In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐2619
JERRY G. MARKADONATOS, individually and on behalf of all
others similarly situated,
Plaintiff‐Appellant,
v.
VILLAGE OF WOODRIDGE,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 C 7006 — James F. Holderman, Judge.
____________________
ARGUED MAY 30, 2013, REARGUED EN BANC JUNE 3, 2014 —
DECIDED JULY 21, 2014
____________________
Before WOOD, Chief Judge, and POSNER, FLAUM,
EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, TINDER, and
HAMILTON, Circuit Judges.
PER CURIAM. The court is divided. Five judges in two
groups (Judges Posner, Flaum, and Kanne in one; Judges
Easterbrook and Tinder in the other) vote to affirm the
judgment of the district court. Judge Sykes votes to remand
2 No. 12‐2619
with instructions to dismiss the case for want of standing to
sue. The remaining four judges (Chief Judge Wood and
Judges Rovner, Williams, and Hamilton) vote to reverse. Be‐
cause no position commands a majority, the judgment of the
district court is affirmed by our divided court. Durant v. Es‐
sex Co., 74 U.S. (7 Wall.) 107, 112 (1868).
POSNER, Circuit Judge, joined by Circuit Judges FLAUM and
KANNE concurring in the judgment. The plaintiff was arrest‐
ed in the Village of Woodridge, Illinois, for shoplifting, an
Illinois Class A misdemeanor. 720 ILCS 5/16‐25. Upon arriv‐
ing at the police station he was told that an administrative
fee of $30.00 is required upon completion of any custodial
arrest/booking procedure. He paid the $30 on the spot, post‐
ed bond, and was forthwith released, without being jailed.
He later pleaded guilty to the shoplifting charge and was
ordered to undergo 12 months of court supervision and to
pay fees and fines totaling $785 (on top of the $30 fee that he
had paid at the police station). He claims to have completed
his period of supervision successfully, and that as a result
the shoplifting charge was dismissed, “without adjudication
of guilt,” pursuant to 730 ILCS 5/5‐6‐3.1(f). The defendant
(the Village of Woodridge) denies that the plaintiff obtained
such a dismissal, but since the complaint was dismissed on
the pleadings, with no findings based on evidence, we’ll as‐
sume that the plaintiff’s allegation is correct. Nothing turns
on whether it is or is not correct, however, as we’ll see.
The suit (a class action suit, but dismissed by the district
judge before he decided whether to certify a class) challeng‐
es the constitutionality of subsection 5‐1‐12(A) of section 5‐1‐
12 (captioned “Administrative Fees”) of the Woodridge Vil‐
lage Code. The subsection imposes a “booking fee” of $30
No. 12‐2619 3
“when posting bail or bond on any legal process, civil or
criminal, or any custodial arrest including warrant.” Pre‐
sumably, “when posting” means “on a person who posts.”
The subsection is poorly drafted; its poor drafting will figure
in our analysis. Although the ordinance has been repealed
and the repeal moots the plaintiff’s request for declaratory
and injunctive relief, it occurred after he paid his $30 and so
does not nullify his claim for damages.
The plaintiff appealed and a panel of this court affirmed
the dismissal of the suit by a split vote. 739 F.3d 984 (7th Cir.
2014). Judge Stadtmueller of the Eastern District of Wiscon‐
sin, sitting by designation, wrote the majority opinion. Judge
Sykes wrote a concurring opinion and Judge Hamilton a dis‐
senting opinion. The plaintiff petitioned for rehearing en
banc, and his petition was granted.
Judge Hamilton’s dissent assumed that the ordinance re‐
quires imposition of the $30 charge on anyone who’s arrest‐
ed, whether or not he’s released from custody immediately
either because he posts bail (that is, pays money out of his
own pocket to be released) or posts a bond (borrows the re‐
quired bail money). There are false arrests, how frequently
or infrequently in Woodridge we have no idea, and to be
forced to pay even a small amount of money for being false‐
ly arrested may present serious constitutional issues. But the
court doesn’t have to decide any of those issues—indeed, it
should not reach them.
There is a critical difference between a fee for posting bail
and a fee (if that’s the right word for it) for being arrested.
To be released on bail, whether having been arrested falsely
or not, is a benefit that the Village of Woodridge confers on
the people whom its police officers arrest. Most people who
4 No. 12‐2619
are arrested do not want to spend any time in jail, and this is
true whether or not there are solid grounds for the arrest, as
there were in the case of our plaintiff. He preferred to pay
the cost of a bail bond ($150, which was 10 percent of the
amount of bail required for him to be released, because his
arrest had been for a Class A misdemeanor; see 720 ILCS
5/16‐25(a)(1), (f)(1); Ill. Sup. Ct. R. 528(c)).
The cost of the bond was borne by the court and so ulti‐
mately by the county or the state. (Illinois does not permit
use of commercial bondsmen.) But the Village doubtless
bore some expense as well, in making sure that the bond was
proper and therefore that the plaintiff could and should be
released pending trial. County sheriffs are authorized to
charge a fee for bond services, see 55 ILCS 5/4‐5001, and in
fact Du Page County (in which Woodridge is located) after a
cost study set its bond fee at $30. Du Page County Code § 20‐
130.
The County’s cost study found that the cost, per person
arrested, to the Sheriff’s Department of providing bond was
$44.59. DuPage County Sheriff Cost of Service Analysis 1‐2
(Aug. 9, 2002). On the basis of the study the County raised
its fee for the service, which had been $25, to $30. It’s thus no
surprise that Woodridge, when an arrest is made by its offic‐
ers rather than by the County Sheriff’s police, charges the
same fee. There is no contention that for the same service
provided by the Village a fee of $30 is excessive; the County
study suggests if anything that the fee doesn’t cover the Vil‐
lage’s costs. Anyway the constitutionality of a fee for a gov‐
ernment service does not depend on proof of an exact equal‐
ity between the cost of the service and the size of the fee.
Massachusetts v. United States, 435 U.S. 444, 464–67 (1978);
No. 12‐2619 5
Mueller v. Raemisch, 740 F.3d 1128, 1134 (7th Cir. 2014); Onei‐
da Tribe of Indians of Wisconsin v. Village of Hobart, 732 F.3d
837, 841–42 (7th Cir. 2013); Empress Casino Joliet Corp. v. Bal‐
moral Racing Club, Inc., 651 F.3d 722, 728–29 (7th Cir. 2011)
(en banc); Broussard v. Parish of Orleans, 318 F.3d 644, 660 (5th
Cir. 2003) (“even though the connection between the bail
fees charged and the administration of the bail‐bond system
may be somewhat tenuous, … arrestees have failed to pre‐
sent evidence sufficient to show that the fees imposed are
arbitrary”); compare State v. Gorman, 41 N.W. 948, 949
(Minn. 1889).
If, then, Woodridge’s ordinance imposes the $30 charge
only when the person arrested “post[s] bail or bond,” the
charge is a lawful fee for a government service and the plain‐
tiff’s case collapses. Schilb v. Kuebel, 404 U.S. 357, 370–71
(1971), states that “§ 110‐7 [of Article 110 of the Illinois Code
of Criminal Procedure of 1963] authorizes retention of the
1% as ‘bail bond costs.’ This is what that description implies,
namely, an administrative cost imposed upon all those,
guilty and innocent alike, who seek the benefit of § 110‐7.
This conclusion is supported by the presence of the long‐
established Illinois rule against the imposition of costs of
prosecution upon an acquitted or discharged criminal de‐
fendant, and by the Illinois court’s own determination that
the charge under § 110‐7(f) is an administrative fee and not a
cost of prosecution imposed under [Illinois law] only upon
the convicted defendant” (citations omitted). And in Payton
v. County of Carroll, 473 F.3d 845, 852 (7th Cir. 2007), we read
that “the sheriffs have a legitimate interest in recouping
some of the costs of administering the bail system. If they
had to offer another separate set of hearings devoted only to
these small administrative fees, they might opt out of the
6 No. 12‐2619
bail bond process altogether—a step that Illinois would
permit them to take. Every detainee would then need to wait
for the office hours of the county clerk, rather than the subset
of detainees who now elect that option. We conclude that
plaintiffs have not stated a claim for a deprivation of due
process.”
The Supreme Court held many years ago, in Kent v. Dul‐
les, 357 U.S. 116 (1958), that the right to travel abroad is a
“liberty” protected by the Constitution’s due process claus‐
es. Nevertheless you must pay for a passport to be allowed
to travel abroad. Similarly, you have a right not to be arrest‐
ed if there is no probable cause to arrest you; but if you have
the misfortune to be wrongfully arrested (though the arrest
of the plaintiff in this case was not wrongful), you still must
post bail if you want to avoid being jailed pending a judicial
determination whether there was probable cause to arrest
you. The right to bail, like the right to travel abroad, is a val‐
uable right for which the person seeking it, whether guilty or
innocent, must pay. That is what Schilb and Payton hold. The
$30 fee is a part of that cost—a small part.
The plaintiff’s counsel tells us that the $30 “booking fee”
provision is unique among the provisions of the ordinance
because it alone imposes a fee for what may be innocent
conduct mistakenly believed by police to be illegal. He in‐
stances the $15 fee for “release of [an] impounded dog or
cat.” But of course a dog or cat may escape the owner’s con‐
trol, and later be impounded, without fault on the owner’s
part. The animal may have been stolen, or have escaped
from its home because a careless workman had left a door or
window ajar, or been lured from its litter box by a rogue
Woodridge police officer with catnip. Even in such cases,
No. 12‐2619 7
impounding the animal confers a benefit on the owner for
which he must pay despite his lack of fault. Or consider the
Village’s $250 “towing fee”: the owner must pay to recover
his car even if he believes with good reason that the car was
towed in error from a legal parking spot. It is the same in the
false‐arrest case if the arrested person wants to be bailed out.
This discussion leads to the critical issue presented by the
appeal: the scope of the “booking fee” provision. It is unclear.
The parties interpret it to mean that if either you are arrest‐
ed, or you post bail or bond in respect of some other form of
“legal process,” you must pay the $30. But there is another
plausible interpretation. Remember what it says: “when
posting bail or bond on any legal process, civil or criminal,
or any custodial arrest including warrant,” you must pay the
charge. This can be read to mean that you must pay only
when posting bail or bond in connection with any legal pro‐
cess, including a custodial arrest pursuant to a warrant. The
“custodial arrest” clause is, on this interpretation, redundant
(for custodial arrest is a form of legal process), but redun‐
dancy is common in statutes, and probably more so in vil‐
lage ordinances; a village may not have the resources for as‐
suring highly professional legal draftsmanship.
