest fee? of Supreme the Court meaning its to of course, way, that neither by the Illinois—a limit reason not to the There is a further could whether we urges if we party to doctrine enact- —and avoidance constitutional Begin with should, very doubtful. are only reason the in force. The still ments only accepts court The Illinois “could.” injunction asking for an isn’t of State Law Questions “Certification ordinance, the Village repealed Courts,” Sup.Ct. Ill. Certain Federal (which from plain- rendering that relief thus may not include law” R. 20-and “state moot. requested) To originally tiff had certify authority to local ordinances. Our of the constitutional application preclude Supreme Court Illinois questions to the sought it was whenever avoidance doctrine similarly “questions limited of state is not This to condone—indeed it is to True, meaning law.” 7th Cir. R. 52. raise questions serious concerning—the City local ordinances was at issue in conduct of the Woodridge police. If they Inc., StubHub!, Chicago v. charging F.3d 363 were fee persons (7th Cir.2010), we ques- where certified a whom they arrested who did not attempt tion accepted court. The court post bail or (maybe persons bond who certification, certified, question but the and couldn’t or spare wouldn’t money, or court, answered mu- was “whether were being quickly confident of released nicipalities may require jail electronic interme- because their arrest had been a to collect and remit palpable mistake), diaries amusement those persons might is, taxes on resold tickets” —that whether well remedies, have state or federal or practice permitted by this Illinois Being both. arrested is not a “service” to state law. arrested! But this ease did not want to jail. risk time in certify Whether we could to the Su posted He bond and was released. He preme question Court of Illinois a about paid for and received a valuable service. ordinance, not, meaning of a local No constitutional right of his was violated. we shouldn’t do so in this case. The case doesn’t our meet standards for certifica It could be argued even if the ordi- tion, as out in laid State Farm Mutual nance does not allow imposition of an Pate, Automobile Ins. fee, Co. 275 F.3d arrest as distinct get- from a fee for a (7th Cir.2001), where we said that out-of-jail-card, a person prove who can “ appropriate ‘certification is when the case Woodridge has or had a public concern, concerns a matter of vital policy of charging anyone the fee to who is likely where the issue will recur in other arrested is entitled to damages from the cases, where question resolution of the to Village. But Markadonatos is challenging be certified is ordinance, outcome determinative of not a policy that exists case, it; and where the supreme apart state suing from for he is exclusively as court yet has to have an opportunity to persons member of the class of to whom path illuminate a clear on the issue.’ We the ordinance has been applied, and the also consider whether the issue is of inter ordinance is constitutional if it authorizes a supreme est to the state court in its devel posting Furthermore, bond. law, opment of state and the interest of Village, even if the police, have and litigants future in the clarification of state policy enforce an unlawful of imposing the (internal omitted). law” citations The fact every person, fee on bond or no that Woodridge’s bond, ordinance has been re Markadonatos was not victim of pealed (along with a similar ordinance of policy. such a He yet committed theft another municipality, Illinois Naperville, avoided for (plus the cost of the $30 $150 bond, see Roehl v. City Naperville, 857 as distinct from Village’s help the in of (N.D.Ill.2012)) F.Supp.2d bond) getting is him the having spend any to against decisive certification. jail. time in got He a reasonable deal. If the or the have acted unlaw- circumstances, In these given the deci- fully persons, they toward other are the Supreme sions of the Court of the United persons standing who have to sue. cited, States that proper we’ve our course interpret clear: it is to “booking Giving the fee” interpretation the ordinance an provision of the ordinance being as limited that it renders constitutional leaves no ba- suit; and, to bail and bond cases. for incidentally, by sis the re- or without probable with being arrested leaves obstacle the constitutional moving the could not make cause, plaintiff interpret to free judiciary the state court, a suit in federal objection a have basis future lawsuit. We in ordinance arrested with probable he was local because give a state statute authority to no Judge an echo of cause. There was interpretation; a definitive ordinance panel Judge in Sykes’s concern Hamilton’s judiciary. of state prerogative is the he said constitution- dissent when pres- us properly before a case But when in law, discerned the ordinance al flaw that he of state interpretation of an issue ents pay- make the fee law, to correct: was “easy legislative law or it is case whether crime, part of a of conviction as upon able we can foresee as best duty is to our authorized law after court costs would the the state courts interpretation the criminal protections of procedural full doubtless courts would The Illinois adopt. at 993. system.” 739 F.3d justice provision pertinent interpret to prefer its constitu- preserve of ordinance proce- received those full adopt interpre- tionality rather than to paying the but after protections dural it might render unconstitution- tation that it have would what difference fee. Yet judiciary’s the state preserve But we al. paid it after rather to him had he made give not the ordi- give opportunity ar- receiving them? He was than before construction, it wishes. saving nance discharged January rested on By April on 2012. supervision on the dismissed properly case was have, he probably earlier would dis- then and ground for the pleadings, because law, conception of law- Judge Hamilton’s of under question to a was the answer missal lawfully required procedure, ful been provi- meaning of relevant namely the Suppose he instead pay the fee. had A on premised suit of the ordinance. sion Then, at a January 2012. on Woodridge po- theory that the the distinct percent per of 10 generous discount rate when a constitutional violation lice commit annum, present-value loss incurred he not (unlawfully, because they collect a fee ($30.00 $27.27) by having $2.73 as we inter- by the ordinance authorized — non curat advance. De minimis lex. it) not result an arrest that does pret succeed, might bail or bond posting if the at least Judge Sykes’s approach, it is not this but, emphasized, as we have disregarded, present value is loss $2.73 ar- of other the situation case. Whatever grounds case on would resolve re- Markadonatos persons, rested prej- Mmseif dismissal standing, requiring without ser- fee for a valuable a reasonable ceived approach different slightly udice. The damages gripe? What is his vice. What implies dismissal opinion taken in this relief possible has he suffered? What court): (as in the district the merits him? grant a court could constitutional, and, because ordinance came bond and thus plaintiff posted alternative closing A about the note was interpreted, so within the ordinance urged in for dismissal ground right of constitutional and no violated lack concurring panel opinion: Sykes’s infringed. injury of an of absence because III of the by the court. Article remediable EASTERBROOK, joined Judge, Circuit standing a course makes Constitution TINDER, concurring in Judge Circuit in a fed- maintaining a suit to prerequisite judgment. that Sykes pointed out Judge eral court. Judge Sykes that Markado- was, agree I with as it objection to the ordinance if the applica- to contest the standing fee for natos lacks be, imposed that it a to seemed

