### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 12

‐ 2619

J ERRY G. M ARKADONATOS

, individually and on behalf of all

others similarly situated,

Plaintiff

‐ Appellant

,

v.

V ILLAGE OF W OODRIDGE

, 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

.

____________________

A RGUED M AY 30, 2013, R EARGUED EN B ANC J UNE 3, 2014

—

D ECIDED J ULY 21, 2014

____________________

Before W OOD

, Chief Judge

, and P OSNER

, F LAUM

, E ASTERBROOK

, K ANNE

, R OVNER

, W ILLIAMS

, S YKES

, T INDER

, and

H AMILTON

, Circuit Judges

.

P ER C URIAM

. 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 remand2 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).

P OSNER

, Circuit Judge

, joined by Circuit Judges F LAUM and

K ANNE 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 $30No. 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 who4 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 the6 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 are8 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 likeNo. 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, theNo. 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 isn ʹ t 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.

, 624No. 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. If14 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 federal16 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

E ASTERBROOK

, Circuit Judge

, joined by Circuit Judge

T INDER

, 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 theNo. 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

‐ basisNo. 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 involuntary22 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

S Y K E S

, Cir cui t Judge

, d iss entin g. The gr ound has shi fted

under thi s cas e si nce w e gr anted rehear i ng en banc.

• Three me mb e r s of the court now propo se to affi rm by

i nv oking the doctr ine of consti tutional av oidan ce, an

option not raise d by the parties. See ante

, at 7–15

(P osner, J., concurri ng i n the judgment).

• Four members of the court w ould rev erse and remand

on the merits, though on a di ffer ent analysi s than

or i gin ally arg ued by the plai nti ff or adopted by the

p anel di ssen t. Compar e post

, at 45–49 (Hami lton

, J.

, di ssen tin g), with Mark

adonat os v

. V

illage of W

oodridge

,

739 F .3d 984, 994–1000 (7th Ci r

. 2014) (Hami lton, J.,

di ssen tin g), and Appellant’s Br

. a t 9–28, 33–40, ECF

No. 22 (panel bri ef ).

• For my part, en banc rev i ew has reinf or ced my e a rlier

doubts about the plai nti ff’s st a nding. I w ould v acate

and remand wi th i nstructi ons to di smi ss fo r lack of

jurisdi cti on.

• Judges Easterbro ok and Ti nder sub stanti ally agr ee wi th

me that the plai nti ff lacks standing, although they

conclu de that a narro w asp ect of the case i s justi ci able.

See ante

, a t 17 (Easterbroo k, J., concu rr i ng i n the judgment). But they also di sagree wi th Judge P osner’s use of

the consti tutional-av oidan ce doctrine and i nste ad

w oul d ho ld t hat the justic i able r emai nder i s not viab le

as a due-process clai m, as the plai nti ff has arg ued i t, but

only as an equal-p r o t e ct i on clai m, whi ch fai ls on the

merits. See id . at 18–22.

In short, the en banc court cannot agr ee on what questi ons

the case rais es, whether the plai nti ff i s the right person to rais e24 No. 12-2619

them, whether they hav e been proper ly pre se rv ed, or what

doctrinal framew or k appli es. Our fractured nondeci si on

suggests that thi s case w as a poor v ehi cle for resolv i ng the

consti tutionali ty o f a jail book i ng fee. 1

* * *

As the case w as or i gin ally presented to the panel, the

plai nti ff rais ed a v a gu e l y c on c e p tu a l i z e d d u e

- p ro c e s s c h a l lenge

to W oodr i dge’s book i ng fee—a $30 fee the V i llage collects from

ev ery one who i s arr ested and book ed at i ts jail. Nev er mi nd the

hazy bri efi ng, just describi ng thi s fee i s enough to tr i gge r alarm

and i ndi gnation. Can a muni ci pali ty really charge a fee si mply

for bein g ar rested and book ed at its jai l? Really?

Maybe not, but the panel major i ty conc l uded that the

plai nti ff lacks standi ng on the key “sub stanti v e” aspect of hi s

due-process clai m—hi s arg ument that i t’s i rr ational to i mpose

the fee on those wh o are wrongly arr ested—becaus e he w as

Our pe r c u r i am affi rman ce i s a nonprece denti al def ault di sposi tio n 1

necessitated b y our i nab i l i ty to muster a majori ty fo r a judgment, akin to an

affi rman ce b y an equall y di v i ded cour t. See, e.g.

