Posner Calls Town’s Arrest Fee ‘Ridiculous’

CHICAGO (CN) - During oral arguments today over the constitutionality of a Chicago suburb's $30 fee on all arrestees, the 7th Circuit's Judge Richard Posner called it "ridiculous" to charge a person simply for being arrested.

Jerry Markadonatos filed a class action against the village of Woodridge, a wealthy and predominantly white Chicago suburb, claiming that the fee violates arrestees' due process rights because it may be imposed whether there is probable cause or not.

A divided panel upheld the fee earlier this year, but the circuit voted to rehear the case en banc today in front of a packed courtroom.

"Would people be entitled to a hearing at $300?" Judge Ann Williams asked. "Thirty dollars could be a lot of money to someone out of work."

"That might be a little different," defense attorney Paul Rettberg said. "In terms of society today, $30 is a very small amount."

Rettberg repeatedly faltered in response to the court's questions. More than once, a judge asked "why we're here," provoking laughter in the courtroom. He stood in silence when Judge Diane Wood pointed out that an innocent person could be charged.

Plaintiff's attorney James Burnham also seemed unprepared to argue whether or not $30 was a fundamental right. When pointedly asked by Judge Frank Easterbrook, he began to say "no" before backtracking to state that "there's a fundamental right to be free from arbitrary governmental action as it relates to property."

Nonetheless, Easterbrook accused Burnham of "making a mockery" of Supreme Court precedent that states that there is only a substantive due process violation when a fundamental right is violated.

Judge Posner stated point blank that "there's no basis for charging a person to be arrested." He bristled at Rettberg's analogy to filing fees: "Arrest is not a privilege. Paying for being arrested is ridiculous."

Posner also offered a more sympathetic reading of the ordinance, stating that it was not unconstitutional so long as the fee applied to bail or bond.

"What's frustrating to me is that neither side is discussing the bond aspect," Posner said. "If it applies only to bond, what's the big deal? Can't a fee be charged for bail or bond? It's a service."

Burnham rebuffed this suggestion, which Posner raised multiple times throughout the hearing. Many audience members were chuckling by the third or fourth time that Posner brought up the bail issue, which neither side argued in its brief or considered dispositive.

Only in the final seconds of his rebuttal did Burnham effectively respond: "The village wrote the ordinance broadly. The court shouldn't impose a savings reading to help the village with an argument that it never raised itself."

Judge Diane Sykes, who concurred with the judgment for Woodridge before, asked Burnham why a town could "impose a fee for impounding a dog or cat" given that "lots of fees are imposed without hearings."

"You choose to have a dog," Burnham said. "Arrest is unique in that the government can arrest you at any time. A fee cannot be imposed for the naked fact of arrest."

Sykes found the question of standing decisive in the first panel hearing and raised the issue again since the ordinance has now been repealed. However, Burnham insisted that the class still has standing to seek reimbursement for the fees they already paid.

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