553 side has persons tion of the ordinance to arrested asked us to read the ordinance as to that probable only cause and contend applicable without to bail or to ensure that the provide hearings. needed judiciary give state has room to the ordi- may a consti person to whom statute “[A] limiting nance a construction. Instead tutionally applied may challenge be they agree that the imposes ordinance a ground may on the it that statute justiciable fee on all arrests. The $30 conceivably applied unconstitutionally subject is whether the Constitution allows in to others situations not before the application ordinance’s to someone ar- Ferber, 747, v. Court.” New York 458 U.S. probable rested on cause. And to that 767, 3348, 1113 102 S.Ct. 73 L.Ed.2d question yes. the answer is (1982). States, v. See also Sabri United justifies Probable cause substantial bur- 600, 608-10, 1941, 541 124 158 U.S. S.Ct. dens. Someone arrested on probable (2004). join L.Ed.2d 891 But I do not her stationhouse, cause can be to the taken proposes which to dismiss the en opinion, booked, bail, pending held even if the justiciable tire suit for want of a controver offense punishable only by is a fine. See sy, because Markadonatos has Vista, 318, Lago Atwater v. 532 121 U.S. application contest the ordinance’s to a (2001). 1536, S.Ct. A cause, person probable with as he custody taken into can be held as (and Judge was. He maintains Hamilton long as 48 hours before seeing magis- concludes) that fee is constitutionally trate. McLaughlin, See Riverside v. 500 obnoxious when sup even the arrest 44, 1661, U.S. 114 S.Ct. ported by probable cause and followed (1991). cause, Probable in reflected justicia- a conviction. That contention is indictment, grand jury’s justifies holding a ble. custody in pending defendant trial. See Judge proposes Posner duck States, v. Costello United 350 U.S. question by holding that the fee is attribut- (1956); S.Ct. 100 L.Ed. 397 Gerstein able, arrest, person’s not to the to a but Pugh, v. 95 S.Ct. agree approach release on bail. I with his (1975). L.Ed.2d Probable cause also that, saying to the extent of if a state court justify can the seizure of the suspect’s by reasonably giving could save a statute forfeiture, pending step may assets construction, particular a federal court it impossible suspect make for the to hire ought not take the matter out of the state’s preferred lawyer might lead to a by peremptorily declaring hands the stat- conviction, when better defense could ute unconstitutional “on its face”—which is produced acquittal. Kaley have an See say, every possible application. in But — States, -, United U.S. construing, we cannot do the after the 1090, 188L.Ed.2d 46 — States, fashion of Bond v. United -, (2014), 189 L.Ed.2d vastly All of these losses exceed a $30 recently indulged a reading which strained justifies probable fee. If cause months of a federal statute order to avoid a jail lawyer, and an inferior what sense problem. Only constitutional a state court say could it make to that a fee is $30 give can limiting authoritative construc- True, constitutionally excessive? someone tion to a state statute. probable get arrested on cause does- not if prevails back he at trial —but independent

If I had to make an assess- of time get neither does he back the value meaning, ment of the ordinance’s I would jail the value of the difference agree spent Posner. But our with task parties’ lawyer to resolve the and the aver- dispute. top-notch Neither between a the banner of “substantive under the Criminal comes under provided age quality say, to process.” It suffice due Act. won’t Justice does, proba- that Hamilton’s dissent Supreme Court has concluded that justify enough permanent isn’t to ble cause process applicable substantive due is justify It deprivations property. does a government deprives person when the liberty; why property is deprivations of right. Washington a “fundamental” See v. more sacrosanct? 719-23, 702, Glucksberg, 521 U.S. applies The Due Process Clause to both Glucksberg 138 L.Ed.2d 772 there is a liberty property. When suicide is not a funda- held that assisted distinction, property the lesser receives right. mental Markadonatos does not con- trial, The burden at a criminal protection. important is more tend that the loss $30 issue, liberty “beyond is at a where is power than the to choose the time and doubt”; the burden at a civil reasonable any of the other manner of one’s death —or contrast, involving property, by trial is rights Supreme asserted that Court In a “preponderance evidence.” to He has held not be “fundamental.” criminal trial that can end a sentence of argues instead that there is a “fundamen- imprisonment, the defendant is entitled to right” deprived anything tal not to be if public expense counsel at he cannot af- “arbitrarily,” and he maintains that trial, contrast, lawyer; in a civil ford “arbitrary.” fee is $30 lawyer a defendant who cannot afford a application That is not an of the Glucks- represent must himself. The list could be framework; to berg elides the need find extended, point but the has been made. right.” a “fundamental If Markadonatos Liberty greater protection. receives the correct, were a court would never ask establishing probable the cases So whether the asserted interest is “funda- to deprive cause suffices liber- go straight mental.” Instead it would ty pending for months trial show that the question whether the state has acted problem there can’t with a fee. “arbitrarily,” say, which is to would decide than that. I not think More do every Glucksberg claim on the merits. anything helpful Due Process Clause has however, requires, step: an initial ascer- claim say pres- about the Markadonatos taining whether the interest at stake is requires pro- ents. The Constitution “fundamental.” No decision of the Su- cess, yet panel explains for reasons the preme Court so much as hints that a small (and reiterates) Judge Sykes Markadona- fee is “fundamental interest.” a hearing unavailing. tos’s demand for Maintaining the difference between to a might hearing He have been entitled vital, “fundamental” and other interests is (or process, some other informal see Goss collapse lest we the distinction between Lopez, v. U.S. equal protec- substantive due (1975)) adequate separate equal-protection question tion. The probable cause from persons with possible imagine whether it is a rational without, persons arrested but he has never See, e.g., Usery basis for the rule. procedure. asked for that sort of He Co., Turner Mining Elkhom instead, maintains, im- that the ordinance (1976) (de- S.Ct. arrest, every poses making proba- a fee on scribing the rational-basis standard and ble cause irrelevant. Yet he concedes applying imposed it to a statute that costs he was arrested. On his own view of the $30). ordinance, exceeding far Markadonatos does nothing there is to hold a hear- principal argument about. Instead his not contend that the ordinance lacks may followed that a rational basis. Arrests be means such as Markadona- bail, charge, release on release without get proba- tos does not the back. If $400 Any incarceration. of these costs the Vil- fee, ble cause for supports arrest a $400 lage legisla- at least so a rational $30 why not a fee? —or $30 ture could conclude. Both release without village Or consider the fee a imposes to charge and release on bail entail lots of recover a towed car. These fees often are officers, paperwork and the time of range No one wants his $100. lawyers; if judges not incarceration is any car towed more than he wants to be fed, costly prisoners because must su- may arrested. And cars be towed without pervised, provided with medical care. cause, good just people may be Requiring people reimburse others for good without cause. It likely seems more they impose proper. costs on them is village that a impose steep towing would (Recall that Markadonatos was arrested on fee as a generating means of revenue cause, probable which means that his own (which would increase the incentive to tow misconduct caused whatever costs the Vil- cars) properly parked even than that incurred.) lage impose would a modest arrest fee. Yet at Markadonatos has invoked substantive argument oral counsel for Markadonatos hope in the that we will de- acknowledged towing that a fee is valid. than a mand more rational basis from the What he could not explain why Village. oblige. We should not Glucks- Constitution allows fee after a car is $100 berg separates equal pro- the domains of taken pound to the but no fee at all after a process; tection and substantive due this person is taken to the stationhouse. controversy equal protection is on the side. I conclude that Markadonatos has stand- If there something wrong with fee of ing to challenge the collection of a fee from arrested, being for what are we to $30 cause, a person probable arrested on be- make of the for filing fee suit $400 category cause if that’s he is he federal district court? If the arrest was gets argu- wins he back. But his $30 cause, probable without the victim is enti- ment fails on the merits. I therefore con- damages. tled to A prevailing party will judgment. cur in the costs, fee, including filing recover from defendant, if but the court holds that SYKES, dissenting. Judge, Circuit supported by probable the arrest was ground this has shifted under case cause, suspect then the is out not since granted rehearing we en banc. being arrested but also the $30 $400 (cid:127) pro- Three members of the court now trying to show that he should not have pose by invoking to affirm the doctrine been It say arrested. would be absurd to avoidance, option of constitutional fee violates the Constitution $30 ante, parties. raised See but that the fee does not. And an $400 (Posner, J., concurring in 548-52 assertion that a suspect incurs the $400 judgment). voluntarily by filing suit is hollow: (cid:127) Four members of the court would re controversy begins not with the suit but merits, verse and remand on the arrést, involuntary with the which is though analysis on a different than perspective of Markadonatos or originally argued by suspect. only way other to contest (or adopted by panel dissent. Com the arrest for that matter the arrest fee) (Hamilton, J., pare post, at dis filing is to fee in federal senting), court. Probable cause for the arrest with Markadonatos v. Vil presented to originally case was 994- As the Woodridge, 739 F.3d lage of Cir.2014) (Hamilton, J., vaguely raised a (7th panel, plaintiff dis the the 1000 9-28, challenge Br. at Appellant’s due-process conceptualized senting), brief). 22 33-40, (panel No. fee the Woodridge’s booking ECF fee—a $30 (cid:127) everyone is ar- Village review has rein- who en banc collects my part, For jail. about the Never mind my doubts and booked at its