If we accept the plaintiff’s interpretation we create a seri‐
ous constitutional issue—whether government may charge a
person a “fee” (the plaintiff admits that the $30 charge is a
fee rather than a fine) merely for being arrested, even if, as
things turn out, he has been falsely arrested. As is apparent
from Judge Hamilton’s panel dissent, adopting the plaintiff’s
interpretation of the ordinance would plunge the court into
a swamp of issues involving both procedural and substan‐
tive due process, and maybe equal protection as well. We are
8 No. 12‐2619
adjured by countless Supreme Court decisions to avoid stat‐
utory interpretations that raise serious constitutional issues,
and not just interpretations that if adopted would render a
statute unconstitutional without further analysis. In the
words of Justice Holmes, “the rule is settled that as between
two possible interpretations of a statute, by one of which it
would be unconstitutional and by the other valid, our plain
duty is to adopt that which will save the Act. Even to avoid a
serious doubt the rule is the same.” Blodgett v. Holden, 275 U.S.
142, 148 (1927) (concurring opinion) (emphasis added); see
also Crowell v. Benson, 285 U.S. 22, 62 (1932); Ashwander v.
Tennessee Valley Authority, 297 U.S. 288, 347–48 (1936)
(Brandeis, J., concurring); Rust v. Sullivan, 500 U.S. 173, 190–
91 (1991); Matthew C. Stephenson, “The Price of Public Ac‐
tion: Constitutional Doctrine and the Judicial Manipulation
of Legislative Enactment Costs,” 118 Yale L.J. 2, 36–39 (2008).
This corollary of the “constitutional avoidance” doctrine—a
doctrine that in its original form required “that every rea‐
sonable construction must be resorted to, in order to save a
statute from unconstitutionality,” Hooper v. California, 155
U.S. 648, 657 (1895) (emphasis added); see also Parsons v.
Bedford, 28 (3 Pet.) U.S. 433, 448–49 (1830) (Story, J.)—has
been criticized. See Henry J. Friendly, Benchmarks 211–12
(1967); Frederick Schauer, “Ashwander Revisited,” 1995 Sup.
Ct. Rev. 71, 74. But it endures, and binds us.
There are limits to interpretive freedom, and thus to the
reach of the constitutional avoidance doctrine. The interpre‐
tation that avoids having to grapple with difficult constitu‐
tional issues must be reasonable to be a serious candidate for
adoption. But those limits are not exceeded by an interpreta‐
tion that confines the $30 booking fee to cases in which a
person arrested in Woodridge seeks bail or bond. It’s like
No. 12‐2619 9
interpreting the phrase “my cat enjoys jumping on trampo‐
lines and beds” to mean that she enjoys jumping on both
things, as opposed to her enjoying jumping only on trampo‐
lines and, separately, enjoys beds for reasons unrelated to
jumping on them. The latter interpretation, which corre‐
sponds to the interpretation urged by the plaintiff in this
case, is actually less plausible than the former interpretation,
the one that spares us from having to resolve serious consti‐
tutional issues. The plaintiff’s lawyer emphasizes that the
ordinance makes no provision for refunds, but there is no
reason for a refund when a valuable service, such as assist‐
ing in obtaining bail, is rendered.
Granted, the title of the provision—“booking fee”—
points to an arrest; the arrested person is booked even if he
does not post bail or bond. But a glance at the other provi‐
sions of the ordinance reveals carelessness in titling. For ex‐
ample, the provision imposing a “towing fee” is not imposed
every time a vehicle is towed by the Village, even if the vehi‐
cle was towed because its driver or owner was arrested; it is
imposed only “on an arrestee any time a vehicle release form
is required.” The opening sentence of the ordinance states
that it imposes “fees for the following activities and purpos‐
es,” and the activity for which the booking fee is imposed is
“posting bail or bond on any legal process,” including the
legal process that consists of a custodial arrest pursuant to a
warrant.
Another support for this analysis is the earlier reference
to the $30 service fee charged by Du Page County for arrang‐
ing bail for an arrested person. There is no suggestion that
the County’s fee is for the “service” of arresting. The fact that
the Village of Woodridge charges the identical fee is evi‐
10 No. 12‐2619
dence that like the County’s fee it’s a fee for arranging for a
bail bond—which is not to say the Woodridge police may
not be treating it as a fee for arrest, but that is a separate is‐
sue, taken up later.
The suggested interpretation does less violence to the
provision’s “plain meaning” than the Supreme Court’s in‐
terpretation of a statute which provided that “the Director of
Central Intelligence may, in his discretion, terminate the
employment of any officer or employee of the Agency
whenever he shall deem such termination necessary or ad‐
visable in the interests of the United States.” 50 U.S.C.
§ 403(c) (1982) (now codified at 50 U.S.C. § 3036(e)(1)). Alt‐
hough the Administrative Procedure Act bars judicial re‐
view of “agency action [that] is committed to agency discre‐
tion by law,” 5 U.S.C. § 701(a)(2), the Supreme Court held
that termination of employment by the Director of Central
Intelligence could be challenged if the challenge was based
on the Constitution. This interpretation was inconsistent
with the text of the employment statute read in conjunction
with the APA, but the Court adopted it “to avoid the ‘seri‐
ous constitutional question’ that would arise if a federal
statute were construed to deny any judicial forum for a col‐
orable constitutional claim.” Webster v. Doe, 486 U.S. 592, 603
(1988) (emphasis added). For a similar case and result, see
Johnson v. Robison, 415 U.S. 361, 365–67 (1974).
Granted, the Village does not invoke the doctrine of con‐
stitutional avoidance. It comes close, however, when it says
in its brief on rehearing that “the ‘Arrest Booking Guide‐
lines’ promulgated by the DuPage County Court provides
that for misdemeanor arrests the arrestee can and should ‘be
released on bond at the police station.’” In other words, the
No. 12‐2619 11
Village ties the fee to the bond. The arrested person pays $30
and gets bond. All the Village had to say in addition, to in‐
voke the doctrine clearly, would have been that the fee is for
the bond. In any event the purpose of the constitutional
avoidance doctrine is not to benefit a party, but to minimize
the occasions on which a court declares a legislative enact‐
ment unconstitutional. That declaration would be gratuitous
in this case because the plaintiff suffered no harm from the
alleged constitutional violation. He paid what in his county
is the standard bond fee charged by local government and
got the bond and spent no time in jail. What’s he complain‐
ing about?
Of course in a sense it’s too late to save the ordinance by
invoking the doctrine of constitutional avoidance; it’s been
repealed. But for all we know, there are similar ordinances
elsewhere. Remember that Du Page County charges a $30
bond fee, and (in the same section of its ordinance) it makes
the fee nonrefundable—so if the plaintiff had been charged
that fee and had later been acquitted, he would have had no
right to get it back. Isn’t it important to make clear that a
bond fee is not an arrest fee?
There is a further reason not to limit the constitutional
avoidance doctrine to enactments still in force. The only rea‐
son the plaintiff isnʹt asking for an injunction is that the Vil‐
lage repealed the ordinance, thus rendering that relief
(which the plaintiff had originally requested) moot. To pre‐
clude application of the constitutional avoidance doctrine
whenever it was sought to be applied to a repealed statute or
ordinance would disincentivize states and municipalities
from repealing their enactments lest repeal lead to an infer‐
ence that the previous legislation had been unconstitutional.
12 No. 12‐2619
We avoid creating such incentives in other settings. Fed. R.
Evid. 407 (prior remedial measures), for example, forbids
admitting evidence of a company’s redesigning a product to
prove that the previous design was defective. It would be
perverse to rule that had Woodridge not repealed the ordi‐
nance, the constitutional avoidance principle might save it,
but because it has been repealed the Village should be liable
for past damages.
As noted earlier, the doctrine of constitutional avoidance
functions to minimize friction between courts and legisla‐
tures (including state and municipal legislatures). The plain‐
tiff asks us to hold that a local government of Illinois is
committing grave violations of his constitutional rights—
rights that might conceivably (if implausibly) be traced all
the way back to Magna Carta. That imputation should not
lightly be leveled against a state government entity, even as
modest a one as the Village of Woodridge, Illinois. A saving
construction is available to our court; we should embrace it.
No court other than this court in this case has interpreted
Woodridge’s “booking fee” provision. The meaning of the
provision is of course an issue of Illinois law. But whether
we could certify the question of its meaning to the Supreme
Court of Illinois—a course, by the way, that neither party
urges—and if we could whether we should, are very doubt‐
ful. Begin with “could.” The Illinois court accepts only “Cer‐
tification of Questions of State Law from Certain Federal
Courts,” Ill. Sup. Ct. R. 20—and “state law” may not include
local ordinances. Our authority to certify questions to the
Supreme Court of Illinois is similarly limited to “questions
of state law.” 7th Cir. R. 52. True, the meaning of local ordi‐
nances was at issue in City of Chicago v. StubHub!, Inc., 624
No. 12‐2619 13
F.3d 363 (7th Cir. 2010), where we certified a question to that
court. The court accepted the certification, but the question
certified, and answered by the court, was “whether munici‐
palities may require electronic intermediaries to collect and
remit amusement taxes on resold tickets”—that is, whether
this practice was permitted by Illinois state law.
Whether we could certify to the Supreme Court of Illinois
a question about the meaning of a local ordinance, or not, we
shouldn’t do so in this case. The case doesn’t meet our
standards for certification, as laid out in State Farm Mutual
Automobile Ins. Co. v. Pate, 275 F.3d 666, 672 (7th Cir. 2001),
where we said that “‘certification is appropriate when the
case concerns a matter of vital public concern, where the is‐
sue will likely recur in other cases, where resolution of the
question to be certified is outcome determinative of the case,
and where the state supreme court has yet to have an oppor‐
tunity to illuminate a clear path on the issue.’ We also con‐
sider whether the issue is of interest to the state supreme
court in its development of state law, and the interest of fu‐
ture litigants in the clarification of state law” (internal cita‐
tions omitted). The fact that Woodridge’s ordinance has been
repealed (along with a similar ordinance of another Illinois
municipality, Naperville, see Roehl v. City of Naperville, 857 F.
Supp. 2d 707, 709–10 (N.D. Ill. 2012)) is decisive against certi‐
fication.
In these circumstances, given the decisions of the Su‐
preme Court of the United States that we’ve cited, our prop‐
er course is clear: it is to interpret the “booking fee” provi‐
sion of the ordinance as being limited to bail and bond cases.
This is not to condone—indeed it is to raise serious ques‐
tions concerning—the conduct of the Woodridge police. If
14 No. 12‐2619
they were charging the $30 fee to persons whom they arrest‐
ed who did not attempt to post bail or bond (maybe persons
who couldn’t or wouldn’t spare the money, or were confi‐
dent of being quickly released from jail because their arrest
had been a palpable mistake), those persons might well have
state or federal remedies, or both. Being arrested is not a
“service” to the person arrested! But the plaintiff in this case
did not want to risk time in jail. He posted bond and was re‐
leased. He paid for and received a valuable service. No con‐
stitutional right of his was violated.