, W arner -Lambert Co. v

. Kent

,

55 2 U.S

. 44 0 (2 00 8) ; see also Neil v

. Bigg ers

, 40 9 U

. S

. 1 8 8

, 19 1– 92 (1 97 2)

(explai ning tha t an equall y di v i ded cour t l eav es the l ower cour t’s judgment

i n fo rce b ecause “i t i s the appell ant or peti tio ner wh o as k s t he Co urt to

ov erturn a l o we r c our t’s decr ee,” ); see also id. at 19 2 (explai ning tha t an

affi rman ce b y an equall y di v i ded cour t h as no preced ential eff ect); Durant

v

. Essex Co.

, 74 U.S

. (7 W all .) 10 7, 11 2 (1 86 8) (“ If the judge s are di v i ded, the

rev ersal cann ot b e had, fo r no or der can b e made. The judgment of the cour t

be l ow

, therefo re, stan ds i n ful l fo rce. It i s, i ndeed, the settle d practic e i n

such case to enter a judgment of af f i r ma nc e ; b ut this i s onl y the most

conv enie nt mode of expressing the fact tha t the cause i s fi nall y di sposed of

i n conf or mity with the actio n of the cour t b el ow

, and tha t tha t c o u r t can

pro ceed to enfo rce i ts judgment. The l egal eff ect w oul d be the same if the

appeal, o r wri t o f e rro r , were di smissed.” ).No. 12-2619 25

lawfully arr ested on probable caus e. See Mark adonat os

, 739 F .3d

at 988–89 (major i ty op.); id. a t 992–93 (Syk es, J., concu rr i ng).

That remain s my view

. And I’m now convin ced that the

plai nti ff lacks standi ng on the “procedural” aspect of hi s clai m

as w ell.

The book i ng fee i s li sted i n the W oodr i dge V i llage Code as

a li ne i tem i n an other wi se unremarkable sch edule of admi ni str ativ e fees. In i ts entirety , the or di nance reads as follows:

Book i ng fee: When postin g bai l or bond o n any

l e g al process, ci vil or cri mi nal, or any cus todial

arr est i nclu di ng w arr ant. $30.00

W O O D R I D G E

, I L L

., C O D E § 5-1-12A (2013), r epealed by Or di nance

of Mar

. 13, 2014, Or d. No. 2014-11. The ter se language i s not

unus ual giv en i ts placemen t i n a sch e d ul e o f admi ni strat i v e

fees promulgated by a small mu ni ci pali ty

.

Jerry Mar kadonat os w as arr ested for shopli fti ng and take n

to the W

o o dridge jail. Duri ng the book i ng process, he w as

giv en wri tte n notic e of the $30 bo o k ing fee, and he pai d i t

i mmedi ately

, befo re bondi ng out of jail. He w as there after

charge d in DuP age County Ci rcui t Court wi th ret ai l theft, a

state mi sdemeanor offense. He pleaded gui lty as charged, w as

fo und gui lty

, and w as sentenced to a 12-month ter m of

supervis i on and or dered to pay v a r io us court costs and

cri mi nal-justi ce fees.

As Judge P osner notes, the parties di spute the legal

si gni fi canc e of the ter m of supervis i on, w hi ch apparently w as

i mposed under a pret rial di v ersi onary prog ram that permi ts

the court to di smi ss the case upon the d e fe nd a nt’s suc cess ful

completi on of supervis i on. See 730 I L L

. C O M P

. S T A T S

. 5/5-6-1( c),

5/5-6-3.1( e), 5/5-6-3.1( f ). The di spute is i mmaterial. What26 No. 12-2619

matter s here i s t hat Mar kadonat os w as arr ested on probable

caus e, w as charged wi th ret ai l theft, pleaded gui lty

, and serv ed

a ter m of supervis i on for that cri me. Ev ery one agr ees on these

facts.