forced earlier rested I vacate standing. just describing would this fee hazy briefing, to dis- instructions remand with alarm and enough trigger indignation. is jurisdiction. lack of charge miss for a fee municipality really aCan (cid:127) and Tinder sub- at its being Easterbrook arrested and booked Judges simply for plain- me that the

stantially agree with jail? Really? they con- although standing, tiff lacks con not, panel majority Maybe but of the case aspect that a narrow clude on standing lacks plaintiff cluded that the ante, at 552-53 justiciable. See is key aspect of his due- “substantive” (Easterbrook, J., concurring that it’s irra argument process claim—his they disagree But also judgment). are fee on those impose tional to who use of the consti- Judge Posner’s with he was wrongly arrested —because lawful doctrine and instead tutional-avoidance cause. Mar ly probable on See remain- justiciable hold would kadonatos, (majority 739 F.3d at 988-89 due-process not viable as der is J., concurring). (Sykes, op.); id. at it, claim, argued plaintiff has And I’m now con my That view. remains claim, only equal-protection as an but lacks on vinced that the id. at fails on the See which merits. aspect of his claim as “procedural” 553-55. well. short, agree cannot the en banc court In booking is listed in the Wood- raises, the case whether questions on what as a line item an ridge Code to raise right person unremarkable schedule of ad- otherwise them, they properly have whether been entirety, In the ordi- ministrative fees. its framework what doctrinal preserved, or nance reads as follows: sug- Our fractured applies. nondecision poor this case was a vehicle gests posting bail or bond fee: When Booking jail constitutionality of resolving the criminal, any legal process, civil or booking fee.1 including arrest warrant. custodial

[*] # ^[*] $30.00 Co., (7 Wall.) nonprece- rant v. 74 U.S. per Essex 1. curiam affirmance is Our by disposition ("If our (1868) necessitated judges default divid- dential inability L.Ed. 154 are 19 judgment, majority to muster a had, ed, order cannot be for no reversal equally by an divided to an affirmance akin judgment court can be made. The of the Kent, See, e.g., Co. Warner-Lambert court. therefore, is, below, It stands in full force. S.Ct. 552 U.S. (2008); 128 170 indeed, practice in such case to settled Biggers, Neil v. see also affirmance; this is judgment enter a but (1972) 191-92, S.Ct. L.Ed.2d expressing the most convenient mode equally divided court (explaining that an finally disposed of in fact the cause is judgment in force the lower court's leaves below, conformity with the action court appellant petitioner who "it is the because proceed can its and that that court enforce court's to overturn a lower the Court asks decree,”); judgment. legal would be same effect id. at see also error, dis- appeal, if the or writ of were equally (explaining that an affirmance effect); missed.”). precedential court has no divided Du- Ill., (2013), § to Woodridge Municipal 5-1-12A Ordinance 5-1- WoodRidge, Code 13, 2014, 12(A) of Mar. repealed by Ordinance being provided without the constitu- language The terse Ord. No.2014-11. tionally guaranteed of law.” its in a sched given placement not unusual The district court dismissed the case on promulgated ule of administrative fees the pleadings. municipality. a small In appeal, his initial brief on Markado- Jerry Markadonatos was arrested for procedural natos conflated the and sub- shoplifting Woodridge and taken to the aspects due-process stantive of his claim.

jail. During booking process, the he was argued procedurally He that the fee is fee, given booking written notice Village unconstitutional because the col- immediately, bonding and he it before during booking process lects it without jail. charged out of He was thereafter predeprivation hearing to test the validi- County DuPage Circuit Court with retail ty of the arrest or at least a postdepriva- theft, a state misdemeanor offense. He process by tion which those who are pleaded guilty charged, as found was arrested, wrongfully charged, never or are guilty, and was sentenced to a 12-month guilty may found not obtain refund. This supervision term of and ordered to way of framing procedural challenge justice various court costs and criminal requires prior conclusion about the sub- fees. terms, By stance of the ordinance. its notes, Judge As parties Posner dis- ordinance does not make the fee contin- pute the legal significance of the term of gent prose- on a valid arrest or successful supervision, apparently imposed which was argument cution. To resolve about pretrial diversionary under a program inadequate process, the court would first permits the court to dismiss the case upon booking have to conclude that the fee is completion the defendant’s successful substantively applied unconstitutional as Comp. III. supervision. See 730 Stats. 5/5- arrested, people wrongfully to who are 5/5-6-3.1(f). 1(c),5/5-6-3.1(e), The dis- 6— charged, never found guilty. are pute is immaterial. What matters here is in any But Markadonatos isn’t of those proba- Markadonatos was arrested on groups. lawfully He concedes that he was cause, theft, charged ble with retail cause, probable arrested on was in fact pleaded guilty, super- and served a term of theft, charged pleaded with retail and Everyone vision for that crime. agrees guilty charged. these facts. majority concluded that panel So supervision, While he was still on court standing challenge Markadonatos lacked 42 Village Markadonatos sued the under the fee as a violation of substantive due § accusing violating U.S.C. it of analyze proceeded pro- and right procedural and substantive due due-process cedural claim without the em- process by collecting booking fee with- premise, rejecting bedded substantive hearing out a at which he could contest it. balancing under the test of Mathews v. sought range He the full of remedies for Eldridge, U.S. 96 S.Ct. the claimed constitutional violation: a dec- Markadonatos, L.Ed.2d See booking-fee laration that the ordinance is 988-91; (Sykes, at id. at 992-93 739 F.3d unconstitutional, injunction enjoining an J., concurring). Judge Hamilton dissent- it, Woodridge enforcing and dam- ed, “in construing booking fee as sub- ages. brought He the suit on behalf of (Hamil- fine,” a criminal at 993 himself and a class of who stance id. “[a]ll individuals ton, J., cannot deprived property pursuant dissenting), were of their which of course NLRB, 463 Corp. DeBartolo v. adjudication of ward J. without imposed 2926, 77 L.Ed.2d at 994-99. guilt, id. Miller, (1983); Youakim new coun- then obtained Markadonatos 231, 234-36, rehearing en banc. sought sel Vermeule, (1976); Saving Adrian see also ordered the rehearing and granted court Constructions, L.J.1945, 15 GEO. 1948-49 (among briefs on new parties submit (1997) (discussing procedural avoidance standing and things) question other cases). collecting approach But that Judge raised distinction the fee/fine the reasons open to us here for is not round of In this new dissent. Hamilton’s in his explains length at Judge Hamilton on the Woodridge pressed harder briefing, (Hamilton, J., dissent, at 565-66 post, see parties agreed problem, and the also Easterbrook dissenting), fee, not a indeed a booking fee is ante, concurrence, in his see mentions fine. (Easterbrook, J., concurring Meanwhile, quietly repealed point on this agree I with them judgment). to tell booking fee. No one bothered nothing to add. and have develop- important this the court about however, that the reiterating, It’s worth ment, claim for dam- because the perhaps A injunctive relief is moot. “sav- claim for moots the repeal remains. But the ages is a remedial device to ing” construction injunctive claim for relief. unconstitutional, striking avoid a statute as twist, Now, three mem- yet in another challenged ordinance is no but here the to resolve the propose of the court bers A limiting the books. construc- longer on ground a new remaining live claim on sole and applied retrospectively can’t tion be parties. Invoking the never raised reject a claim for dam- used as a basis to avoidance, my doctrine of constitutional here, where, par- not as ages least —at as a fee colleagues interpret the ordinance uniformly agree that the statute was ties ante, at 548-52 bonding jail. out of See applied broadly. and more interpreted (Posner, J., judgment). concurring (now repealed) Having thus “saved” I’ve concluded that closer review construction, On narrowing