It could be argued that even if the ordinance does not al‐
low the imposition of an arrest fee, as distinct from a fee for
a get‐out‐of‐jail‐card, a person who can prove that the Vil‐
lage of Woodridge has or had a policy of charging the fee to
anyone who is arrested is entitled to damages from the Vil‐
lage. But Markadonatos is challenging the ordinance, not a
policy that exists apart from it; for he is suing exclusively as
a member of the class of persons to whom the ordinance has
been applied, and the ordinance is constitutional if it author‐
izes a fee only for posting bond. Furthermore, even if the Vil‐
lage, or the police, have and enforce an unlawful policy of
imposing the fee on every arrested person, bond or no bond,
Markadonatos was not a victim of such a policy. He commit‐
ted theft yet avoided for $30 (plus the $150 cost of the bond,
as distinct from the Village’s help in getting him the bond)
having to spend any time in jail. He got a reasonable deal. If
the Village or the police have acted unlawfully toward other
persons, they are the persons who have standing to sue.
Giving the ordinance an interpretation that renders it
constitutional leaves no basis for the suit; and, incidentally,
by removing the constitutional obstacle leaves the state judi‐
No. 12‐2619 15
ciary free to interpret the ordinance in any future lawsuit.
We have no authority to give a state statute or local ordi‐
nance a definitive interpretation; that is the prerogative of
the state judiciary. But when a case properly before us pre‐
sents an issue of interpretation of state law, whether it is case
law or legislative law, our duty is to foresee as best we can
the interpretation that the state courts would adopt. The Illi‐
nois courts would doubtless prefer to interpret the pertinent
provision of the ordinance to preserve its constitutionality
rather than to adopt an interpretation that might render it
unconstitutional. But we preserve the state judiciary’s op‐
portunity to give or not give the ordinance a saving con‐
struction, as it wishes.
The case was properly dismissed on the pleadings, be‐
cause the ground for the dismissal was the answer to a ques‐
tion of law, namely the meaning of the relevant provision of
the ordinance. A suit premised on the distinct theory that the
Woodridge police commit a constitutional violation when
they collect a fee (unlawfully, because not authorized by the
ordinance as we interpret it) for an arrest that does not result
in the posting of bail or bond might succeed, but, as we have
emphasized, it is not this case. Whatever the situation of
other arrested persons, Markadonatos himself received a rea‐
sonable fee for a valuable service. What is his gripe? What
damages has he suffered? What possible relief could a court
grant him?
A note in closing about the alternative ground for dis‐
missal urged in Judge Sykes’s concurring panel opinion: lack
of standing because of absence of an injury remediable by
the court. Article III of the Constitution of course makes
standing a prerequisite to maintaining a suit in a federal
16 No. 12‐2619
court. Judge Sykes pointed out that if the objection to the or‐
dinance was, as it seemed to be, that it imposed a fee for be‐
ing arrested with or without probable cause, the plaintiff
could not make the objection a basis for a suit in federal
court, because he was arrested with probable cause. There
was an echo of Judge Sykes’s concern in Judge Hamilton’s
panel dissent when he said that the constitutional flaw that
he discerned in the ordinance was “easy to correct: make the
fee payable upon conviction of a crime, as part of the court
costs authorized by law after the full procedural protections
of the criminal justice system.” 739 F.3d at 993.
The plaintiff received those full procedural protections
but only after paying the fee. Yet what difference would it
have made to him had he paid it after rather than before re‐
ceiving them? He was arrested on January 8, 2011, and dis‐
charged from supervision on April 19, 2012. By then and
probably earlier he would have, under Judge Hamilton’s
conception of lawful procedure, been lawfully required to
pay the $30 fee. Suppose he had instead paid it on January 8,
2012. Then, at a generous discount rate of 10 percent per an‐
num, he incurred a present‐value loss of $2.73 ($30.00 –
$27.27) by having to pay in advance. De minimis non curat lex.
Judge Sykes’s approach, at least if the $2.73 loss of pre‐
sent value is disregarded, would resolve the case on grounds
of standing, requiring dismissal without prejudice. The
slightly different approach taken in this opinion implies
dismissal on the merits (as in the district court): the ordi‐
nance is constitutional, and, because the plaintiff posted
bond and thus came within the ordinance so interpreted,
was not violated and no constitutional right of the plaintiff
was infringed.
No. 12‐2619 17
EASTERBROOK, Circuit Judge, joined by Circuit Judge
TINDER, concurring in the judgment. I agree with Judge
Sykes that Markadonatos lacks standing to contest the appli‐
cation of the ordinance to persons arrested without probable
cause and to contend that the Village needed to provide
hearings. “[A] person to whom a statute may constitutional‐
ly be applied may not challenge that statute on the ground
that it may conceivably be applied unconstitutionally to oth‐
ers in situations not before the Court.” New York v. Ferber, 458
U.S. 747, 767 (1982). See also Sabri v. United States, 541 U.S.
600, 608–10 (2004). But I do not join her opinion, which pro‐
poses to dismiss the entire suit for want of a justiciable con‐
troversy, because Markadonatos has standing to contest the
ordinance’s application to a person arrested with probable
cause, as he was. He maintains (and Judge Hamilton con‐
cludes) that the fee is constitutionally obnoxious even when
the arrest is supported by probable cause and followed by a
conviction. That contention is justiciable.
Judge Posner proposes to duck that question by holding
that the fee is attributable, not to the arrest, but to a person’s
release on bail. I agree with his approach to the extent of say‐
ing that, if a state court could save a statute by reasonably
giving it a particular construction, a federal court ought not
take the matter out of the state’s hands by peremptorily de‐
claring the statute unconstitutional “on its face”—which is to
say, in every possible application. But we cannot do the con‐
struing, after the fashion of Bond v. United States, 134 S. Ct.
2077 (2014), which recently indulged a strained reading of a
federal statute in order to avoid a constitutional problem.
Only a state court can give an authoritative limiting con‐
struction to a state statute.
18 No. 12‐2619
If I had to make an independent assessment of the ordi‐
nance’s meaning, I would agree with Judge Posner. But our
task is to resolve the parties’ dispute. Neither side has asked
us to read the ordinance as applicable only to bail or to en‐
sure that the state judiciary has room to give the ordinance a
limiting construction. Instead they agree that the ordinance
imposes a $30 fee on all arrests. The only justiciable subject is
whether the Constitution allows the ordinance’s application
to someone arrested on probable cause. And to that question
the answer is yes.
Probable cause justifies substantial burdens. Someone ar‐
rested on probable cause can be taken to the stationhouse,
booked, and held pending bail, even if the offense is punish‐
able only by a fine. See Atwater v. Lago Vista, 532 U.S. 318
(2001). A person taken into custody can be held as long as 48
hours before seeing a magistrate. See Riverside v. McLaughlin,
500 U.S. 44 (1991). Probable cause, reflected in a grand jury’s
indictment, justifies holding a defendant in custody pending
trial. See Costello v. United States, 350 U.S. 359 (1956); Gerstein
v. Pugh, 420 U.S. 103 (1975). Probable cause also can justify
the seizure of the suspect’s assets pending forfeiture, a step
that may make it impossible for the suspect to hire his pre‐
ferred lawyer and might lead to a conviction, when a better
defense could have produced an acquittal. See Kaley v. United
States, 134 S. Ct. 1090 (2014).
All of these losses vastly exceed a $30 fee. If probable
cause justifies months in jail and an inferior lawyer, what
sense could it make to say that a $30 fee is constitutionally
excessive? True, someone arrested on probable cause does
not get the $30 back if he prevails at trial—but neither does
he get back the value of time spent in jail or the value of the
No. 12‐2619 19
difference between a top‐notch lawyer and the average qual‐
ity provided under the Criminal Justice Act. It won’t suffice
to say, as Judge Hamilton’s dissent does, that probable cause
isn’t enough to justify permanent deprivations of property. It
does justify deprivations of liberty; why is property more sac‐
rosanct?
The Due Process Clause applies to both liberty and prop‐
erty. When there is a distinction, property receives the lesser
protection. The burden at a criminal trial, where liberty is at
issue, is “beyond a reasonable doubt”; the burden at a civil
trial involving property, by contrast, is “preponderance of
the evidence.” In a criminal trial that can end in a sentence of
imprisonment, the defendant is entitled to counsel at public
expense if he cannot afford a lawyer; in a civil trial, by con‐
trast, a defendant who cannot afford a lawyer must repre‐
sent himself. The list could be extended, but the point has
been made. Liberty receives the greater protection. So the
cases establishing that probable cause suffices to deprive a
person of liberty for months pending trial show that there
can’t be a problem with a $30 fee.
More than that. I do not think that the Due Process
Clause has anything helpful to say about the claim Marka‐
donatos presents. The Constitution requires due process, yet
for reasons the panel explains (and Judge Sykes reiterates)
Markadonatos’s demand for a hearing is unavailing. He
might have been entitled to a hearing (or some other infor‐
mal process, see Goss v. Lopez, 419 U.S. 565 (1975)) adequate
to separate persons arrested with probable cause from per‐
sons arrested without, but he has never asked for that sort of
procedure. He maintains, instead, that the ordinance impos‐
es a fee on every arrest, making probable cause irrelevant.
20 No. 12‐2619
Yet he concedes that he was arrested. On his own view of the
ordinance, there is nothing to hold a hearing about. Instead
his principal argument comes under the banner of “substan‐
tive due process.”
The Supreme Court has concluded that substantive due
process is applicable only when the government deprives a
person of a “fundamental” right. See Washington v. Glucks‐
berg, 521 U.S. 702, 719–23 (1997). Glucksberg held that assist‐
ed suicide is not a fundamental right. Markadonatos does
not contend that the loss of $30 is more important than the
power to choose the time and manner of one’s death—or any
of the other asserted rights that the Supreme Court has held
not to be “fundamental.” He argues instead that there is a
“fundamental right” not to be deprived of anything “arbitrar‐
ily,” and he maintains that the $30 fee is “arbitrary.”
That is not an application of the Glucksberg framework; it
elides the need to find a “fundamental right.” If Markadona‐
tos were correct, a court would never ask whether the assert‐
ed interest is “fundamental.” Instead it would go straight to
the question whether the state has acted “arbitrarily,” which
is to say, would decide every claim on the merits. Glucksberg
requires, however, an initial step: ascertaining whether the
interest at stake is “fundamental.” No decision of the Su‐
preme Court so much as hints that a small fee is a “funda‐
mental interest.”
