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 judgment). 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 conceptualizeddue-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

Our per curiam affirmance is a nonprecedential default disposition

1

necessitated by ourinability 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 administrative 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.

Whilehe 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 constitutional 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 guaranteed 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 arguedthat the fee isprocedurally 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 substantivelyunconstitutional as appliedtopeople 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 development, 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 ordinance 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 theVillage 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) (discussing 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 wasuniformly 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 redressed 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 substantive 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; 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’ 2

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. The

3

first is an argument about procedure; the othertwo 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 collection 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., concurring in judgment). So the substantive component of the dueprocess 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 predeprivation 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

 (...continued) 2

subsidize the illegal deprivation of their liberty.”).

See id. at 31 (“[T]he only reason for Woodridge to link its fee to arrests 3

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 claimto 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 employee’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 andsecondaryschool students sought damages for

deprivation of their due-process rights after they were suspended 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 instructions 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). Rectorinvolved a challenge to the parkingenforcement 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 plaintiffs—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 plaintiffsdenied

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. Indeed, he expressly accepts that it’s 4

See Appellant’s Br. at 28–29, ECF No. 62 (“It is indisputable that the 4

(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 constitutional 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. 

 (...continued) 4

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.”).

See id. at 26 (“Woodridge could either incorporate an assessment of the 5

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 substantive component of the Due Process Clause prohibits Woodridge 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 arguments 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.