ordinance via standing lacks on both the Markadonatos Village committed they conclude that the aspects of his procedural substantive and (because violation Marka- no constitutional is, course, a claim. This due-process jail) and therefore donatos bonded out of jurisdictional inquiry precede that must at 552. reject the claim on the merits. Id. of the merits. See Daimler- consideration that the ordinance is certainly agree I Cuno, 332, 342, Chrysler Corp. v. 547 U.S. proposed clearly drafted. And the (2006); 1854, 164 L.Ed.2d 589 may be a reasonable limiting construction Wildlife, 504 U.S. Lujan v. Defenders litigation, the throughout one. But this S.Ct. im- agreed Woodridge parties have Const, III, § (1992); art. 1. see also U.S. all arrested and poses persons the fee on III requirements of Article The familiar jail, regardless at its of whether booked (1) must bail, standing are these: or bond they custody, post remain in fact”; “injury a concrete Granted, authority for have suffered out. there is some (2) injury fairly must be traceable invoking the doctrine of constitutional conduct; See, allegedly unlawful Escambia the defendant’s sponte. e.g., avoidance sua (3) 48, 51-52, likely, opposed to McMillan, “it must be County v. be (1984); injury will merely speculative, Ed- 80 L.Ed.2d redressed a favorable decision.” Lu- claim drops out of the case because the 560-61, 112 jan, 504 U.S. at S.Ct. 2130 plaintiff lacks standing challenge the fee (internal omitted). quotation marks on this basis. require-

There’s no doubt that the first remaining argument about defective ment is satisfied here. Markadonatos process also relies on a claim about sub- booking problem fee. The arises ordinance, stantive flaws which af- step standing at of the inquiry. two As analysis fects the Markadonatos has framed his constitution- to challenge the fee on procedural due- procedural al claim—in both its and sub- process grounds. explained, As I’ve Mar- aspects injury fairly stantive is not —his kadonatos’s claim deprivation about of pro- Village’s allegedly traceable to the uncon- rests on a premise cess that the fee cannot stitutional conduct. imposed without a predeprivation hear- Although arguments have evolved ing arrest, to test the validity of the during the course of this appeal, this alternatively, that must at least point Markadonatos offers three basic rea- provide postdeprivation some procedure so why booking-fee sons un- ordinance is arrested, those who are wrongfully (1) constitutional: the fee is collected charged, never guilty or found not may without a predeprivation hearing or a obtain a Again, refund. argument this ties postdeprivation process to obtain a re- procedural due-process claim to a con- (2) fund; arbitrary the fee is and irration- clusion about the substantive constitution- applied al as unlawfully to those who are ality Restated, of the ordinance. the argu- (3) arrested;2 arbitrary the fee is essentially ment is this: Because the fee is irrational applied to those who are nev- applied not rational as to those who are charged guilty.3 er or are found not The arrested, wrongfully never charged, or first an argument procedure; is about guilty, hearing found not a necessary to other two address the substantive terms prevent application its erroneous to people of the ordinance. in groups. these proba- Because Markadonatos concedes challenge But Markadonatos doesn’t ble cause to arrest and in fact admitted his validity of his arrest and has admitted his court, guilt press argument in he can’t is, guilt in court. That he does not contest that the fee applied is irrational as any facts that would be relevant to the wrongfully innocent or people. hearing that he claims the Constitution Campbell County, See Sickles v. 501 F.3d such, requires. As he has suffered no (6th 726, Cir.2007) 732 (holding plain- harm that fairly alleged traceable to the tiffs pleaded guilty who lack standing to deprivation of about which he com- challenge county’s jail collection of plains. costs as applied to those who are “arrest- The in ed, problem this case strad- booked and immediately released be- (internal mistake”) 624, Velger, dles Codd v. 429 97 cause of U.S. S.Ct. quotation ante, (Easter- 882, omitted); (1977), Carey marks at brook, J., 247, 1042, in concurring judgment). Piphus, So the 435 U.S. 98 S.Ct. 55 component (1978), substantive of the due-process L.Ed.2d 252 two cases were 30, ("[T]he Appellant’s 2. See Br. at ECF No. 62 3. See id. at 31 reason for Wood- (“Woodridge’s scheme is and ‘ar- ‘irrational’ ridge to link its fee to arrests rather than to bitrary’ people because it forces who are ille- money is to take from the inno- convictions gally illegal depriva- arrested to subsidize the guilty.”). cent in addition to the liberty."). tion of their 560 Elementary and 266-67, 1042. 98 S.Ct. point but seem to year apart a

decided sought damages secondary school students Supreme In Codd directions. opposite due-process rights cannot make a of their deprivation that a held Court when he claim a hear- due-process they suspended without procedural after were dispute ex- a factual assert that does not school rules. Court violating hearing to resolve. due-process a ists for required were not that the students held who lost officer The case involved if damages: [the] actual “Even prove of phase during probationary job his if justified, and even suspensions were 624-25, at 429 U.S. employment. injury, the any actual they did not suffer file contained personnel fact, His S.Ct. 882. they deprived were remains that suicide, attempted had that he report process.” Id. procedural right their job at prospects hurt his claimed which he 266, 1042. The Court remand- at 98 S.Ct. at agencies. Id. other law-enforcement to the specific ease with instructions ed the proba- 626, Although as 882. 97 S.Ct. If court concluded that court: district proper- did not have tionary employee he under school were valid suspensions job, he claimed in his ty interest damages rules, compensatory the claim for report about his nature of stigmatizing fail, nonethe- but the students were would hearing. him ato attempt entitled suicide damages not to entitled to “nominal less to deter- granted certiorari Id. The Court deprivation one dollar” for the exceed came within the case mine whether 267, 1042. Id. at 98 S.Ct. process. Regents v. in Board established doctrine Roth, Carey S.Ct. seem 408 U.S. The results in Codd and Wood, (1972), Bishop v. per contradictory, but the Tenth Circuit 48 L.Ed.2d between suasively explained the difference City County & the two cases Rector v. (10th Denver, 935, 944 Cir. 348 F.3d however, end, the Court found In the 2003). challenge Rector involved question this be- unnecessary to decide City regime parking-enforcement asserted that the the officer had not cause tick City’s parking standard Denver. attempt was false. of his suicide report recipient form notified the et Codd, 882. The or contested paid fine must be parking hearing “if mandated the Court held if days 20 and also warned any to serve within Process Clause is by the Due that 20- some factual was not received within payment there must be purpose, useful automatically and a dis- late fees employer day period, an certain dispute between signifi- has some charged employee plaintiffs— which Id. at 937-38. The applied. employee’s reputa- the bearing parking cant on people who were ticketed two right had claimed a Id. The officer tion.” fines—sued the violations and the Id. The hearing to “clear his name.” to a notice was City claiming that the late-fee “he not that because does concluded Court actuality, long in “as misleading because of the ma- the substantial truth challenge parking the recipient appears the before afford question, hearing in no would terial fee is twenty days, the late referee within for him.” achieving that result promise They com Id. at 942. imposed.” not 627-28, at 97 S.Ct. 882. Id. language on “categorical” plained recipients “pressures face of the ticket the following year, the the Carey, In decided the ticket” challenge rather than a violation of held that Supreme Court process because and thus violates process is actionable with- procedural due opportunity violator’s putative at “restricts a damages. actual proof out

561 objections.” he have present prevailed and to less whether would at to be heard hearing subject Id. that is the of his claim. may in injury “Parties suffer fact from plaintiffs But the in Rector did not as- if, procedures even at the defective end of they would have any sert basis on which day, they prevailed would not have signifi- contested their tickets. This cast 943; Buckley Id. at see also merits.” on their to sue for cant doubt (7th Fitzsimmons, 20 F.3d 796 Cir. rights. procedural interference with their 1994) (noting procedural that a “denial of Carey, the court ex- Reconciling Codd rights injury”). is a form of But important standing principle trapolated procedural due-process standing inquiry in cases: does not end with a find injury in fact. Codd shows that