Maintaining the difference between “fundamental” and
other interests is vital, lest we collapse the distinction be‐
tween substantive due process and equal protection. The
equal‐protection question is whether it is possible to imagine
a rational basis for the rule. See, e.g., Usery v. Turner Elkhorn
Mining Co., 428 U.S. 1 (1976) (describing the rational‐basis
No. 12‐2619 21
standard and applying it to a statute that imposed costs far
exceeding $30). Markadonatos does not contend that the or‐
dinance lacks a rational basis. Arrests may be followed by
release without charge, release on bail, or incarceration. Any
of these costs the Village at least $30—or so a rational legisla‐
ture could conclude. Both release without charge and release
on bail entail lots of paperwork and the time of police offic‐
ers, if not judges and lawyers; incarceration is costly because
prisoners must be fed, supervised, and provided with medi‐
cal care. Requiring people to reimburse others for the costs
they impose on them is proper. (Recall that Markadonatos
was arrested on probable cause, which means that his own
misconduct caused whatever costs the Village incurred.)
Markadonatos has invoked substantive due process in
the hope that we will demand more than a rational basis from
the Village. We should not oblige. Glucksberg separates the
domains of equal protection and substantive due process;
this controversy is on the equal protection side.
If there is something wrong with a fee of $30 for being ar‐
rested, what are we to make of the $400 fee for filing a suit in
federal district court? If the arrest was without probable
cause, the victim is entitled to damages. A prevailing party
will recover costs, including the filing fee, from the defend‐
ant, but if the court holds that the arrest was supported by
probable cause, then the suspect is out not only the $30 for
being arrested but also the $400 for trying to show that he
should not have been arrested. It would be absurd to say
that the $30 fee violates the Constitution but that the $400 fee
does not. And an assertion that a suspect incurs the $400 fee
voluntarily by filing suit is hollow: the controversy begins
not with the suit but with the arrest, which is involuntary
22 No. 12‐2619
from the perspective of Markadonatos or any other suspect.
The only way to contest the arrest (or for that matter the ar‐
rest fee) is to pay a $400 filing fee in federal court. Probable
cause for the arrest means that a plaintiff such as Marka‐
donatos does not get the $400 back. If probable cause for ar‐
rest supports a $400 fee, why not a $30 fee?
Or consider the fee a village imposes to recover a towed
car. These fees often are in the range of $100. No one wants
his car towed any more than he wants to be arrested. And
cars may be towed without good cause, just as people may
be arrested without good cause. It seems more likely that a
village would impose a steep towing fee as a means of gen‐
erating revenue (which would increase the incentive to tow
even properly parked cars) than that it would impose a
modest arrest fee. Yet at oral argument counsel for Marka‐
donatos acknowledged that a towing fee is valid. What he
could not explain is why the Constitution allows a $100 fee
after a car is taken to the pound but no fee at all after a per‐
son is taken to the stationhouse.
I conclude that Markadonatos has standing to challenge
the collection of a fee from a person arrested on probable
cause, because that’s the category he is in and if he wins he
gets the $30 back. But his argument fails on the merits. I
therefore concur in the judgment.
No. 12-2619 23
SYKES, Circuit Judge, dissenting. The ground has shifted
under this case since we granted rehearing en banc.
• Three members of the court now propose to affirm by
invoking the doctrine of constitutional avoidance, an
option not raised by the parties. See ante, at 7–15
(Posner, J., concurring in the judgment).
• Four members of the court would reverse and remand
on the merits, though on a different analysis than
originally argued by the plaintiff or adopted by the
panel dissent. Compare post, at 45–49 (Hamilton, J.,
dissenting), with Markadonatos v. Village of Woodridge,
739 F.3d 984, 994–1000 (7th Cir. 2014) (Hamilton, J.,
dissenting), and Appellant’s Br. at 9–28, 33–40, ECF
No. 22 (panel brief).
• For my part, en banc review has reinforced my earlier
doubts about the plaintiff’s standing. I would vacate
and remand with instructions to dismiss for lack of
jurisdiction.
• Judges Easterbrook and Tinder substantially agree with
me that the plaintiff lacks standing, although they
conclude that a narrow aspect of the case is justiciable.
See ante, at 17 (Easterbrook, J., concurring in the judg-
ment). But they also disagree with Judge Posner’s use of
the constitutional-avoidance doctrine and instead
would hold that the justiciable remainder is not viable
as a due-process claim, as the plaintiff has argued it, but
only as an equal-protection claim, which fails on the
merits. See id. at 18–22.
In short, the en banc court cannot agree on what questions
the case raises, whether the plaintiff is the right person to raise
24 No. 12-2619
them, whether they have been properly preserved, or what
doctrinal framework applies. Our fractured nondecision
suggests that this case was a poor vehicle for resolving the
constitutionality of a jail booking fee.1
* * *
As the case was originally presented to the panel, the
plaintiff raised a vaguely conceptualized due-process challenge
to Woodridge’s booking fee—a $30 fee the Village collects from
everyone who is arrested and booked at its jail. Never mind the
hazy briefing, just describing this fee is enough to trigger alarm
and indignation. Can a municipality really charge a fee simply
for being arrested and booked at its jail? Really?
Maybe not, but the panel majority concluded that the
plaintiff lacks standing on the key “substantive” aspect of his
due-process claim—his argument that it’s irrational to impose
the fee on those who are wrongly arrested—because he was
1
Our per curiam affirmance is a nonprecedential default disposition
necessitated by our inability to muster a majority for a judgment, akin to an
affirmance by an equally divided court. See, e.g., Warner-Lambert Co. v. Kent,
552 U.S. 440 (2008); see also Neil v. Biggers, 409 U.S. 188, 191–92 (1972)
(explaining that an equally divided court leaves the lower court’s judgment
in force because “it is the appellant or petitioner who asks the Court to
overturn a lower court’s decree,”); see also id. at 192 (explaining that an
affirmance by an equally divided court has no precedential effect); Durant
v. Essex Co., 74 U.S. (7 Wall.) 107, 112 (1868) (“If the judges are divided, the
reversal cannot be had, for no order can be made. The judgment of the court
below, therefore, stands in full force. It is, indeed, the settled practice in
such case to enter a judgment of affirmance; but this is only the most
convenient mode of expressing the fact that the cause is finally disposed of
in conformity with the action of the court below, and that that court can
proceed to enforce its judgment. The legal effect would be the same if the
appeal, or writ of error, were dismissed.”).
No. 12-2619 25
lawfully arrested on probable cause. See Markadonatos, 739 F.3d
at 988–89 (majority op.); id. at 992–93 (Sykes, J., concurring).
That remains my view. And I’m now convinced that the
plaintiff lacks standing on the “procedural” aspect of his claim
as well.
The booking fee is listed in the Woodridge Village Code as
a line item in an otherwise unremarkable schedule of adminis-
trative fees. In its entirety, the ordinance reads as follows:
Booking fee: When posting bail or bond on any
legal process, civil or criminal, or any custodial
arrest including warrant. $30.00
WOODRIDGE, ILL., CODE § 5-1-12A (2013), repealed by Ordinance
of Mar. 13, 2014, Ord. No. 2014-11. The terse language is not
unusual given its placement in a schedule of administrative
fees promulgated by a small municipality.
Jerry Markadonatos was arrested for shoplifting and taken
to the Woodridge jail. During the booking process, he was
given written notice of the $30 booking fee, and he paid it
immediately, before bonding out of jail. He was thereafter
charged in DuPage County Circuit Court with retail theft, a
state misdemeanor offense. He pleaded guilty as charged, was
found guilty, and was sentenced to a 12-month term of
supervision and ordered to pay various court costs and
criminal-justice fees.
As Judge Posner notes, the parties dispute the legal
significance of the term of supervision, which apparently was
imposed under a pretrial diversionary program that permits
the court to dismiss the case upon the defendant’s successful
completion of supervision. See 730 ILL. COMP. STATS. 5/5-6-1(c),
5/5-6-3.1(e), 5/5-6-3.1(f). The dispute is immaterial. What
26 No. 12-2619
matters here is that Markadonatos was arrested on probable
cause, was charged with retail theft, pleaded guilty, and served
a term of supervision for that crime. Everyone agrees on these
facts.
While he was still on court supervision, Markadonatos sued
the Village under 42 U.S.C. § 1983, accusing it of violating his
right to procedural and substantive due process by collecting
the booking fee without a hearing at which he could contest it.
He sought the full range of remedies for the claimed constitu-
tional violation: a declaration that the booking-fee ordinance is
unconstitutional, an injunction enjoining Woodridge from
enforcing it, and damages. He brought the suit on behalf of
himself and a class of “[a]ll individuals who were deprived of
their property pursuant to Woodridge Municipal Ordinance
5-1-12(A) without being provided the constitutionally guaran-
teed due process of law.” The district court dismissed the case
on the pleadings.
In his initial brief on appeal, Markadonatos conflated the
procedural and substantive aspects of his due-process claim.
He argued that the fee is procedurally unconstitutional because
the Village collects it during the booking process without a
predeprivation hearing to test the validity of the arrest or at
least a postdeprivation process by which those who are
wrongfully arrested, never charged, or are found not guilty
may obtain a refund. This way of framing the procedural
challenge requires a prior conclusion about the substance of the
ordinance. By its terms, the ordinance does not make the fee
contingent on a valid arrest or successful prosecution. To
resolve the argument about inadequate process, the court
would first have to conclude that the booking fee is substan-
tively unconstitutional as applied to people who are wrongfully
No. 12-2619 27
arrested, never charged, or are found not guilty. But
Markadonatos isn’t in any of those groups. He concedes that he
was lawfully arrested on probable cause, was in fact charged
with retail theft, and pleaded guilty as charged.
So the panel majority concluded that Markadonatos lacked
standing to challenge the fee as a violation of substantive due
process and proceeded to analyze the procedural due-process
claim without the embedded substantive premise, rejecting it
under the balancing test of Mathews v. Eldridge, 424 U.S. 319
(1976). See Markadonatos, 739 F.3d at 988–91; id. at 992–93
(Sykes, J., concurring). Judge Hamilton dissented, construing
the booking fee as “in substance a criminal fine,” id. at 993
(Hamilton, J., dissenting), which of course cannot be imposed
without an adjudication of guilt, id. at 994–99.
Markadonatos then obtained new counsel and sought
rehearing en banc. The court granted rehearing and ordered
the parties to submit new briefs on (among other things) the
question of standing and the fee/fine distinction raised in Judge
Hamilton’s dissent. In this new round of briefing, Woodridge
pressed harder on the standing problem, and the parties
agreed that the booking fee is indeed a fee, not a fine.
Meanwhile, the Village quietly repealed the booking fee.
No one bothered to tell the court about this important develop-
ment, perhaps because the claim for damages remains. But the
repeal moots the claim for injunctive relief.