W h i l e h e w a s s ti ll on court supervis i on, Mar kadonat os s u e d

the V i llage under 42 U.S.C. § 1983, accusi ng i t of v i olating his

right to pr ocedural and su bstanti v e due process by collecti ng

the book i ng fee wi thout a hearin g at whi ch he could contest i t.

He sought the full range of remedies for the clai med consti tutional violati on: a declaration that the book i ng-fee or di nance i s

unc onsti tutional, an i njuncti on enjo i ni ng W oodr i dge from

enforci ng i t, and damag es. He brought the sui t on behalf of

hi mself and a clas s of “[a]ll i ndi vidu als who w ere depri v ed of

their proper ty pursuant to W oodr i dge Municipal Or di nance

5-1-12( A) wi thout bei ng prov i ded the consti tutionally guaranteed due process of law .” The di stric t court di smi ssed the case

on the pleadin gs.

In hi s i ni tial bri ef on appeal, Mar kadonat os confl ated the

procedural and sub stanti v e aspects of hi s due- p r o cess clai m.

H e a rg u e d th a t th e f e e i s procedurally unc onsti tutional becau s e

the V i llage co l l e ct s i t duri ng the book i ng process wi thout a

predepr i v ation he a r ing to test the v ali di ty of the arr est or at

least a postdepriv ation process by whi ch t ho se who are

wrongfully arr ested, nev er cha r ged, or are found not gui lty

may obtain a refund. Thi s w ay of frami ng the p r o cedural

challen ge requires a prior conclu si on about the substance of the

or di nance. By i ts ter ms, the or di nance d oes not make the fee

conti ngent on a v ali d a rr est or suc cess ful prosecuti on. T o

resolv e the arg ument about i na d equate pr ocess

, the court

w ould fi rst hav e to conclu de that t he bo o k ing fee i s substantively unc onsti tutional a s a p p l i e d to p e op l e w h o a re wrongfullyNo. 12-2619 27

arr ested

, ne ver charged, or are found not gui lty

. But

Mar kadonat os i sn’t i n any of those gr oups. He c on c e d e s that he

w as lawfu lly arr ested o n probable caus e, w as i n fact charged

wi th ret ai l theft, and pleaded gui lty as charged.

So the panel major i ty conclu ded that Mar kadonat os lacked

standi ng to challen ge the fee as a violati on of sub stanti v e due

process and proceeded to analyze the procedural due-process

clai m without the embedded s ubs tantiv e premis e, rej ecti ng i t

under the balanc i ng test of Mat hews v

. Eldridge

, 424 U.S. 319

(1976). See Mark adonat os

, 739 F .3d at 988–91; id

. a t 9 92–93

(S y k e s, J., concu rr i ng). Judge Hamil ton di ssen ted, construi ng

the book i ng fe e a s “ in sub stance a cri mi nal fi ne,” id. at 993

(Hami lton, J., di ssen tin g), whi ch of course cannot be i mposed

wi thout an adj udi cati on of guilt, id. at 994–99.

Mar kadonat o s t hen obtained new couns el and sought

rehear i ng en banc

. The court gr anted r e hearin g and or dered

the parties to sub mit ne w bri efs on (among other thi ngs) the

questi on of standi ng and th e f e e /fi ne di sti ncti on rais ed i n Judge

Hami lton’s di ssen t. In thi s new ro und of bri efi ng, W oodr i dge

pressed harder on the standi ng pro bl e m, and the parties

agr eed that t he booking fee i s i ndeed a fee, not a fi ne.

Meanwhi le, the V i lla g e qui etly repealed the book i ng fee.

No one bother ed to tell the court about thi s i mport ant dev elopment, perhaps becau se the clai m for damages remain s. But the

repeal moo ts the clai m for in juncti v e relief.

N o w

, i n y et another twi st, three members of the cour t

propo se to resolv e the sole remain ing l ive clai m on a new

gr ound nev er rais ed by the part ie s. Inv oking the doctrine of

consti tutional av oidan ce, my col leagues i nterpr et the or di

nance as a fee for bondi ng out of jail. See ante

, at 7–15 (P osner,

J., concu rr i ng i n the judgment). Havin g thus “sav ed” the (now28 No. 12-2619

repealed) or di nanc e via a narro wi ng constructi on, they

conclu d e th a t th e V i l l a ge c ommi tte d no consti tutional violati on

(bec ause Mar kadonat os bonded out of jail) and there fore rej ect

the clai m on the merits. Id. at 16.