The distinction between Codd and case, due-process Carey adopting per- lies in an ex ante must also spective right on the to due allege challenged he would have some hearings. Carey plaintiffs denied thing hearing at the that he contends is underlying allega- the substance of the Rector, constitutionally required. See against injury, them. Their tions made at 944 (citing F.3d Michael H. v. Gerald ante, they viewed ex is that were denied D., n. opportunity to convince school ad- (1989) (plurality opinion) they ministrators that should not be sus- (“We grasp concept ‘right cannot of a pended. post, Thus while ex their loss hearing’ part to a on the of a who any precluded on the merits claim for claims no substantive entitlement that the compensatory damages, the denial of vindicate.”)). hearing assertedly will Oth opportunity sway school officials to- injury “fairly erwise his not traceable” injury ward their cause constituted an in to alleged deprivation process. contrast, By fact. in Codd Here, Markadonatos does not wish to challenge did not the substantial truth of contest facts that would be relevant to damaging material set forth his hearing constitutionally he claims is reckoning file. Even his own required; lawfully he concedes that he was facts, hearing would not have vindi- arrested for retail theft and admitted his any rights. cated guilt in Accordingly, injury court. (internal Rector, 348 F.3d citations fairly not to the alleged traceable constitu- omitted). tional violation on which his claim rests. The Rector were more like the directly Posner does address police officer in than the Codd students plaintiffs standing, but the issue can’t Carey. They any grounds did not assert skipped summarily over or brushed they on which would have contested their DaimlerChrysler Corp., aside. See parking tickets. So the Tenth Circuit con- (“If dispute U.S. at 126 S.Ct. 1854 a is they standing cluded that lacked to claim a proper controversy, not a case or hearing rights. violation of their Their it, deciding courts have no business injuries payment of the parking fines— — doing in expounding the law the course fairly alleged

were not traceable to the so.”). notice; hearing rights defect their were unaffected “because there noth- Judge In Easterbrook his concurrence ing for a at hearing to decide.” Id. 945. standing writes that Markadonatos has to challenge raise a substantive to the ordi- explains, Carey

As Rector under a per- nance, to the extent that he but claiming procedural son a violation of rights may injury regard- have an in fact “maintains ... that the fee is constitution- applied irrational that the fee is premise the arrest even when

ally obnoxious arrested or wrongfully are cause and followed to those who by probable supported (Easter- ante, at 553 See innocent. by a conviction.” judgment). brook, J., concurring in the argue does not Markadonatos repeat, To advanced a claim hasn’t But Markadonatos the Due component of that the substantive constitutionally for- are municipalities Woodridge from prohibits Process Clause people booking a fee to assess bidden actually lawfully arrested and requiring argued that He has never category. this booking fee. He pay to guilty persons arbitrary and irrational are booking fees process argues only that substantive circumstances, from the quite apart all requiring prohibits Rather, them. to collect processes used unlawfully actually arrested or innocent due- of his dimension the “substantive” And his booking to fee. person that the fee always been claim has process posits that a claim about defective applied persons rationally be cannot constitutionally to en- required hearing is or innocent.4 wrongfully arrested who are has at least been law- payor sure that the ra- Indeed, accepts that it’s expressly he (because irrational it’s fully arrested on those booking fee impose tional to unlawfully arrested or innocent require an guilty.5 found who are arguments are con- pay). These about point me to a final brings This they and as such tingent, categorical, not analysis standing, Hamilton’s charac- with the relevant require and ev- suggests that Markadonatos which injury in fact— teristics to connect the may booking eryone else who here, alleged the fee—to the payment of having paid by virtue of challenge simply wrong. That’s what constitutional words, per- payor’s that the it—in other traceability element in doctrine matter. just do not sonal circumstances upon. insists facial constitu- general true in That’s standing to Markadonatos lacks Because City Ezell v. challenges. tional See raised, actually has I bring the claims he (7th Cir.2011) 684, 697 Chicago, 651 F.3d remand with instructions would vacate and (“In challenge, indi- a facial constitutional jurisdiction. for lack of to dismiss the case not matter. facts do application vidual established, standing is Once HAMILTON, joined by Judge, Circuit irrelevant.”). situation personal becomes WOOD, Judge, and Chief ROVNER as- it’s also true that Markadonatos And WILLIAMS, dissenting. Judges, Circuit challenge facial mounting that he is serts affir- I dissent from the respectfully actually does so. to the fee. But he never case, though this mance of the dismissal of of his explained, As I’ve both dimensions ground of common good I share a deal claim rest on the substantive due-process 28-29, Woodridge to make tion that will be unable Appellant’s ECF No. 62 4. See Br. (“It showing many people whom its government indisputable can- arrest, charging those arrestees a such that impose persons for no fees on constitutionally unjustified.”). reason, reasons, $30 fee is simply to for invidious separate show- the arrestee.... Some harass constitutionally necessary ("Woodridge is therefore in- could either 5. See id. at justify charging legitima- the hassle of corporate an arrestee for of the fee’s an assessment hearing could being cy probable Whatever that constitutional- cause arrested. into the probable panoply the of costs ly required showing might simply add the fee to be— evidence, cause, criminally convict- guilt imposed those who are preponderance the on of plead guilty.”). ques- ed or beyond a doubt—there is no reasonable opinion by Judge the Posner. We ment does not a gov- with allow state or local agree being that arrested is not service ernment deprive person permanently agree arrested. person to the We of even a modest amount of property his challenge has the ar- nothing based on but the unreviewable having guilty to policy despite pled rest fee say-so of one police officer. The victim of the offense for which he was arrested. We an arbitrary policy such has standing to that there a critical agree also is constitu- challenge it at the moment property tional difference between an arrest fee and taken. That regardless remains true of an administrative fee for bail. whether the deprivation might have been that, point disagreement

Our the very constitutional under a different ordi- plainly face of a unconstitutional fee for nance or policy that would have imposed privilege being the or “service” of arrest- basis, fee on different such posting ed, Judge Posner has chosen not to decide being bail or convicted of a crime. actually presented the case that has been I. the Case opinion