Now, in yet another twist, three members of the court
propose to resolve the sole remaining live claim on a new
ground never raised by the parties. Invoking the doctrine of
constitutional avoidance, my colleagues interpret the ordi-
nance as a fee for bonding out of jail. See ante, at 7–15 (Posner,
J., concurring in the judgment). Having thus “saved” the (now
28 No. 12-2619
repealed) ordinance via a narrowing construction, they
conclude that the Village committed no constitutional violation
(because Markadonatos bonded out of jail) and therefore reject
the claim on the merits. Id. at 16.
I certainly agree that the ordinance is not clearly drafted.
And the proposed limiting construction may be a reasonable
one. But throughout this litigation, the parties have agreed that
Woodridge imposes the fee on all persons arrested and booked
at its jail, regardless of whether they remain in custody, post
bail, or bond out. Granted, there is some authority for invoking
the doctrine of constitutional avoidance sua sponte. See, e.g.,
Escambia County v. McMillan, 466 U.S. 48, 51–52 (1984); Edward
J. DeBartolo Corp. v. NLRB, 463 U.S. 147, 158 (1983); Youakim v.
Miller, 425 U.S. 231, 234–36 (1976); see also Adrian Vermeule,
Saving Constructions, 15 GEO. L.J. 1945, 1948–49 (1997) (discuss-
ing procedural avoidance and collecting cases). But that
approach is not open to us here for the reasons Judge Hamilton
explains at length in his dissent, see post, at 44–45 (Hamilton, J.,
dissenting), and Judge Easterbrook also mentions in his
concurrence, see ante, at 17–18 (Easterbrook, J., concurring in
the judgment). I agree with them on this point and have
nothing to add.
It’s worth reiterating, however, that the claim for injunctive
relief is moot. A “saving” construction is a remedial device to
avoid striking a statute as unconstitutional, but here the
challenged ordinance is no longer on the books. A limiting
construction can’t be applied retrospectively and used as a
basis to reject a claim for damages—at least not where, as here,
the parties agree that the statute was uniformly interpreted and
applied more broadly.
* * *
No. 12-2619 29
On closer review I’ve concluded that Markadonatos lacks
standing on both the substantive and procedural aspects of his
due-process claim. This is, of course, a jurisdictional inquiry
that must precede consideration of the merits. See
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006); Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992); see also U.S.
CONST. art. III, § 1.
The familiar requirements of Article III standing are these:
(1) the plaintiff must have suffered a concrete “injury in fact”;
(2) the injury must be fairly traceable to the defendant’s
allegedly unlawful conduct; and (3) “it must be likely, as
opposed to merely speculative, that the injury will be re-
dressed by a favorable decision.” Lujan, 504 U.S. at 560–61
(internal quotation marks omitted).
There’s no doubt that the first requirement is satisfied here.
Markadonatos paid the $30 booking fee. The problem arises at
step two of the standing inquiry. As Markadonatos has framed
his constitutional claim—in both its procedural and substan-
tive aspects—his injury is not fairly traceable to the Village’s
allegedly unconstitutional conduct.
Although his arguments have evolved during the course of
this appeal, at this point Markadonatos offers three basic
reasons why the booking-fee ordinance is unconstitutional:
(1) the fee is collected without a predeprivation hearing or a
postdeprivation process to obtain a refund; (2) the fee is
arbitrary and irrational as applied to those who are unlawfully
arrested;2 and (3) the fee is arbitrary and irrational as applied
2
See Appellant’s Br. at 30, ECF No. 62 (“Woodridge’s scheme is ‘irrational’
and ‘arbitrary’ because it forces people who are illegally arrested to
(continued...)
30 No. 12-2619
to those who are never charged or are found not guilty.3 The
first is an argument about procedure; the other two address the
substantive terms of the ordinance.
Because Markadonatos concedes probable cause to arrest
and in fact admitted his guilt in court, he can’t press an
argument that the fee is irrational as applied to innocent or
wrongfully arrested people. See Sickles v. Campbell County,
501 F.3d 726, 732 (6th Cir. 2007) (holding that plaintiffs who
pleaded guilty lack standing to challenge the county’s collec-
tion of jail costs as applied to those who are “arrested, booked
and immediately released because of mistake”) (internal
quotation marks omitted); ante, at 17 (Easterbrook, J., concur-
ring in judgment). So the substantive component of the due-
process claim drops out of the case because the plaintiff lacks
standing to challenge the fee on this basis.
The remaining argument about defective process also relies
on a claim about substantive flaws in the ordinance, which
affects the analysis of the plaintiff’s standing to challenge the
fee on procedural due-process grounds. As I’ve explained,
Markadonatos’s claim about deprivation of process rests on a
premise that the fee cannot be imposed without a predepriva-
tion hearing to test the validity of the arrest, or alternatively,
that the Village must at least provide some postdeprivation
procedure so that those who are wrongfully arrested, never
charged, or found not guilty may obtain a refund. Again, this
2
(...continued)
subsidize the illegal deprivation of their liberty.”).
3
See id. at 31 (“[T]he only reason for Woodridge to link its fee to arrests
rather than to convictions is to take money from the innocent in addition to
the guilty.”).
No. 12-2619 31
argument ties the procedural due-process claim to a conclusion
about the substantive constitutionality of the ordinance.
Restated, the argument is essentially this: Because the fee is not
rational as applied to those who are wrongfully arrested, never
charged, or found not guilty, a hearing is necessary to prevent
its erroneous application to people in these groups.
But Markadonatos doesn’t challenge the validity of his
arrest and has admitted his guilt in court. That is, he does not
contest any facts that would be relevant to the hearing that he
claims the Constitution requires. As such, he has suffered no
harm that is fairly traceable to the alleged deprivation of
process about which he complains.
The standing problem in this case straddles Codd v. Velger,
429 U.S. 624 (1977), and Carey v. Piphus, 435 U.S. 247 (1978),
two cases that were decided a year apart but seem to point in
opposite directions. In Codd the Supreme Court held that a
person cannot make a procedural due-process claim when he
does not assert that a factual dispute exists for a due-process
hearing to resolve. The case involved a police officer who lost
his job during the probationary phase of his employment.
429 U.S. at 624–25. His personnel file contained a report that he
had attempted suicide, which he claimed hurt his job prospects
at other law-enforcement agencies. Id. at 626. Although as a
probationary employee he did not have a property interest in
his job, he claimed that the stigmatizing nature of the report
about his suicide attempt entitled him to a hearing. Id. The
Court granted certiorari to determine whether the case came
within the doctrine established in Board of Regents v. Roth,
408 U.S. 564 (1972), and Bishop v. Wood, 426 U.S. 341 (1976).
In the end, however, the Court found it unnecessary to
decide this question because the officer had not asserted that
32 No. 12-2619
the report of his suicide attempt was false. Codd, 429 U.S. at
627. The Court held that “if the hearing mandated by the Due
Process Clause is to serve any useful purpose, there must be
some factual dispute between an employer and a discharged
employee which has some significant bearing on the em-
ployee’s reputation.” Id. The officer had claimed a right to a
hearing to “clear his name.” Id. The Court concluded that
because “he does not challenge the substantial truth of the
material in question, no hearing would afford a promise of
achieving that result for him.” Id. at 627–28.
In Carey, decided the following year, the Supreme Court
held that a violation of procedural due process is actionable
without proof of actual damages. 435 U.S. at 266–67.
Elementary and secondary school students sought damages for
deprivation of their due-process rights after they were sus-
pended without a hearing for violating school rules. The Court
held that the students were not required to prove actual
damages: “Even if [the] suspensions were justified, and even
if they did not suffer any actual injury, the fact remains that
they were deprived of their right to procedural due process.”
Id. at 266. The Court remanded the case with specific instruc-
tions to the district court: If the court concluded that the
suspensions were valid under school rules, the claim for
compensatory damages would fail, but the students were
nonetheless entitled to “nominal damages not to exceed one
dollar” for the deprivation of process. Id. at 267.
The results in Codd and Carey seem contradictory, but the
Tenth Circuit persuasively explained the difference between
the two cases in Rector v. City & County of Denver, 348 F.3d 935,
944 (10th Cir. 2003). Rector involved a challenge to the parking-
enforcement regime in the City of Denver. The City’s standard
No. 12-2619 33
parking ticket form notified the recipient that the parking fine
must be paid or contested within 20 days and also warned that
if payment was not received within that 20-day period, certain
late fees automatically applied. Id. at 937–38. The plain-
tiffs—two people who were ticketed for parking violations and
paid the fines—sued the City claiming that the late-fee notice
was misleading because in actuality, “as long as the recipient
appears before the parking referee within twenty days, the late
fee is not imposed.” Id. at 942. They complained that the
“categorical” language on the face of the ticket “pressures
recipients to pay rather than challenge the ticket” and thus
violates due process because it “restricts a putative violator’s
opportunity to be heard and to present objections.” Id.
But the plaintiffs in Rector did not assert any basis on which
they would have contested their tickets. This cast significant
doubt on their standing to sue for interference with their
procedural rights. Reconciling Codd and Carey, the court
extrapolated an important standing principle in procedural
due-process cases:
The distinction between Codd and Carey lies
in adopting an ex ante perspective on the right to
due process hearings. The Carey plaintiffs denied
the substance of the underlying allegations made
against them. Their injury, viewed ex ante, is that
they were denied the opportunity to convince
school administrators that they should not be
suspended. Thus while ex post, their loss on the
merits precluded any claim for compensatory
damages, the denial of the opportunity to sway
school officials toward their cause constituted an
injury in fact. By contrast, the plaintiff in Codd
34 No. 12-2619
did not challenge the substantial truth of the
damaging material set forth in his file. Even by
his own reckoning of the facts, the hearing
would not have vindicated any rights.
Rector, 348 F.3d at 944 (internal citations omitted).
The Rector plaintiffs were more like the police officer in
Codd than the students in Carey. They did not assert any
grounds on which they would have contested their parking
tickets. So the Tenth Circuit concluded that they lacked
standing to claim a violation of their hearing rights. Their
injuries—payment of the parking fines—were not fairly
traceable to the alleged defect in the notice; their hearing rights
were unaffected “because there was nothing for a hearing to
decide.” Id. at 945.
As Rector explains, under Carey a person claiming a
violation of procedural rights may have an injury in fact
regardless of whether he would have prevailed at the hearing
that is the subject of his claim. “Parties may suffer injury in fact
from defective procedures even if, at the end of the day, they
would not have prevailed on the merits.” Id. at 943; see also
Buckley v. Fitzsimmons, 20 F.3d 789, 796 (7th Cir. 1994) (noting
that a “denial of procedural rights is a form of injury”). But the
standing inquiry does not end with a finding of injury in fact.