I certainly agr ee that the or di nance i s not clearly drafted.

And the propo sed li mi tin g constructi on ma y be a reasonable

one. But thro ughout thi s li tigati on, the parties hav e agr eed that

W oodr i dge i mposes the fee on all persons arr ested and book ed

at i ts jail, reg ardless of whether they remain i n cu st o d y

, post

bai l, or bond out. Granted, there i s some authority for i nv oking

the d o ct r i ne of consti tutional av oidan ce sua sponte. See, e.g.

, Escambia County v

. McMillan

, 466 U.S. 48, 51–52 (1984); Edward

J. D eBarto lo Corp. v

. NLR B

, 463 U.S. 147, 158 (1983); Y ouakim v

. Miller

, 425 U.S. 231, 234–36 (19 7 6 ); see also Adrian V ermeule,

Saving Construc tions

, 15 G E O

. L.J. 1945, 1948–49 (1997) (di scu ssi ng procedural av oidan ce and co l lecti ng cases ). But that

approach i s not open to us here for the reasons Judge Hami lton

explain s at length i n hi s di ssen t, see post

, at 44–45 (Hami lton, J.,

di ssen tin g), and Ju d ge Easterbro ok also menti ons i n hi s

concu rr ence, s e e ante

, at 17–18 (Easterbroo k, J., concu rr i ng i n

the judg ment ). I agr ee wi th them on thi s poin t and hav e

nothin g to add.

It’ s w or th reiterat i ng, how ev er

, that the clai m for i njuncti v e

relief i s moot. A “saving” constructi on i s a remedial devic e to

av oid striki ng a statute a s un co nsti tutional, but here the

challen ged or di nance i s no longer on the book s. A li mi tin g

constructi on can’t be appli ed ret ro specti v ely and used as a

basi s to rej ect a clai m for damages—at least not where, as here,

the parties agr ee that the statute w a s u n i f or m l y i n terpret ed and

appli ed more br oadly

.

* * *No. 12-2619 29

On closer rev ie w I’v e conclu ded that Mar kadonat os lacks

standi ng on both the sub stanti v e and procedural aspects of hi s

due-process claim

. Thi s i s, of course, a jurisdi cti onal i nqui ry

that mus t precede consi derat i on of the merits. See

DaimlerC hrysler Corp. v

. Cun o

, 547 U.S. 332, 342 (2006); Luj an v

. Defen ders of W

ildlif e

, 50 4 U

. S. 555, 560 (1992); see also U.S.

C O N S T . art . III , § 1.

The fami li ar requirements of Art i cle III standi ng are these:

(1) the pl ai nti ff mus t hav e suf fered a concrete “i njury i n fact”;

(2) the i njury mus t be fai rly tr aceable to the defenda nt ’ s

allegedly unla wf ul conduc t; and (3) “i t mus t be li kely

, as

opposed to merely specu lativ e, t ha t the i njury wi ll be redressed by a fav or able deci si on.” Luj an

, 5 04 U.S. at 560–61

(i nternal quot ation marks omi tte d).

There’s no doubt that the fi rst requirement i s sati sfi ed here.

Mar kadonat os pai d the $30 book i ng fee. The problem aris es at

step tw o of the standi ng i nqui ry

. As Mar kadonat os has framed

hi s consti tutional clai m—i n bot h it s procedural and sub stantiv e aspects—h i s i njury i s not fai rly tr a ce a bl e to the V i llage’s

allegedly unconsti tutional c onduct.

Although hi s arg uments hav e ev olv ed duri ng the course of

thi s appeal, at thi s p o int Mar kadonat os offers three basi c

reasons why the book i ng-fee or di nance is unc onsti tutional:

(1) the fee i s collected wi thout a predepr i v a t io n he a ring or a

postdepriv ation process to obtain a refund; (2) the fee i s

arbi tr ary and i rr ational as appli ed to those who are unlaw fully

arr ested; and (3) the fee i s ar bi tr ary and irrat i onal as applied

2

See Appe l l ant ’s Br

. at 30

, ECF No. 62 (“ W oo dri dge’s scheme i s ‘ir ratio nal’ 2

and ‘arb i trary’ because i t fo rces peo pl e who are i l l egall y arrested to

(co ntinued. ..)30 No. 12-2619

t o those who are nev er charged or are found not gui lt y

. Th e 3

fi rst i s an arg ument about procedure; the other tw o address the

sub stanti v e ter ms of the ordinan ce.