to us. His chooses instead to de- Transformation of case, shaped by cide a different one rewrit- A Woodridge police officer arrested ing overlooking the ordinance and plaintiff Jerry shoplift- Markadonatos for plaintiff’s allegations. approach That ing. When he was booked into the local troubling process analysis avoids the jail, charged he was an “ArresVBooking panel opinion, of the now-vacated but at Fee” of The fee applied every $30. disregarding the cost of basic rules of civil arrest, period. It applied regardless of procedure misusing and the doctrine of bail, whether the posted regard- arrestee constitutional avoidance. less of whether he prosecuted, was ever Judge opinion Posner’s finds differ- regardless any prosecu- of the outcome of meaning ence between the of the ordi- tion, regardless validity and even of the village’s nance and the actual practice money the arrest. Plaintiff collecting arrest fees. Even if that’s cor- sued, return, then for its that alleging rect, it would not warrant dismissal. The him deprived fee and all other arrestees of plaintiff alleged complaint in his that his property without due of law. rights were violated village’s actual ordinance, The full language of re- policy practice of charging the fee for pealed shortly granted before we rehear- arrest, whether or not that policy complied banc, provided: en “The for the fees with the any ordinance. Nor is there fac- following purposes activities and shall be tual dispute policy about how the func- (A) Booking posting as follows: fee: When practice. tioned in Through years three any legal process, bail or bond on civil or litigation, village has said over and criminal, including custodial arrest imposed over that it in fact the arrest fee Judge Posner is correct $30.00.” warrant — everyone simply who was arrested be- the ordinance was not well-drafted. they cause were arrested. throughout litigation, parties But Judge opinion Posner’s has transformed agreed have had to into an going jail unconstitutional fee for just because he arrested. That’s something into it never was in practice: administered, how the ordinance was out getting jail. administrative fee for presented that’s case us. We should instead decide the case the concludes, opinion Posner’s how- parties actually presented and have hold ever, plaintiff, village, their arrest fee unconstitutional. The Due judge, Process three- lawyers, Clause Fourteenth Amend- the district and the ¶¶ 4, 15,16, in the 3, allegations 37. Other have all misunderstood judge panel Village’s actual argument, also describe the complaint en banc oral In our ordinance. prac- for the first time regardless raised of whether practice, suggestion impos- could be read as by the ordinance. See that the ordinance tice was authorized person posted ¶¶ bail when a 17, 20, 25, 26, 36, plaintiff a fee The 45. it was for bond, of whether regardless him money was taken from alleges that warrant, arrest, any other custodial made bail booking, not when he upon Recognizing how process. legal form of (which And the com- paid separately). he under the fee would be troubling an arrest bail or bond. does not even mention plaint Clause, opin- Posner’s Judge Due Process counsel argument, the en banc During by in- interpretation new adopts ion this response ques- stated in for the avoid- of constitutional voking the doctrine for release tioning that his client ance. That fee was different from on bond. ignores of the case This transformation reviewing at issue here. arrest fee When deciding most basic constraint 12(b)(6) dismissal, can and a Rule we 12(b)(6): under Rule to dismiss motion factual asser- consider such new should allegations true the factual treat as long they are consistent with tions as Tellabs, Inc. v. Ma complaint. plaintiffs complaint. Wigod Fargo v. Wells Ltd., 308, 551 U.S. Rights, & kor Issues (7th N.A., Bank, 547, F.3d 168 L.Ed.2d 179 Cir.2012); & Veazey v. Communications (2007); Corp. Twombly, Bell Atlantic Inc., 850, 861 Chicago, 194 F.3d Cable of 544, 555, 127 S.Ct. 550 U.S. Cir.1999). (7th so especially This is when (2007); v. Tar Leatherman in re- provided the new information is Intelligence & County Narcotics rant that had not been con- sponse questions Unit, Coordination argument. even relevant before the sidered The S.Ct. are complaint Exhibits attached to the policy prac and alleges here complaint part complaint, also of course. See solely on the the fee based imposing tice of Tellabs, 10(c); 551 U.S. at Fed.R.Civ.P. arrest, in of the Constitu fact of violation receipt the vil- 127 S.Ct. 2499. The regardless allegations stand tion. Those part is of this com- lage gave the misinterpreted its village of whether opinion Posner’s does not ordinance, plaint. regardless and whether own (like flatly later inconsis- posting receipt, bail or mention the it’s other events might justified theory. heading says a dif The pleading guilty) have tent with his hypothetical ferent fee under a different The text “Arrest/Booking Fee Notice.” hereby ordinance. notified that under says: “You are 5-1-12, # an adminis- Village Ordinance complaint makes clear required upon com- trative fee $30.00 wording on the depends that his case arrest/booking pro- pletion custodial the ordinance interpretation of or abstract Complainant named above cedure. The prac- village’s policy on the actual but Officer, you on oath states its Police just arrest fee collecting tice of arrest, name, arrested on: [date were jail. Paragraph 1 of the First going into birth, receipt and address].” date (the Complaint operative one Amended say that “Fee of is due goes on to $30.00 booking poli- fee stage) alleges: this “The of arrest.” The days fifteen from date substantively uncon- cy procedurally imposed for ar- receipt thus shows a fee complaint refers several stitutional.” The fact, rest, bail. In noth- not for release on booking policy. See more times to the arrested, receipt suggests in the the fee has ing virtually and there is no chance bond, bail, anything to do with or release of a mistake about that fact. The district jail, provision delayed from and the for court panel majority and the both agreed fit payment obviously does not with a fee simple syllogism and made this the founda posting for bail. tion of their decisions. See Markadonatos 2128386, v. Woodridge, 2012 WL fully The limited record before us is thus (N.D.Ill. 11, 2012), at *3 aff'd, June plaintiffs allegations consistent with the (7th 984, Cir.2014), F.3d charged vacated he was the fee for his arrest. (March 2014). 17, Judge opinion points nothing Posner’s account, that would contradict that even crediting Instead of village’s expla- let alone resolve such factual issues ordinance, nation for how enforced the against plaintiff on a motion to dismiss. Judge opinion goes through Posner’s pro- do not know if the We was cedural contortions to construct different charged posted additional fees when he past policy and decides the case on that only that the itself bond cost $150. bond— basis. But the bottom line is that stage What matters at this is that the plaintiff alleged village has has —and plausibly alleged has that he was not even disputed pres- set of facts that —a charged for being only arrested —and ent a viable claim damages for for violation being arrested. no We have basis for of his federal rights by constitutional rea- concluding otherwise. son of a municipal policy. See Monell v. plaintiffs allegations As if the were not Services, Dep’t. Social enough, village disputed has never 98 S.Ct. 56 L.Ed.2d 611 The factual foundation of his case: viability simply of that claim does not de- triggered only by arrest fee is arrest. Nor pend on interpret whether we can village has the ever claimed the fee had village ordinance better than the that ad- anything jail, to do with release de- ministered it. spite being fully aware of the ap- cases proving administrative fees for state bail- II. Constitutional Avoidance? systems. That oversight bond was not an Faced with the consistent account of the simply counsel. It was an acknowledg- policy plaintiffs allega- arrest fee fee, ment that this in fact an arrest tions, village’s arguments, and the de- not a village argued bond fee. The has appel- cisions of the district court and the justified by instead that the fee was Judge opinion late Posner’s panel, asserts arrested, being “service” of such as the that all have been mistaken. opinion The being photographed “services” of and fin- interpretation offers its novel of the ordi- gerprinted. No member of the en banc nance in the name of constitutional avoid- court has endorsed that ludicrous defense. ance, practice interpreting statutes village has even tried to make a so as to avoid constitutional issues serious simplicity. virtue of the arrest fee’s At if that can be done without undue violence case, every step village has statutory language. to the argued the three-factor due Supreme upheld Because the Court has Eldridge, test under Mathews v. 424 U.S. certain administrative for the service fees (1976), 47 L.Ed.2d 18 provided by systems, state bail-bond shows there is no need for additional prefers Posner to read the ordi- procedural protections. Why? Because imposing solely post- nance as the fee person being issue is whether the charged actually ing the arrest fee has been not for the mere fact of bond and future, Kuebel, not a device for wish lation for the See Schilb arrest.

