So Many Judges, So Many Opinions

     (CN) - After an en banc hearing, a splintered 7th Circuit was unable to reach a majority opinion on the constitutionality of an ordinance that imposed a $30 fee on everyone arrested in a Chicago suburb.
     In 2011, Jerry Markadonatos was arrested and charged with shoplifting in the Village of Woodridge, and was told at the police station that he had to pay a $30 administrative fee as part of the booking process. He paid the fee, posted bond, and was released without being jailed.
     After his guilty plea, 12 months of court supervision, and paying $785 in fines, Markadonatos said he was able to get his shoplifting charge dismissed and received a "not guilty" adjudication.
     Markadonatos filed a class action against Woodridge, claiming that the fee, which has since been repealed, violated arrestees' substantive and procedural due process rights. Markadonatos sought damages based on the $30 he paid.
     A divided 7th Circuit panel this year upheld U.S. District Judge James F. Holderman's decision to dismiss the suit, but the circuit voted on June 3 to rehear the case.
     On Monday, the circuit released a fractured opinion in which five judges voted to affirm the decision to dismiss, four judges voted to reverse the decision, and one judge voted to remand with instructions to dismiss for want of standing to sue.
     The appellate judges who voted in favor of Woodbridge split on their reasoning.
     Judges Richard Posner, Joel Flaum and Michael Kanne found that the village's ordinance did not impose a fee simply for being arrested, but that it was payment for arranging for a bail bond that allowed the arrestee to stay out of jail.
     "The opening sentence of the ordinance states that it imposes 'fees for the following activities and purposes,' 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," Posner wrote.
     The right to bail is a valuable right for which a person seeking it - whether guilty or innocent - must pay, and the $30 is a part of that cost, the three judges found.
     The judges likened the $30 fee to Woodridge's fees to release an impounded animal or pay for a towed vehicle.
     "(A) dog or cat may escape the owner's control, 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, impounding the animal confers a benefit on the owner for which he must pay despite his lack of fault," Posner wrote. "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."
     Posner pointed out that the judges were not condoning the conduct of the Woodridge police if they charged the $30 fee to people they arrested who did not attempt to post bail or bond.
     "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 released. He paid for and received a valuable service. No constitutional right of his was violated," Posner wrote.
     Judges Frank Easterbrook and John Tinder, who also voted to affirm the dismissal, pointed out that neither side asked the circuit to read the ordinance as applicable only to bail, but instead agree that the ordinance imposes a $30 fee on all arrests.
     Their reasoning for voting to dismiss was based on the argument that being arrested based on probable cause comes with substantial burdens that are justifiable under the Constitution, and the $30 fee is no exception.
     Easterbrook pointed out that probable cause can justify things such as being held for as long as 48 hours before seeing a magistrate, holding a defendant in custody pending trial, and seizing a suspect's assets pending forfeiture, making it impossible for the suspect to hire his preferred lawyer.
     "All of these losses vastly exceed a $30 fee. If probable case 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 difference between a top-notch lawyer and the average quality provided under the Criminal Justice Act," Easterbrook wrote.
     He argued that requiring an arrestee to pay a $30 booking fee does not constitute a deprivation of a fundamental right. Like Posner, Easterbrook rationalized the fee by comparing it to a fee imposed 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 generating 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 Markadonatos 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 person is taken to the stationhouse."
     Dissenting Judge Diane Sykes argued that the circuit should not even be deciding whether the ordinance was constitutional because Markadonatos had no standing to pursue the case.
     She pointed out that Markadonatos conceded that there was probable cause for his arrest, as evidenced by his admittance of guilt in court, so he cannot press an argument that the $30 fee is irrational as applied to those who are innocent or wrongfully arrested.
     Markadonatos did not argue that the substantive component of the Due Process Clause prohibited Woodbridge from requiring lawfully arrested people to pay a booking fee, Sykes wrote.
     "As such, he has suffered no harm that is fairly traceable to the alleged deprivation of process about which he complains," she wrote.
     In a separate dissenting opinion, Judge David Hamilton, joined by Judges Diane Wood, Ilana Rovner and Ann Claire Williams, pointed out that Posner's opinion was based on a case that was not actually before the circuit, as the village never disputed that the fee was based simply on being arrested and was not part of a bail service.
     "(I)n 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 instead to decide a different case, one shaped by rewriting the ordinance and overlooking the plaintiff's allegations," Hamilton wrote.
     The four dissenting judges contended that requiring someone to pay a non-refundable fee based solely on the say-so of one police officer deprived arrestees of their property without due process of law.
     The arrest fee "denies due process because it imposes a permanent deprivation of property based on the unreviewable decision of one police officer. We don't tolerate such arbitrary government deprivations even for parking tickets. The village's arrest fee provided neither process nor law in any recognizable form. This arrest fee is indistinguishable from a fee the police might charge merely for subjecting you to a traffic stop, a breathalyzer test, a Terry stop and frisk, or for executing a search warrant at your house," Hamilton wrote.
     He argued that even when an arrest is supported by probable cause, this is too low a bar to justify a permanent deprivation of property. Therefore, the moment Markadonatos was brought to jail and paid the $30 fee, that was an arbitrary deprivation of property without any process of law, which gave him a ripe due process claim, Hamilton said.
     Because none of the positions commanded a majority, the judgment of the district court to dismiss was affirmed.
     The "en banc court cannot agree on what questions the case raises, whether the plaintiff is the right person to raise 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," Sykes wrote.