Codd shows that in a due-process case, the plaintiff must also
allege that he would have challenged something at the hearing
that he contends is constitutionally required. See Rector,
348 F.3d at 944 (citing Michael H. v. Gerald D., 491 U.S. 110, 127
n.5 (1989) (plurality opinion) (“We cannot grasp the concept of
a ‘right to a hearing’ on the part of a person who claims no
substantive entitlement that the hearing will assertedly
No. 12-2619 35
vindicate.”)). Otherwise his injury is not “fairly traceable” to
the alleged deprivation of process.
Here, Markadonatos does not wish to contest any facts that
would be relevant to the hearing he claims is constitutionally
required; he concedes that he was lawfully arrested for retail
theft and admitted his guilt in court. Accordingly, his injury is
not fairly traceable to the alleged constitutional violation on
which his claim rests.
Judge Posner does not directly address the plaintiff’s
standing, but the issue can’t be skipped over or summarily
brushed aside. See DaimlerChrysler Corp., 547 U.S. at 341 (“If a
dispute is not a proper case or controversy, the courts have no
business deciding it, or expounding the law in the course of
doing so.”).
In his concurrence Judge Easterbrook writes that
Markadonatos has standing to raise a substantive challenge to
the ordinance, but only to the extent that he “maintains … that
the fee is constitutionally obnoxious even when the arrest is
supported by probable cause and followed by a conviction.”
See ante, at 17 (Easterbrook, J., concurring in the judgment). But
Markadonatos hasn’t advanced a claim that municipalities are
constitutionally forbidden to assess a booking fee on people in
this category. He has never argued that booking fees are
arbitrary and irrational in all circumstances, quite apart from
the processes used to collect them. Rather, the “substantive”
dimension of his due-process claim has always been that the
fee cannot rationally be applied to persons who are wrongfully
arrested or innocent.4 Indeed, he expressly accepts that it’s
4
See Appellant’s Br. at 28–29, ECF No. 62 (“It is indisputable that the
(continued...)
36 No. 12-2619
rational to impose a booking fee on those who are found
guilty.5
This brings me to a final point about Judge Hamilton’s
analysis of standing, which suggests that Markadonatos and
everyone else who paid the booking fee may challenge it
simply by virtue of having paid it—in other words, that the
payor’s personal circumstances just do not matter. That’s true
in general for facial constitutional challenges. See Ezell v. City
of Chicago, 651 F.3d 684, 697 (7th Cir. 2011) (“In a facial consti-
tutional challenge, individual application facts do not matter.
Once standing is established, the plaintiff’s personal situation
becomes irrelevant.”). And it’s also true that Markadonatos
asserts that he is mounting a facial challenge to the fee. But he
never actually does so. As I’ve explained, both dimensions of
his due-process claim rest on the substantive premise that the
fee is irrational as applied to those who are wrongfully
arrested or innocent.
4
(...continued)
government cannot impose fees on persons arrested for no reason, for
invidious reasons, or simply to harass the arrestee. … Some separate
showing is therefore constitutionally necessary to justify charging an
arrestee for the hassle of being arrested. Whatever that constitutionally
required showing might be—probable cause, preponderance of the
evidence, guilt beyond a reasonable doubt—there is no question that
Woodridge will be unable to make that showing for many people whom its
police arrest, such that charging those arrestees a $30 fee is constitutionally
unjustified.”).
5
See id. at 26 (“Woodridge could either incorporate an assessment of the
fee’s legitimacy into the probable cause hearing or could simply add the fee
to the panoply of costs imposed on those who are criminally convicted or
plead guilty.”).
No. 12-2619 37
To repeat, Markadonatos does not argue that the substan-
tive component of the Due Process Clause prohibits Wood-
ridge from requiring lawfully arrested and actually guilty
persons to pay a booking fee. He argues only that substantive
due process prohibits the Village from requiring an unlawfully
arrested or actually innocent person to pay a booking fee. And
his claim about defective process posits that a hearing is
constitutionally required to ensure that the payor has at least
been lawfully arrested (because it’s irrational to require an
unlawfully arrested or innocent person to pay). These argu-
ments are contingent, not categorical, and as such they require
a plaintiff with the relevant characteristics to connect the injury
in fact—here, payment of the fee—to the alleged constitutional
wrong. That’s what the traceability element in standing
doctrine insists upon.
Because Markadonatos lacks standing to bring the claims
he has actually raised, I would vacate and remand with
instructions to dismiss the case for lack of jurisdiction.
38 No. 12‐2619
HAMILTON, Circuit Judge, joined by WOOD, Chief Judge,
and ROVNER and WILLIAMS, Circuit Judges, dissenting. I re‐
spectfully dissent from the affirmance of the dismissal of this
case, though I share a good deal of common ground with the
opinion by Judge Posner. We agree that being arrested is not
a service to the person arrested. We agree that the plaintiff
has standing to challenge the arrest fee policy despite having
pled guilty to the offense for which he was arrested. We also
agree that there is a critical constitutional difference between
an arrest fee and an administrative fee for bail.
Our point of disagreement is that, in the face of a plainly
unconstitutional fee for the privilege or “service” of being
arrested, Judge Posner has chosen not to decide the case that
has actually been presented to us. His opinion chooses in‐
stead to decide a different case, one shaped by rewriting the
ordinance and overlooking the plaintiff’s allegations. That
approach avoids the troubling due process analysis of the
now‐vacated panel opinion, but at the cost of disregarding
basic rules of civil procedure and misusing the doctrine of
constitutional avoidance.
Judge Posner’s opinion finds a difference between the
meaning of the ordinance and the village’s actual practice of
collecting arrest fees. Even if that’s correct, it would not war‐
rant dismissal. The plaintiff alleged in his complaint that his
rights were violated by the village’s actual policy and prac‐
tice of charging the fee for arrest, whether or not that policy
complied with the ordinance. Nor is there any factual dis‐
pute about how the policy functioned in practice. Through
three years of litigation, the village has said over and over
that it in fact imposed the arrest fee on everyone who was
arrested simply because they were arrested.
No. 12‐2619 39
Judge Posner’s opinion has transformed an unconstitu‐
tional fee for going into jail into something it never was in
practice: an administrative fee for getting out of jail. We
should instead decide the case the parties have actually pre‐
sented and hold the arrest fee unconstitutional. The Due
Process Clause of the Fourteenth Amendment does not al‐
low a state or local government to deprive a person perma‐
nently of even a modest amount of his property based on
nothing but the unreviewable say‐so of one police officer.
The victim of such an arbitrary policy has standing to chal‐
lenge it at the moment his property is taken. That remains
true regardless of whether the deprivation might have been
constitutional under a very different ordinance or policy that
would have imposed the fee on a different basis, such as
posting bail or being convicted of a crime.
I. The Transformation of the Case
A Woodridge police officer arrested plaintiff Jerry
Markadonatos for shoplifting. When he was booked into the
local jail, he was charged an “Arrest/Booking Fee” of $30.
The fee applied to every arrest, period. It applied regardless
of whether the arrestee posted bail, regardless of whether he
was ever prosecuted, regardless of the outcome of any pros‐
ecution, and even regardless of the validity of the arrest.
Plaintiff paid the money and then sued for its return, alleg‐
ing that the fee deprived him and all other arrestees of prop‐
erty without due process of law.
The full language of the ordinance, repealed shortly be‐
fore we granted rehearing en banc, provided: “The fees for
the following activities and purposes shall be as follows: (A)
Booking fee: When posting bail or bond on any legal pro‐
cess, civil or criminal, or any custodial arrest including war‐
40 No. 12‐2619
rant—$30.00.” Judge Posner is correct that the ordinance was
not well‐drafted. But throughout the litigation, the parties
have agreed that a person had to pay the fee just because he
was arrested. That’s how the ordinance was administered,
and that’s the case presented to us.
Judge Posner’s opinion concludes, however, that the
plaintiff, the village, their lawyers, the district judge, and the
three‐judge panel have all misunderstood the ordinance. In
our en banc oral argument, the suggestion was raised for the
first time that the ordinance could be read as imposing a fee
only when a person posted bail or bond, regardless of
whether it was for a custodial arrest, a warrant, or any other
form of legal process. Recognizing how troubling an arrest
fee would be under the Due Process Clause, Judge Posner’s
opinion adopts this new interpretation by invoking the doc‐
trine of constitutional avoidance.
This transformation of the case ignores the most basic
constraint in deciding a motion to dismiss under Rule
12(b)(6): treat as true the factual allegations in the plaintiff’s
complaint. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.
308, 322 (2007); Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007); Leatherman v. Tarrant County Narcotics Intelligence
& Coordination Unit, 507 U.S. 163, 164 (1993). The complaint
here alleges a policy and practice of imposing the fee based
solely on the fact of arrest, in violation of the Constitution.
Those allegations stand regardless of whether the village
misinterpreted its own ordinance, and regardless of whether
other events (like posting bail or later pleading guilty) might
have justified a different fee under a different hypothetical
ordinance.
No. 12‐2619 41
The plaintiff’s complaint makes clear that his case de‐
pends not on the wording or abstract interpretation of the
ordinance but on the village’s actual policy and practice of
collecting an arrest fee just for going into jail. Paragraph 1 of
the First Amended Complaint (the operative one at this
stage) alleges: “The booking fee policy is procedurally and
substantively unconstitutional.” The complaint refers several
more times to the booking fee policy. See ¶¶ 3, 4, 15, 16, 37.
Other allegations in the complaint also describe the Village’s
actual practice, regardless of whether that practice was au‐
thorized by the ordinance. See ¶¶ 17, 20, 25, 26, 36, 45. The
plaintiff alleges that the money was taken from him upon
booking, not when he made bail (which he paid separately).
And the complaint does not even mention bail or bond.
During the en banc argument, counsel for the plaintiff
stated in response to questioning that his client paid $150 for
release on bond. That fee was different from the arrest fee at
issue here. When reviewing a Rule 12(b)(6) dismissal, we can
and should consider such new factual assertions as long as
they are consistent with the complaint. Wigod v. Wells Fargo
Bank, N.A., 673 F.3d 547, 555–56 (7th Cir. 2012); Veazey v.
Communications & Cable of Chicago, Inc., 194 F.3d 850, 861 (7th
Cir. 1999). This is especially so when the new information is
provided in response to questions that had not been consid‐
ered even relevant before the argument.
Exhibits attached to the complaint are also part of the
complaint, of course. See Fed. R. Civ. P. 10(c); Tellabs, 551 U.S.
at 322. The receipt the village gave the plaintiff is part of this
complaint. Judge Posner’s opinion does not mention the re‐
ceipt, and it’s flatly inconsistent with his theory. The heading
says “Arrest/Booking Fee Notice.” The text says: “You are
42 No. 12‐2619
hereby notified that under Village Ordinance #5‐1‐12, an
administrative fee of $30.00 is required upon completion of
any custodial arrest/booking procedure. The Complainant
named above by its Police Officer, on oath states that you
were arrested on: [date of arrest, name, date of birth, and
address].” The receipt goes on to say that “Fee of $30.00 is
due fifteen days from date of arrest.” The receipt thus shows
a fee imposed for arrest, not for release on bail. In fact, noth‐
ing in the receipt suggests the fee has anything to do with
bond, bail, or release from jail, and the provision for delayed
payment obviously does not fit with a fee for posting bail.
