(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Markadonatos filed a class action against Woodridge, claiming that the fee, which has since been repealed, violated arrestees' substantive and procedural due process rights.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.