Becaus e Mar kadonat os concedes probable caus e to arr est

and i n fact admi tte d his g uilt i n court, he can’t press an

ar gument that the fee i s i rr ational as appli ed to i nnocent or

wr o ng fully arr ested people. See Sic kles v

. Campbell County

,

501 F .3d 726, 732 (6th Ci r

. 2007) (ho ldi ng that plai nti ffs who

pleaded g ui lty lack standi ng to challen ge t he county’s collection of jail costs as appli ed to those who are “arr ested, book ed

and i mmedi ately released becau se of mi stake ” ) (i nternal

quotat i on marks omitted); ante , at 17 (Easterbroo k, J., concur

ring i n judgment). So the sub stanti v e co mp o ne nt of the dueprocess clai m drops out o f t he case becaus e the plai nti ff lac ks

standi ng to challen ge t he fee on thi s bas i s.

The remain i ng arg ument about defecti v e pr ocess also relies

o n a clai m about sub stanti v e flaws i n the or di nance, whic h

affec ts the analysi s o f t he p l a inti ff’s standi ng to challen ge the

fee o n procedural due-process gr ounds. As I’v e explain ed,

Mar kadonat os’s clai m about d epriv ation of process rests on a

premi se that the fee cannot be i mposed wi thout a predepr i v ation hearin g to test the v a l idit y of the arr est, or alter nati v ely

, that the V i lla ge mus t at least prov i de some postdepriv ation

procedu r e so that those who are wrongfully arr ested, nev er

charged, or f ound not gui lty may o btai n a refund. Again, thi s

(. ..co ntinued) 2

sub sid i ze the i l l egal d epri v atio n of thei r l i b erty .”)

.

See id. at 31 (“ [T] he onl y re as o n f o r W o od ri dge to l i nk i ts fee to arrests 3

rather tha n to convicti ons i s to take money fro m the i nnocent i n addi tio n to

the guil ty

.”)

.No. 12-2619 31

arg ument ties the procedural due-proc e s s c l a i m to a c onclus i on

about the substanti v e consti tutionali ty of the or di nance.

Restated, the arg ument i s essenti ally thi s: Becaus e the fee i s not

rat i onal as appli ed to those who are wrongfully arr ested, nev er

charged, or found not gui lty

, a hearin g i s necess ary to prev ent

i ts err oneous appli cati on to people inthese gr oups.

But Mar kadonat os doesn’t challen ge the v ali di ty o f his

arr est and has adm i tte d hi s gui lt incourt. That i s, he does not

contest any facts that w ould be relev ant to the hearin g that he

clai ms the Constituti on requires. As suc h, he has su ffer ed no

harm th a t i s fai rly tr aceable to the alleged depriv ation of

process about whi ch he c omplai ns.

The standi ng pro blem in thi s case straddles Codd v . V elger

,

429 U.S. 624 (1977), a nd C ar ey v

. Piphus

, 435 U.S. 247 (1978),

tw o cases that w ere deci ded a y ear apar t but seem to point i n

opposi te di rections. In Codd the Supr e me C ourt held that a

person c annot make a pr ocedural due-process clai m when he

does not assert that a factual di spute exis ts fo r a due-process

hearin g to resolv e. The cas e i nv olv ed a poli ce offi cer w ho l ost

his jo b duri ng the probat i onary phase of hi s employment

.

429 U.S. at 624–25. Hi s personnel fi le contai ned a repo rt that he

had atte mpted sui ci de, whi ch he clai med hurt hi s jo b prospects

at other law-en forcement agenci es. Id. at 6 2 6. Although as a

probat i onary employ ee he di d not hav e a proper ty i ntere st i n

hi s j o b, he clai med that the sti gmatizi ng nature of the repo rt

about hi s sui ci de atte mp t e nti tled hi m to a hearin g. Id. The

Court gr anted cert io r ari to deter mi ne whether the case came

wi thi n the doctrine establi shed i n Boa rd of Regen ts v

. Roth

, 408 U.S. 564 (1972), and Bishop v . W ood , 426 U.S. 341 (1976).