The limited record before us is thus fully consistent with
the plaintiff’s allegations that he was charged the fee for his
arrest. Judge Posner’s opinion points to nothing that would
even contradict that account, let alone resolve such factual
issues against the plaintiff on a motion to dismiss. We do not
know if the plaintiff was charged additional fees when he
posted bond—only that the bond itself cost $150. What mat‐
ters at this stage is that the plaintiff has plausibly alleged
that he was charged $30 for being arrested—and only for be‐
ing arrested. We have no basis for concluding otherwise.
As if the plaintiff’s allegations were not enough, the vil‐
lage has never disputed the factual foundation of his case:
that the arrest fee is triggered only by arrest. Nor has the vil‐
lage ever claimed the fee had anything to do with release
from jail, despite being fully aware of the cases approving
administrative fees for state bail‐bond systems. That was not
an oversight by counsel. It was simply an acknowledgment
that this was in fact an arrest fee, not a bond fee. The village
has argued instead that the fee was justified by the “service”
of being arrested, such as the “services” of being photo‐
No. 12‐2619 43
graphed and fingerprinted. No member of the en banc court
has endorsed that ludicrous defense.
The village has even tried to make a virtue of the arrest
fee’s simplicity. At every step of the case, the village has ar‐
gued that the three‐factor due process test under Mathews v.
Eldridge, 424 U.S. 319 (1976), shows there is no need for any
additional procedural protections. Why? Because the only
issue is whether the person being charged the arrest fee has
actually been arrested, and there is virtually no chance of a
mistake about that fact. The district court and the panel ma‐
jority both agreed and made this simple syllogism the foun‐
dation of their decisions. See Markadonatos v. Village of
Woodridge, 2012 WL 2128386, at *3 (N.D. Ill. June 11, 2012),
aff’d, 739 F.3d 984, 989–90 (7th Cir. 2014), vacated (March 17,
2014).
Instead of crediting the village’s explanation for how it
enforced the ordinance, Judge Posner’s opinion goes through
procedural contortions to construct a different past policy
and decides the case on that basis. But the bottom line is that
the plaintiff has alleged—and the village has not disputed—
a set of facts that present a viable claim for damages for vio‐
lation of his federal constitutional rights by reason of a mu‐
nicipal policy. See Monell v. Dep’t of Social Services, 436 U.S.
658, 694 (1978). The viability of that claim simply does not
depend on whether we can interpret the ordinance better
than the village that administered it.
II. Constitutional Avoidance?
Faced with the consistent account of the arrest fee policy
in the plaintiff’s allegations, the village’s arguments, and the
decisions of the district court and the appellate panel, Judge
44 No. 12‐2619
Posner’s opinion asserts that all have been mistaken. The
opinion offers its novel interpretation of the ordinance in the
name of constitutional avoidance, the practice of interpreting
statutes so as to avoid serious constitutional issues if that can
be done without undue violence to the statutory language.
Because the Supreme Court has upheld certain adminis‐
trative fees for the service provided by state bail‐bond sys‐
tems, Judge Posner prefers to read the ordinance as impos‐
ing the fee solely for posting bond and not for the mere fact
of custodial arrest. See Schilb v. Kuebel, 404 U.S. 357 (1971);
see also Payton v. County of Carroll, 473 F.3d 845 (7th Cir.
2007). The opinion overlooks that the fees in Schilb and Pay‐
ton were optional, unlike the village’s arrest fee here. In those
cases, arrestees had other options for obtaining release, and
bail decisions were of course subject to court supervision.
While constitutional avoidance has been criticized exten‐
sively as an interpretive tool, it retains a secure place in Su‐
preme Court decisions.1 If the plaintiff were seeking only in‐
junctive or declaratory relief about how the village should
administer the ordinance going forward, constitutional
avoidance would thus offer a plausible basis for resolving
the case without invalidating the ordinance.
1 For critiques, see, e.g., Frank H. Easterbrook, Do Liberals and Conserva‐
tives Differ in Judicial Activism? 73 U. Colo. L. Rev. 1401, 1405–06, 1409
(2002) (describing this interpretive canon as “noxious,” “wholly illegiti‐
mate,” and “a misuse of judicial power”); Richard A. Posner, Statutory
Interpretation—in the Classroom and in the Courtroom, 50 U. Chi. L. Rev.
800, 815–16 (1983) (canon has effect of unduly enlarging “already vast
reach of constitutional prohibition”); Henry J. Friendly, Benchmarks 210–
12 & n.88 (1967) (canon has “almost as many dangers as advantages” and
should not be used to dismiss indictments or civil complaints before the
facts are developed).
No. 12‐2619 45
The problem here is that the plaintiff is seeking damages
for an unconstitutional policy practiced in the past. Judge
Posner has not cited any cases using the doctrine of constitu‐
tional avoidance in this context, and for good reason. The
doctrine is meant to function in the mold of Professor Bick‐
el’s “passive virtues,” minimizing friction between branches
of government by deciding cases on narrow grounds where
possible. Alexander Bickel, The Least Dangerous Branch 175–
83 (2d ed. 1986); see also Clark v. Martinez, 543 U.S. 371, 381
(2005) (avoidance meant to give effect to legislature’s intent
instead of “subverting it” by invalidating statute).
Properly understood, constitutional avoidance is a mech‐
anism for saving legislation for the future, not a device for
wishing away past violations of constitutional rights. The
cases cited by Judge Posner reflect this limitation. In every
such case, constitutional avoidance was used to limit the
government’s actions or to deal with requests for injunctive
relief, not to excuse past violations of constitutional rights.
See Rust v. Sullivan, 500 U.S. 173, 181 (1991) (plaintiffs sought
injunction and declaratory relief); Ashwander v. Tennessee Val‐
ley Auth., 297 U.S. 288, 317 (1936) (plaintiffs sought to enjoin
performance of contract); Crowell v. Benson, 285 U.S. 22, 62
(1932) (interpreting statute to permit judicial review of ALJ’s
award of worker’s compensation); Hooper v. California,
155 U.S. 648 (1895) (affirming criminal conviction by declin‐
ing to read state statute as having extraterritorial applica‐
tion); Parsons v. Bedford, 28 (3 Pet.) U.S. 433 (1830) (reading
federal statute to limit appellate review of jury verdict and
thus to preserve Seventh Amendment rights). Other promi‐
nent cases endorsing constitutional avoidance are similar.
See Clark, 543 U.S. at 381–82 (aliens in detention entitled to
habeas corpus relief); Edward J. DeBartolo Corp. v. Florida Gulf
46 No. 12‐2619
Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988)
(denying enforcement of NLRB order); NLRB v. Catholic
Bishop of Chicago, 440 U.S. 490, 499–501 (1979) (denying en‐
forcement of NLRB order); United States ex rel. Attorney Gen.
v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909) (govern‐
ment sought to enjoin vertical integration of coal producers
and railroads).
Constitutional avoidance simply has no place in a case
like this, where the plaintiff has alleged a claim for damages
for a past violation of his constitutional rights. Judge Pos‐
ner’s novel revision of the village’s ordinance therefore pro‐
vides no basis for affirming the Rule 12(b)(6) dismissal of the
plaintiff’s claim for damages.2
III. The Merits of the Village’s Actual Policy
Returning to the merits of the case actually presented to
us, this is a simple case. The village took property from all
arrestees without due process of law. The deprivations oc‐
curred at the time of arrest, immediately and finally. The or‐
dinance allowed no room for dispute or review of any kind.
The deprivations occurred based on only the say‐so and
perhaps even the whim of one arresting officer, regardless of
whether the arrestee was ever prosecuted or convicted, and
regardless of whether the arrest was lawful in the first place.
By no stretch of the imagination can that be due process of
law.
2 If plaintiff can prove the alleged policy, the village should be liable for
damages whether or not it had repealed the ordinance. Judge Posner’s
discussion on pages 11–12 of the incentives for local governments is thus
something of a non sequitur.
No. 12‐2619 47
A good deal of ink has been spilled in this case (by me
and others) on whether the problem is better understood in
terms of procedural due process or substantive due process.
The village has defended the fee with a strategy of divide‐
and‐conquer. If the claim is limited to a procedural due pro‐
cess theory along the lines of Mathews v. Eldridge, 424 U.S.
319 (1976), and Goldberg v. Kelly, 397 U.S. 254 (1970), where
the issue is how much process is needed, and when, to de‐
cide a disputed factual or legal question, the village defends
the lack of any process on the simple theory that there is no
serious chance of an error in imposing the fee. If the claim is
limited to substantive due process, the village argues that
the plaintiff has no “fundamental right” in an amount of
cash that most lawyers and judges would view as modest,
and the substantive result—a $30 fine for (suspected) crimi‐
nal conduct—does not shock anyone’s conscience.
The problem is actually more fundamental than these
two distinct branches of modern due process jurisprudence:
the arrest fee denies due process because it imposes a per‐
manent deprivation of property based on the unreviewable
decision of one police officer. We don’t tolerate such arbi‐
trary government deprivations even for parking tickets. See
Van Harken v. City of Chicago, 103 F.3d 1346, 1350 (7th Cir.
1997) (rejecting due process challenge to parking ticket re‐
gime because it allowed for administrative and judicial re‐
view); Gardner v. City of Columbus, 841 F.2d 1272, 1276–77
(6th Cir. 1988) (same). The village’s arrest fee provided nei‐
ther process nor law in any recognizable form. This arrest fee
is indistinguishable from a fee the police might charge mere‐
ly for subjecting you to a traffic stop, a breathalyzer test, a
Terry stop and frisk, or for executing a search warrant at your
house.
48 No. 12‐2619
Why would all of those fees be unacceptable? The consti‐
tutional guarantee of due process is at bottom a requirement
that the government act according to the rule of law. That
requirement is implicit in the phrase “due process of law”
itself and evident from its long history since King John
promised in the Magna Carta not to dispossess or imprison
his subjects except “by the law of the land.” Influenced by
this history, our Nation’s founding generation sought to en‐
sure the rule of law so that neither a tyrannical executive nor
any other organ of government could impose its will arbi‐
trarily. See, e.g., Thomas Paine, Common Sense (1776), re‐
printed in The Great Works of Thomas Paine 33 (1877) (“For as
in absolute governments the king is law, so in free countries
the law ought to be king”); John Adams, A Defence of the
Constitutions of Government of the United States of Ameri‐
ca, in 4 The Works of Johns Adams 404 (1851) (“where the pub‐
lic interest governs, it is a government of laws, and not of
men”); The Federalist No. 51 (James Madison) (noting dan‐
gers of any branch of government becoming too powerful).