custodial away past violations of constitutional by Judge Posner rights. The cases cited County Car- (1971); Payton v. see also case, every In such (7th Cir.2007). reflect this limitation. roll, F.3d 845 was used to limit constitutional avoidance in the fees Schilb opinion overlooks actions or to deal with government’s unlike the vil- optional, Payton were relief, injunctive not to excuse requests for cases, In here. those lage’s arrest rights. of constitutional past violations obtaining options other arrestees had Sullivan, 173, 181, 500 U.S. See Rust v. release, were of course and bail decisions (1991) 1759, 111 114 L.Ed.2d 233 S.Ct. subject supervision. court sought injunction and declarato (plaintiffs has been avoidance While constitutional relief); Valley ry Ashwander v. Tennessee extensively interpretive as an criticized 288, 317, 466, Auth., 80 297 56 S.Ct. U.S. tool, place Supreme in retains a secure (1936) sought to en (plaintiffs L.Ed. 688 If were plaintiff Court decisions.1 contract); v. join performance of Crowell declaratory re- only injunctive or seeking 285, Benson, 22, 62, 52 76 285 U.S. S.Ct. adminis- village how the should lief about (1932) (interpreting statute L.Ed. 598 forward, consti- going ter the ordinance award of permit judicial review of ALJ’s offer a would thus tutional avoidance compensation); Hooper v. Cali worker’s the case resolving basis for plausible 648, 15 207, L.Ed. fornia, 155 S.Ct. 39 U.S. invalidating the ordinance. without (1895) by (affirming 297 criminal conviction is that the problem here having state statute as declining to read damages for an unconstitutional seeking Parsons v. application); extraterritorial past. Judge in the Posner policy practiced (3 Pet.) 433, 7 L.Ed. 732 Bedford, 28 U.S. using the doctrine has not cited cases (1830) to limit (reading ap federal statute context, avoidance in this of constitutional jury thus to pellate review of verdict and reason. The doctrine is good and for rights). Amendment preserve Seventh to function in the mold of Professor meant endorsing constitu prominent Other cases virtues,” fric- minimizing “passive Bickel’s Clark, are similar. See tional avoidance government tion between branches (aliens 381-82, 543 125 S.Ct. 716 in U.S. grounds on narrow where deciding cases relief); corpus to habeas detention entitled Bickel, Alexander The Least possible. Corp. DeBartolo v. Florida Edward J. (2d ed.1986); Branch 175-83 Dangerous Trades Bldg. Coast & Constr. Coun Gulf cil, Martinez, 371, 543 U.S. see also Clark 568, 575, 1392, S.Ct. (2005) 716, 160 L.Ed.2d 734 (1988) (denying enforcement (avoidance legisla- give meant to effect to order); NLRB v. Catholic Bish of NLRB “subverting it” ture’s intent instead 490, 499-501, 99 op Chicago, 440 U.S. statute). invalidating (1979) (denying S.Ct. order); understood, enforcement of NLRB United Properly constitutional Attorney ex rel. Gen. v. Delaware & saving legis- a mechanism for States avoidance is (1983) (canon see, has critiques, e.g., Frank H. Easter- Chi. L.Rev. 1. For brook, unduly enlarging "already reach effect of vast Liberals and Conservatives Do Differ prohibition”); Henry J. 73 U. Colo. L.Rev. of constitutional Judicial Activism? (1967) 1405-06, (2002) Friendly, 210-12 & n. 88 (describing Benchmarks this inter- "noxious,” (canon many dangers illegiti- as ad- "wholly has "almost pretive canon as mate,” vantages” not be used to dismiss judicial power”); and should and "a misuse of Posner, complaints before the Statutory Interpretation— indictments or civil A. Richard Courtroom, developed). 50 U. facts sure the Classroom and in the Co., lage any process defends the lack of on the Hudson (1909) (government 53 L.Ed. 836 simple theory that there is no serious enjoin integration vertical of coal sought chance of an in imposing error the fee. If railroads). producers and the claim limited to substantive due process, the village argues plain- simply avoidance has no Constitutional tiff has no “fundamental right” this, place in a case like where lawyers amount of cash that most damages past a claim for a alleged has modest, judges would view as and the sub- rights. violation of his constitutional (suspected) stantive result —a fine for Judge Posner’s novel revision of the vil- lage’s provides ordinance therefore no ba- criminal conduct—does anyone’s not shock 12(b)(6) affirming sis for the Rule dismiss- conscience. damages.2

al of the claim for problem actually The is more fundamen tal than these two distinct branches of Village’s III. The Merits Actual of modern due process jurisprudence: the ar Policy process rest fee denies due because it im Returning to the merits of the case actu- a poses permanent deprivation property of us, a case. ally presented simple this is based on the unreviewable decision of one village property The took from all arres- police officer. We don’t tolerate such arbi process of law. The de- tees without due trary government deprivations even for arrest, privations occurred at the time of parking City See Van Harken v. tickets. immediately finally. and The ordinance (7th Chicago, 103 F.3d Cir. of dispute allowed no room for or of review 1997) (rejecting process challenge due any deprivations kind. The occurred parking regime ticket because it allowed say-so perhaps based on and even review); judicial and administrative officer, arresting regard- the whim of one Columbus, City Gardner v. 841 F.2d of of pros- less whether arrestee was ever (6th Cir.1988) (same). 1272, 1276-77 convicted, regardless ecuted or and of village’s provided pro arrest fee neither whether in the arrest was lawful the first any cess nor in form. recognizable law place. By imagination no stretch of the a indistinguishable This arrest is process can that be due of law. police might charge merely fee the A ink good spilled deal of has been you a traffic subjecting stop, a breatha others) (by this case me and on whether test, frisk, lyzer Terry stop a or for problem is better understood in terms executing your search warrant house. procedural process of due or substantive Why unaccept- all of those fees be would process. village due has defended the guarantee able? The constitutional of due strategy divide-and-conquer. fee with a of process requirement is at bottom If the claim procedural is limited to a government according act the rule process theory along the lines of Mathews implicit of That in the requirement law. is Eldridge, v. phrase “due of law” itself and evi- (1976), Goldberg Kelly, long history King dent from its since John Magna not to dis- (1970), promised Carta pro- where the issue is how much needed, when, subjects possess imprison except or cess is to decide a disputed factual legal question, “by the vil- the law of the land.” Influenced prove alleged policy, page 2. If can Posner’s discussion on 550 of the incen- something village damages governments thus should be liable for whether tives for local repealed Judge sequitur. or not it had the ordinance. of a non hearing “protect as notice and founding genera- such history, our Nation’s this arbitrary deprivation property”). rule of law so of against sought to ensure tion any nor executive tyrannical that neither say- the unreviewable A fee based on impose could government of organ other arbitrary is an of one officer so See, e.g., Thomas arbitrarily. its will of An arrest fee property. deprivation (1776), reprinted Paine, Sense Common not, course, the end threaten does Paine 33 Thomas Works The Great rights as liberty property of individual (1877) (“For governments in absolute as English of an baron’s the confiscation did law, countries the law so in free king arrest village’s But entire estate. Adams, A De- king”); John ought to be permanent deprivations imposed fee still of Government of the Constitutions fence everyone arrested in the property America, in 4 The of the United States opinion Posner’s village. And (1851) (“where Adams Johns Works of deprivation cannot acknowledges, governs, govern- it is interest public seriously justified as a service to men”); laws, The Fed- and not of ment of arrestee. Madison) (James (noting No. 51 eralist has theory is that the arrestee be- If the government branch of dangers of ar- justify criminal to powerful). something too done coming fee, judge and and the as the district rest rule of law runs to the This commitment reasoned, question that’s a panel majority pro due Supreme Court’s throughout through process provid- the due we answer long re which has jurisprudence, cess justice system, criminal not by ed and common-sense flected the “traditional arresting say-so of one the unreviewable Clause, like the Due Process notion that 358, Carta, Winship, In re 397 U.S. ‘in officer. See Magna in the its forebear (1970); 1068, 361, from the L.Ed.2d 368 the individual 90 S.Ct. 25 tended to secure govern Louisiana, 275, 278, arbitrary powers of the of exercise 508 U.S. Sullivan v. ” Williams, 327, (1993). 474 Daniels v. U.S. 2078, ment.’ 124 182 L.Ed.2d 113 S.Ct. 662, 331-32, L.Ed.2d 662 106 S.Ct. 88 suspect’s confession to an officer Even a 110 (1986), California, v. quoting Hurtado only evidence. It does not spot on the 527, 111, 516, 4 28 L.Ed. 232 S.Ct. U.S. impose judgment to entitle the officer (1884), Okely, v. quoting Bank Columbia of punishment. (4 Wheat.) 235, 244, 4 L.Ed. 559 17 U.S. opin- Contrary to Easterbrook’s both in This foundation is obvious ion, supported an arrest is even where the substantive strand applying cases im- again, village probable cause—and County v. process, see Sacramento regardless of whether posed this arrest 1708, Lewis, 833, 845, 523 U.S. 118 S.Ct. to probable cause is too low bar was— (1998) (“Since the time 1043 140 L.Ed.2d justify deprivation proper- permanent process, of due early explanations of our deprivation is the ty. Permanence core of the con have understood the we this case and for- key difference between arbitrary ac protection against cept to be States, v. Kaley cases like United feiture tion.”), purely procedural as well as in — 1090, 1098, -, S.Ct. 188 U.S. 134 McDonnell, cases, 418 U.S. see v.Wolff (2014). They temporary L.Ed.2d 46 allow 558, 2963, 41 L.Ed.2d 935 94 S.Ct. on the basis of property interference with (1974) (“The process is touchstone of due suggested have never probable cause but arbi against of the individual protection perma- sufficient for a probable cause is v. government.”); action of Fuentes trary Nor is it answer deprivation. nent Shevin, 67, 81, 32 (1972) can hold protections say that because (procedural up bring- injury arrestee for to 48 hours without of being charged the is “not $30 him ing judge, County before see fairly traceable to Village’s allegedly 44, 56, McLaughlin, v. Riverside Sykes, J., unconstitutional conduct.” (1991), S.Ct. page 29. approach This confuses the mer- justifies fact of custodial arrest extra de- its of the claim with his standing privations liberty property. Unlike it, bring and the approach is based on a temporary limits on the arrestee’s policy different ordinance or than the one freedom of movement in the hours before actually before us. judge, he can see fee is not an Standing inquiry separate is an from the consequence inevitable of custodial arrest.3 clear, merits and is not a difficult hurdle to (at Finally, Judge suggests page Posner especially for a who asks for the 551) really that the plaintiff here doesn’t return property of his taken by gov- complain have much to about. The fee See, e.g., ernment. Construction Indus. could have been constitutional under dif- Ret. Fund Kasper v. Truck- of Rockford ordinance,