In the end, how ev er

, the Court found i t unnecessary to

deci de thi s questi on becau se the offi cer had not asser t e d that32 No. 12-2619

the repo rt of hi s sui ci de atte mpt w as false. Codd

, 429 U.S. at

627. The Court held that “i f the h earing mandated by the Due

Process Clause i s to se r ve a ny usef ul purpose, there mus t be

so me factual di spute betw een an employ er and a di sch arg ed

employ ee whi ch has some si gni fi cant bearin g on the employ ee’s reputat i on.” Id. The offi cer had clai med a right to a

hearin g to “clear hi s name.” Id. The Court conclu ded that

becau se “he does not challen g e the sub stanti al tr uth of the

material i n questi on, no hearin g w ould affor d a promis e of

achi eving that re sult for hi m.” Id. at 627–28.

In Car ey

, deci ded the followi ng y ear

, the Supreme Court

held that a v io l ation of procedural due process i s acti onable

wi thout proo f of actual damages. 435 U.S. at 26 6 –67.

E l e m e n ta ry a n d s e c on d a ry s chool students sought damages f or

d e priv ation of their due-process rights after they w ere suspended wi thout a hearin g for violati ng sch ool rules. The Court

he l d that the students w ere not required to prove a ct ua l

damages: “Ev en i f [the] sus pensi ons w ere j us t ifi ed, and ev en

i f t he y di d not suf fer any actual i njury

, the fact remain s that

they w ere depr i v ed of their ri ght t o pro cedural due process .”

Id. at 266. The Co urt remanded the case wit h speci fi c ins tr uctions to the di stric t court: If the court conclu ded that the

sus pensi ons w er e v ali d under sch ool rules, the clai m for

compens ator y damag es w ould fai l, but the students w ere

nonetheless entitled to “nomi nal damages not to exceed one

dollar” for the depriv ation of process. Id. at 267.

The results i n Codd and Car e y seem contradic tor y

, but the

T enth Ci rcui t persuasi v ely explaine d the di fference betw een

the tw o cases i n Rector v

. City & County of Denver

, 348 F .3d 935,

944 (10th Ci r

. 2003). Rector i nv olv ed a challen ge to the parkingenforcement reg i me i n the Ci ty of Denv er

. The Ci ty’ s standardNo. 12-2619 33

parking tic ket form notifi ed the reci pi ent that the parking fi ne

mus t be pai d or contested wi thi n 20 days and also w arned that

i f payment w as not receiv ed wi thi n that 20-day period, certain

late fees a ut o ma tic ally appli ed. Id. at 937–38. The plai nti ffs —tw o people who w ere tic ket ed for parking violati ons and

pai d the fi nes—s ued t he Ci ty clai mi ng that the late-fee notic e

w as mi sleadi ng becau se i n actuali ty

, “as long as the reci pi ent

appears before the parking refer ee wi thi n tw enty days, the late

fee i s not i mposed.” Id. at 942. They complaine d that the

“ ca teg or i cal” language on the face of the tic ket “pressures

reci pi ents to p ay rat her than challen ge the tic ket ” and thus

violates due process becau se i t “restr i cts a putativ e violator ’s

oppor tuni ty t o be heard and to present obj ecti ons.” Id.

But the plai nti ffs i n Rector di d not assert any basi s on whi ch

they w ould hav e contested their tic ket s. Th is cast si gni fi cant

doubt on their standi ng to sue for i nterfer en ce wit h their

procedural rights. Reconci li ng Codd and Car ey

, the co ur t

ext rapolat ed an i mport ant standi ng prin ci ple i n procedural

due-process cases :

The di sti ncti on betw een Codd and Car ey li es

i n adopting an ex ante perspecti v e on the right to

due process hearin gs. The Car ey plai nti ffs deni ed

the sub stance of the underlyi n g a l l e gations made

again st them. Thei r i njury

, view ed ex ante

, i s that

they w ere deni ed the oppo r t un i ty to convin ce

sch ool admi ni strat or s that they should not be

sus pended. Thus whi le ex post

, their l o ss on the

merits precluded any clai m for compens ator y

damages, t he d e nial o f t he oppor tuni ty to sw ay

sch ool offi ci als tow ard their caus e consti tuted an

i njury i n fact

. B y contrast, the plai nti ff i n Codd34 No. 12-2619

di d not challen ge the subst a nt i al tr uth of the

damagi ng material set fort h i n hi s fi le. Even by

hi s own recko ni ng of the facts, the he a ring

w ould not hav e vindi cated any rights.