This commitment to the rule of law runs throughout the
Supreme Court’s due process jurisprudence, which has long
reflected the “traditional and common‐sense notion that the
Due Process Clause, like its forebear in the Magna Carta,
was ‘intended to secure the individual from the arbitrary ex‐
ercise of the powers of government.’” Daniels v. Williams,
474 U.S. 327, 331–32 (1986), quoting Hurtado v. California,
110 U.S. 516, 527 (1884), quoting Bank of Columbia v. Okely,
17 U.S. 235, 244 (1819). This foundation is obvious both in
cases applying the substantive strand of due process, see
County of Sacramento v. Lewis, 523 U.S. 833, 845 (1998) (“Since
the time of our early explanations of due process, we have
understood the core of the concept to be protection against
No. 12‐2619 49
arbitrary action.”), as well as in purely procedural cases, see
Wolff v. McDonnell, 418 U.S. 539, 558 (1974) (“The touchstone
of due process is protection of the individual against arbi‐
trary action of government.”); Fuentes v. Shevin, 407 U.S. 67,
81 (1972) (procedural protections such as notice and a hear‐
ing “protect against arbitrary deprivation of property”).
A fee based on the unreviewable say‐so of one police of‐
ficer is an arbitrary deprivation of property. An arrest fee of
$30 does not, of course, threaten the end of individual liberty
or property rights as did the confiscation of an English bar‐
on’s entire estate. But the village’s arrest fee still imposed
permanent deprivations of property on everyone arrested in
the village. And as Judge Posner’s opinion acknowledges,
that deprivation cannot seriously be justified as a service to
the arrestee.
If the theory is that the arrestee has done something crim‐
inal to justify the arrest and the fee, as the district judge and
panel majority reasoned, that’s a question we answer
through the due process provided by the criminal justice
system, not on the unreviewable say‐so of one arresting of‐
ficer. See In re Winship, 397 U.S. 358, 361 (1970); Sullivan v.
Louisiana, 508 U.S. 275, 278 (1993). Even a suspect’s confes‐
sion to an officer on the spot is only evidence. It does not en‐
title the officer to impose judgment and punishment.
Contrary to Judge Easterbrook’s opinion, even where an
arrest is supported by probable cause—and again, the vil‐
lage imposed this arrest fee regardless of whether it was—
probable cause is too low a bar to justify a permanent depri‐
vation of property. Permanence of the deprivation is the key
difference between this case and forfeiture cases like Kaley v.
United States, 134 S. Ct. 1090, 1098 (2014). They allow tempo‐
50 No. 12‐2619
rary interference with property on the basis of probable
cause but have never suggested probable cause is sufficient
for a permanent deprivation. Nor is it any answer to say that
because the police can hold an arrestee for up to 48 hours
without bringing him before a judge, see County of Riverside
v. McLaughlin, 500 U.S. 44, 56 (1991), the fact of custodial ar‐
rest justifies extra deprivations of liberty or property. Unlike
the temporary limits on the arrestee’s freedom of movement
in the hours before he can see a judge, the $30 fee is not an
inevitable consequence of custodial arrest.3
Finally, Judge Posner suggests (at page 14) that the plain‐
tiff here doesn’t really have much to complain about. The fee
could have been constitutional under a different ordinance,
such as one written to impose the fee only after a plea or
judgment of guilty, and this plaintiff admitted the offense
here. The first problem with that suggestion is that that’s not
what the village did. The second problem is that the right to
fair procedure applies to the innocent and guilty alike. E.g.,
Carey v. Piphus, 435 U.S. 247, 266 (1978) (“the right to proce‐
dural due process is ‘absolute’ in the sense that it does not
depend upon the merits of a claimant’s substantive asser‐
tions”).
3 My colleagues’ focus on whether an arrest was made with probable
cause misses the constitutional point for another reason. Probable cause
was simply not relevant under the village’s ordinance and policy. More‐
over, a person can be arrested with probable cause without having done
anything wrong, or even anything suspicious. Consider a case of mistak‐
en identity, where a police officer conducting a traffic stop learns there is
an outstanding arrest warrant for someone with the same name as the
driver. An arrest may be made with probable cause, but there is no justi‐
fiable reason for charging the arrestee a fee for the experience.
No. 12‐2619 51
IV. The Plaintiff’s Standing to Sue
A majority of the court agrees that the plaintiff has stand‐
ing to challenge the village’s policy. Judge Sykes takes a dif‐
ferent view in her opinion and would instead remand the
case to the district court to dismiss for lack of standing.
Judge Easterbrook agrees with her in part. Because the plain‐
tiff pleaded guilty to shoplifting, and the government can
impose fines on those who are found guilty of a crime, Judge
Sykes would hold that the plaintiff’s injury of being charged
the $30 is “not fairly traceable to the Village’s allegedly un‐
constitutional conduct.” Sykes, J., at page 29. This approach
confuses the merits of the plaintiff’s claim with his standing
to bring it, and the approach is based on a different ordi‐
nance or policy than the one actually before us.
Standing is an inquiry separate from the merits and is not
a difficult hurdle to clear, especially for a plaintiff who asks
for the return of his property taken by the government. See,
e.g., Construction Indus. Ret. Fund of Rockford v. Kasper Truck‐
ing, Inc., 10 F.3d 465, 467 (7th Cir. 1993) (“a litigant doomed
to lose does not for that reason lack standing to sue”). As we
recently explained:
At the pleading stage Article III standing is
something to be alleged, not proved. All that
must be alleged is an injury, personal to the
person seeking judicial relief, that the court can
redress, an injury such as the injury inflicted by
the government when it has got hold of money
that belongs to the person and refuses to return
it. This is constitutional law 101.
52 No. 12‐2619
United States v. Funds in the Amount of $574,840, 719 F.3d 648,
651 (7th Cir. 2013).
The requirements for standing are easily satisfied here.
The plaintiff suffered an injury when the village took his $30.
He alleges that the money was taken pursuant to the de‐
fendant’s unconstitutional policy of collecting the money
from all arrestees. A court could redress his injury by finding
the policy unconstitutional and awarding damages. That’s
enough. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555,
560–61 (1992). Standing does not depend on whether the
plaintiff will ultimately prevail on his constitutional claim.
Nor does standing depend on whether the village might
have been able to justify a $30 fee under a different policy or
ordinance that has not been alleged by the plaintiff or sup‐
ported by the pleadings (or even argued by the village).
Like Judge Posner, Judge Sykes would resolve this case
by hypothesizing yet a different municipal practice or ordi‐
nance than the one actually alleged here, but she relies on a
third version. Because the village could have charged those it
arrested a $30 fine upon their conviction, she reasons, this
plaintiff lost standing to challenge the village’s actual policy
of charging all arrestees at the time of arrest when he entered
a guilty plea. But Article III standing is no more appropriate
a tool for rewriting the arrest fee than is the doctrine of con‐
stitutional avoidance.
Under the village’s actual policy, the due process viola‐
tion occurred at the moment the arrestee was brought to jail
and paid the $30 fee for no reason other than his arrest. That
was an arbitrary deprivation of property without any pro‐
cess of law. And at that moment after payment, plaintiff
No. 12‐2619 53
Markadonatos or any other arrestee had a ripe due process
claim.
Anything that happened later—posting bail, pleading
guilty, or anything else—is irrelevant to the constitutional
question. It’s irrelevant because what happened later was ir‐
relevant under the village’s own policy. The plaintiff and all
other arrestees paid the fee regardless of whether they ever
faced charges or were ever convicted. They all suffered the
same denial of due process the minute the money was taken
from their pockets. See Carey v. Piphus, 435 U.S. 247, 266
(1978) (procedural safeguards apply “whatever the ultimate
outcome of a hearing”), quoting Fuentes v. Shevin, 407 U.S.
67, 87 (1972). The fact that the fee might have been lawfully
imposed on some arrestees under a different hypothetical
policy—one that charged the fee only to those ultimately
convicted—does not save the village’s actual practice any
more than a subsequent criminal conviction could justify a
mandatory fee for a traffic stop, a Terry stop and frisk, or ex‐
ecution of a search warrant.
The due process violation here is so fundamental that
plaintiff’s standing cannot be defeated by Codd v. Velger, 429
U.S. 624 (1977), or Rector v. City & County of Denver, 348 F.3d
935 (10th Cir. 2003), the reasoning of which Judge Sykes en‐
dorses. Those cases addressed an unusual wrinkle in the law
of procedural due process. They held, Codd on the merits
and Rector on standing, that the plaintiffs had no viable basis
for demanding more process when there was no underlying
dispute that a hearing could have resolved. Codd and Rector
would be relevant here if the village had adopted a different
policy or ordinance, to collect an arrest fee from each ar‐
restee who was convicted of a crime arising from the arrest.
54 No. 12‐2619
That’s not this case. Although this plaintiff also argues
that he was denied sufficient process, he does not seek a
meaningless hearing to determine whether he was arrested
or not. He instead challenges the arrest fee as an utterly arbi‐
trary deprivation of property. It was imposed permanently
by the unreviewable act of one police officer, with no process
at all. Codd and Rector were simply not addressed to such a
basic violation of due process.
V. The Silver Linings
The result of the court’s en banc vote is bad news for
plaintiff Markadonatos. His later guilty plea seems to have
made him an unsympathetic champion for due process, but
he should be allowed to pursue his claim and to seek class
certification.
Yet for others who were required to pay the Woodridge
arrest fee or who might be required to pay similar fees in the
future, there are actually some silver linings in the en banc
decision: (1) The erroneous panel opinion has been vacated.
(2) A majority of court signals clearly that any similar arrest
fee is likely to fail a future due process challenge. (3) A ma‐
jority of the court finds that plaintiff has standing to assert
his claim. (4) Judge Posner’s procedural contortions to avoid
the effect of plaintiff’s actual allegations have not been en‐
dorsed by a majority of the court. (5) No theory for denying
relief has the support of a majority of this court. So while I
respectfully dissent from affirmance of dismissal in this case,
I hope these signals will discourage the Village of
Woodridge and any other governments from adopting a new
No. 12‐2619 55
arrest fee or policy and risking similar litigation and a fee
award under 42 U.S.C. § 1988.4
4 Readers interested in the precedential effects of our court’s divided
vote, where no one judgment garnered a majority, may find an interest‐
ing discussion of the phenomenon in Michael L. Eber, When the Dissent
Creates the Law: Cross‐Cutting Majorities and the Prediction Model of Prece‐
dent, 58 Emory L. J. 207 (2008), and sources cited therein.