ferent such as one written to Inc., (7th Cir.1993) ing, 10 F.3d impose plea judg- the fee after a (“a litigant doomed to lose does not for guilty, ment of and this admitted sue”). reason lack As we the offense here. problem The first with recently explained: that suggestion is that that’s not what the pleading stage At the Article III stand- village problem did. The second is that something alleged, to be right procedure to fair applies to the proved. All alleged that must be is an guilty innocent and E.g., Carey alike. injury, personal to the person seeking Piphus, 485 U.S. judicial relief, redress, that the court can (1978) (“the 55 L.Ed.2d right proce- an injury such as injury inflicted dural due is ‘absolute’ the sense government got when it has hold of depend that it does not upon the merits of money that belongs person to the assertions”). a claimant’s substantive refuses to return it. This is constitu- tional law 101. IV. The Standing to Sue Plaintiffs United States v. Funds in the Amount of majority A agrees of the court that the $571,810, (7th Cir.2013). 719 F.3d 651 plaintiff standing challenge has the vil- The requirements are easi- lage’s policy. Judge Sykes a takes differ- ly plaintiff satisfied here. The suffered an ent view in opinion her and would instead injury village when the took his He $30. remand the case to the district court to alleges money pursuant that the was taken dismiss for lack standing. Judge of East- to the policy defendant’s unconstitutional agrees erbrook with her in part. Because collecting plaintiff money the from all arrestees. pleaded guilty shoplifting, government injury and the A court could impose by finding can fines on redress his crime, guilty those who are the policy awarding found of a unconstitutional and Judge Sykes plaintiffs See, would hold that the damages. enough. e.g., That’s Lu- My colleagues’ 3. identity, focus on whether an arrest taken where a officer conduct- probable was made with cause misses the stop a traffic learns there is an outstand- point constitutional for another reason. ing arrest warrant for someone with the same simply Probable cause was not relevant under may name as driver. An arrest be made Moreover, village’s policy. ordinance and cause, probable justifiable with but is no there probable can be arrested with cause charging reason for the arrestee a fee for the having anything wrong, without done or even experience. anything suspicious. Consider a case of mis- the ultimate out- apply “whatever guards Wildlife, 504 U.S.

jan v. Defenders 560-61, Fuentes v. hearing”), quoting 112 S.Ct. come of on (1992). depend Standing does Shevin, ultimately prevail will plaintiff

whether fee fact that the L.Ed.2d Nor does claim. his constitutional on on some lawfully imposed might have been village on whether standing depend hypothetical a different arrestees under justify a fee able to might have been charged that policy—one or policy a different ordinance under not save ultimately those convicted—does or by alleged not been has than any more village’s practice actual (or ar- even pleadings supported jus- conviction could subsequent criminal village). by gued stop, a mandatory fee for a traffic tify a Posner, Judge Sykes would Like frisk, of a stop and or execution Terry yet a by hypothesizing this case resolve warrant. search ordinance municipal practice or different here, actually alleged but she than the one so violation here is process The due a third version. Because on relies standing can- plaintiffs fundamental charged it arrest- have those village could Velger, not be defeated Codd conviction, she upon fine their ed a $30 882, 51 L.Ed.2d 92 reasons, standing to chal- this lost (1977), City County & or Rector v. charging village’s policy actual lenge the (10th Denver, Cir.2003), the 348 F.3d 935 arrest when he arrestees at the time of all Judge Sykes endorses. reasoning of which III But Article guilty plea. entered wrinkle cases addressed an unusual Those a tool for appropriate no more standing is process. procedural in the law of due than is the doc- rewriting the arrest fee held, Rector They on the merits and Codd avoidance. trine of constitutional via- standing, had no village’s policy, actual Under process more demanding basis for ble moment violation occurred underlying dispute when there was no brought jail the arrestee was hearing could have resolved. Codd than his fee for no reason other the $30 village here if the Rector would be relevant arbitrary deprivation That was an arrest. ordi- policy a different adopted had any process of law. property without nance, fee from each to collect arrest plain- payment, at that moment after And of a crime arrestee who was convicted other arrestee tiff Markadonatos from the arrest. arising claim. ripe process due had happened posting Anything later — this Although this case. That’s bail, anything else—is pleading guilty, or that he was denied argues also plaintiff question. constitutional irrelevant to the he does not seek process, sufficient la- happened because what It’s irrelevant meaningless hearing to determine whether village’s own was irrelevant under the ter chal- or not. He instead he was arrested and all other arres- plaintiff policy. utterly arrest fee as an arbi- lenges the regardless fee of whether tees im- It was trary deprivation property. con- charges faced or were ever they ever permanently by the unreviewable posed They all the same denial victed. suffered officer, with no act of one money process the minute of due simply not and Rector were all. Codd Carey v. pockets. taken from their See violation of due to such basic addressed 247, 266, 98 S.Ct. Piphus, 435 U.S. (1978) process. (procedural safe- 55 L.Ed.2d Linings

V. Silver Jorge VELÁSQUEZ- Argenis The result of the court’s en banc vote is GARCÍA, Petitioner, news for Markadonatos. His bad guilty plea later seems to have made him unsympathetic champion pro- due HOLDER, Jr., Attorney Eric H. cess, pursue but he should be allowed to States, General of the United claim and to seek class certification. Respondent. required pay

Yet for others who were No. 13-2610. Woodridge might arrest fee or who United Appeals, States Court of future, required similar fees Seventh Circuit. are actually linings there some silver (1) the en banc decision: The erroneous Argued Feb. 2014. (2) panel opinion has been vacated. A July Decided 2014. majority signals clearly any of court likely similar arrest fee is to fail a future Rehearing Denied Oct. 2014. (3) process challenge. majority A the court finds that has (4) assert his claim. Posner’s

procedural contortions to avoid the effect actual allegations have not by majority

been endorsed of the court.

(5) theory denying No relief has

support majority of a of this court. So I respectfully

while dissent from affir- case,

mance of dismissal in this I hope signals discourage

these will the Village of

Woodridge governments other

from adopting a new arrest fee policy risking litigation similar §

award under 42 U.S.C. 1988.4 Eber, precedential 4. Readers interested in the ef- Michael L. When the Dissent Creates the vote, Majorities Cross-Cutting fects of our court's divided where no one Law: and the Predic- Precedent, judgment garnered majority, may Emory find an tion Model L.J. 207 (2008), interesting phenomenon discussion of the and sources cited therein.

Case Details

Case Name: Jerry Markadonatos v. Village of Woodridge

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jul 21, 2014

Citation: 760 F.3d 545

Docket Number: 12-2619

Court Abbreviation: 7th Cir.