Rector , 348 F .3d at 944 (i nternal ci tations omi tte d).

The Rec to r plai nti ffs w ere more li ke the poli ce offi cer i n

C odd than the students i n Car ey

. They di d not asse r t a ny

gr ounds on whi ch they w ould hav e contested their parking

tic ket s. So the T

enth Ci rcui t conclu ded that they lacked

standi ng to clai m a violati on of their he a r ing rights. Thei r

i njuries—p ayment of the parking fi nes—w ere not fai rly

tr aceable to the alleged defect i n the notic e; their hearin g rights

w ere unaff ected “becau se there w a s no thi ng for a hearin g to

deci de.” Id. at 945.

As Rector explain s, under Car e y a p e rson clai mi ng a

violati on of procedural rights may hav e an i njury i n fact

reg ardless of whether he w ould hav e prev ai led at the hearin g

that i s the sub ject of hi s clai m. “P art i es may suf fer i njury i n fact

from defecti v e procedures ev en i f, at the end of the day

, t he y

w ould not hav e prev ai led o n t he me r i ts.” Id. at 943; see also

Buckley v

. Fitzsimmons

, 20 F .3d 789, 79 6 (7 t h Ci r

. 1994) (not i ng

that a “deni al of procedural rights i s a form of i njury ”). But the

standi ng i nqui ry does not end wi th a f i ndi ng of in jury i n fac t.

Codd shows that i n a due-process case, the pla int iff mus t also

allege that he w ould hav e challen ged something at the hearin g

that he contends i s consti tutionally r e qui red. See Rector

,

348 F .3d at 944 (ci tin g Michael H. v

. Gerald D.

, 491 U.S. 110, 127

n.5 (1989) (plurali ty opin i on) (“W e cannot gr asp the concept of

a ‘ right to a hearin g’ on the part of a person who claims no

sub stanti v e entitlement that the hearin g wi ll a ssertedlyNo. 12-2619 35

vind i cate.”)). Other wi se his i njury i s not “fai rly tr aceable” to

the alleged depr i v ation of process.

Here, Mar kadonat os does not wi sh to contest any facts that

w ould be r elev ant to the hearin g he clai ms is consti tut io nally

req uir e d ; he concedes that he w as lawfu lly arr ested for ret ai l

theft and admi tte d hi s gui lt i n court. Accordi ngly

, hi s i njury i s

not fai rly tr aceable to the allege d co nsti tutional violati on on

whi ch hi s cl ai m rests.

Judge P osner does not di rectly address the p l a i nti ff’s

standi ng, but the i ssu e can’t be ski pped ov er o r sum mari ly

brushed as i de. See DaimlerChrysl er Corp. , 547 U.S. at 341 (“If a

di spute i s not a proper case or contro v ersy

, the courts hav e no

bus i ness deci di ng i t, or expoundi ng the law i n the course of

doin g so.”).

In hi s co nc ur rence Judge Easterbro ok wri tes that

Mar kadonat os has standi ng to rais e a sub stanti v e challen ge to

the or di nance, but only to the ext ent that he “mai ntai ns

... that

th e fe e i s consti tutionally obnoxious ev en when the arr est i s

supp or ted by probable caus e a nd follow ed by a convic tion.”

See ante

, at 17 (Easterbroo k, J., concu rr i ng i n the judgment). But

Mar kadonat os hasn’t adv anced a clai m that muni ci pali ties are

consti tutionally forbid den to asses s a book i ng fee on people i n

this catego ry

. He has nev er arg ued that book i ng fees are

arbi tr ary and i rr a t io na l i n all ci rcums tances, qui te apart from

the processes used to col l e ct t hem. Rather

, the “sub stanti v e”

di mensi on of hi s due-process clai m has alw ays been t ha t t he

fee cannot rat i onally be appli ed to persons who are wrongfully

a rr ested or i nnocent. Indeed, he expr essly accepts that i t’s 4

See Appe l l ant ’s Br

. at 28 –2 9, ECF No. 62 (“ I t i s i ndisputable tha t the 4

(co ntinued. ..)36 No. 12-2619

rat i onal to i mpose a book i ng fe e on those who are found

gui lty

. 5

This bri ngs me to a fi nal poin t about Judge Hami lton’ s

anal y sis of standi ng, whi ch suggests that Mar kadonat os and

ev ery one e l se who pai d the book i ng fee may challen ge i t

si mply by virtue of havin g pai d i t—in other w o r d s, t hat the

pay or ’s personal ci rcums tances just do not matter

. That’s tr ue

i n gener al for fa cia l consti tutional challen ges. See Ezell v

. City

of Chicago , 651 F .3d 684, 697 (7th Ci r . 2011) (“In a faci al consti

tutional c hallenge, i ndi vidu al appli cati on facts do not matter

. Once standi ng i s establi shed, the pl ai nti ff’s personal s i tuation

becomes i rr elev ant.”). A nd i t’s also tr ue that Mar kadonat os

asserts that he i s mounti ng a faci al challen ge to the fee. But he

nev er actually does so. As I ’v e explain ed, both di mensi ons o f

hi s due-process clai m rest on the s ubs tantiv e premi se that the

fee i s i rr ational as appli ed to those who are wrongfully

arr ested or i nnocent.

(. ..co ntinued) 4

gov ernment cann ot i mpose fee s on pers o ns arrested fo r no reason, fo r

i nv i di ous re as o ns

, or simpl y to hara ss the arrestee.

... So me separate

showing i s therefo re consti tutio nall y necessary to justi fy charging an

arrestee fo r the has sle of b ei ng arrested. What ev er tha t consti tutio nall y

requir e d sh owi ng might b e—pro b ab l e cause, prepo nderance of the

e vi dence, guil t b ey ond a reasonab l e do ub t—there i s no questio n tha t

W oo dri dge wil l b e una b l e to mak e tha t showing fo r man y peo pl e whom i ts

pol i ce arrest, such tha t charging th ose arrestees a $3 0 fee i s consti tutio nall y

unjustif i ed.” ).

See id. at 26 (“ W

oo dri dg e c o u l d ei ther i ncorp or ate an ass essment of the 5

fee ’s l egi timacy i nto the pro b ab l e cause hearing or coul d simpl y add the fee

to the panopl y of co sts impo sed o n those who are crimi nall y co nv i cted or

pl ead gui l ty

.”)

.No. 12-2619 37

T o r epeat, M ark adonato s does not arg ue that the substantiv e co mpo nent of the Due Process Clause prohibi ts Woodridge from requiri ng lawfu lly arr ested and actually gui lty

persons to pay a book i ng fee. He arg ues only that sub stanti v e

due process prohibi ts the V i llage from requiri ng an unl awfully

arr ested or actually inn oc e n t p erson to pay a book i ng fee. And

hi s claim a bo ut defecti v e pr ocess posi ts that a hearin g i s

consti tutionally r equi red to ensure t hat the pay or has a t least

been lawfu lly arr ested (bec ause i t’s i rr ational t o require an

un l a wf ully arr ested or i nnocent person to pay). These arg uments are conti ngent, not catego ric al, and as suc h they require

a plai nti ff wi th the relev ant characteris tic s to connect the i njury

i n fact—here, payment of the fee—to the alleged consti tutional

wrong. That ’ s what the tr aceabi li ty element i n standi ng

doctrine i nsi sts upon.

Becaus e Mar kadonat os lacks standi ng to br i ng the clai ms

he has actually rais ed, I w ould v acate and remand wit h

i nstructi ons to dis mi ss the c ase for lack of j uri sdi cti on.38 No. 12

‐ 2619

H AMILTON

, Circuit Judge

, joined by W OOD

, Chief Judge

, and R OVNER and W ILLIAMS

, 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 are42 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, Judge44 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 Gulf46 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 againstNo. 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, plaintiffNo. 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 newNo. 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.