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# United States Court of Appeals For the Seventh Circuit

No. 12-2619
J E R R Y G. M ARK

AD ONATO S

, Plaintiff-Appellant,

v.

V I L L A G E OF W OOD RI D G E, Defen dant-Appellee.

Appe al f ro m the Uni ted S tates Distri ct Co urt fo r the Nor thern Distri ct o f Il l i noi s, Eastern Di v i sio n. No. 11 -CV- 70 06 — Jame s F. Hold erma n, Judg e.

A RGU E D M A

Y 30, 2013

— D E C ID E D J ANUAR Y 8, 2014

Before S YKE S a nd H A M ILT O N, C i r c u i t Ju dg e s , and S TAD TMU E L L E R

, District Judge. *
S TAD TMU E L L E R

, D i s tr i ct Judge. Under Ti tle 5 of i ts Vi llage Code, the Vi llage of Woodr i dge char g es ever y arr estee in i ts
cus tody a $ 30 book ing fee. Indeed, after Woodr i dge poli ce
arr ested t he plainti ff- appellant for ret ai l theft on January 8,

The Hono rab l e J.P. Stadtmuel l er of the Eastern Distri ct of W i sc onsi n, * sitti ng b y desi gna tio n.2 No. 12-2619 2011, the Vi llage collected it s $ 30 book ing fee from hi m, wi thout any oppor tuni ty to contes t th at collecti on ei ther before

or after the fee was take n. Mr

. Mar kadonat os i s not alone—Woo dridge has take n the same $30 fee from each of the large numb er of people arr ested and book ed in i ts vic ini ty. Thus, Mr

. Mar kadonat os fi led the putative classacti on sui t at hand, under 42 U.S.C. § 1983, asserting that Woodr i dge’s book ing fee violates both the procedural and sub stanti ve due pro ce ss rights of the clas s members. The di stric t judge di smi ssed Mr

. Mar kadonat os’ ini tial and amended compl a int s, finding that Mr

. Mar kadonatos had not stated a clai m for relief. We agr ee. Mr

. Mar kadonat os’ procedura l due process arg ume nt necess arily fai ls, and he lacks standing to seek relief under a sub stanti ve due process clai m. We there fore affi rm the deci si on of the dis tr i ct court. I. Background Woodr i dge enacted Muni ci pal Code 5-1-12( A), whi ch i mposes a $30.00 book ing fe e o n any person subject to a
cus todial arr est. (Am. Compl. ¶ 12). Woodr i d ge c ol lects thi s fee wi thout any hearin g, and does not offer arr estees any oppor tuni ty to challen ge the deprivati on or seek reimb ursement. (Am. Compl. ¶¶ 16–17). Mr

. Mar kadonat os was arr ested and charged wi th ret ai l thef t o n January 8, 2011, and take n to jail. (Am. Compl. ¶¶ 18–19). He was book ed, and a t that tim e, Woodr i dge collected i ts $30.00 book ing fee from hi m. (Am. Compl. ¶ 20). Woodr i dge prov i ded Mr

. M a r k adonato s wi th a book ing fee receip t, but di d not ev er pr ov i de hi m wi th a hearin g at whi ch he could challenge the book ing fee. (Am. Compl. ¶ 20).No. 12-2619 3
Thereafte r, a c ou rt or d e re d th a t Mr

. Ma rk a d onatos undergo

a period of supervis i on, pursuant to Illinoi s law. (Am. Compl. ¶ 21). Mr

. Mar kadonat os suc cess fully completed that period of superv i sed release, and there fore received an adjudi cati on of

“ no t gui lty” on hi s recor d. (Am. Compl. ¶ 22). Despi te that favor able adjudi cati on, Mr

. Mar kado natos never had an oppor tuni ty to seek the return of hi s bo o k ing fee, and he has

never received a refund o f t he money that Woodr i dge se i zed from hi m. (Am. Compl. ¶¶ 23, 24). Accordingly, he fi led sui t on behalf of hi mself and all of the

arr estees who have been charged the book ing fee, pursuant to 42 U.S.C. § 19 8 3 , a r g uing that the lack of a procedure to challen ge the book ing fee, as applie d to each of arr estee indi vidu ally, violates the a rr e s te e s ’ p ro c e d u ra l an d sub stanti ve due process ri ghts. (Am. Compl. ¶¶ 1, 27–28, 35–44). After allowin g M r. Mar kadonat os to fi le an amended complaint, the di stric t court di smi ssed the ca se for fai lure to state a clai m up o n whi ch relief could be gr anted, wi thout rul ing on the plainti ff’s motion to certify a clas s. (Order , 7/10/12, at 7, 9). Mr

. Mar kadonat o s appealed that deci si on to thi s Court, arg uing that the di stric t court err ed in di smi ssing hi s amended complaint. We di sagree and affi rm. II. Disc uss ion The parties’ bri efs and arg uments have focus ed up on sub stanti ve i ssu es relat ing to procedural and subs tantive due process, but before we reach those sub stanti ve arg uments, we
mus t fi rst address the i ssu e of standing. We, of course , l ack4 No. 12-2619 jurisdi cti on ov er thi s matter , as di d the di stric t judge, to the ext ent that we deter mine that the plainti ff’s allegations do not establi sh a “case or contro ver sy.” See, e.g. , Luj an v. Defen ders of Wildlife, 504 U.S. 555, 560 (1992). After we make the standing deter minati on, we may t he n turn to the sub stanti ve legal i ssu es. In doin g so, fi rst, we mus t deter mine whether the di stric t court err ed in concluding that Woodr i dge’s book ing fee does not vi olate the procedural due process r i ghts of Mr . Mar kadonat os. Second, we must deci de whether t he di stric t court err ed in di smi ssing Mr

. Mar kadonat os’ sub stanti ve due process challeng e to the Woodr i dge boo kin g fee. It i s imp or tant to di stingui sh between Mr . Mar kadonat os’ procedural and sub stanti ve d ue p ro cess clai ms, for the two concepts are di stinct from one another

. Procedural due process rights guarante e that the state not deprive an indi vidu al of hi s
or her proper ty wi t ho ut prov i ding adequate procedural safeguards again st the err oneous deprivati on there of. See, e.g. , Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976). To deter mine whether an indi vidua l ’ s procedural due process rights have been violated, courts gener ally perfor m a three -part balanc ing test, fi rst outlin ed by the Supreme Court in Mathews

. The right t o su bs tantive due process, on the other hand, i s more nebulous, and typical ly e mployed by courts to prot ect again st arbi tr ary state acti on that shocks the consc i ence. County of Sacramento v. Lewis , 523 U.S. 833, 846 (1998); Montgo mery v. Stefaniak , 410 F.3d 933, 939 (7th Cir. 2005). Regar dless of the di ffer e nces between the concepts, Mr

. Ma rk a d on a to s ’ arg uments on both procedural and sub stanti veNo. 12-2619 5
due process present prim arily legal i ssu es, whi ch we rev i ew de
novo
. Ray v. City of Chicago , 629 F.3d 660, 662 (7th Cir. 2011). A. Standing There are essenti ally three elements for standing. First, the p lainti ff mus t have suffered an “injury in fact,” requiring an invasi on of the plainti ff’s legally prot ected intere st that i s both concrete and pa r ticulari zed and actual or i mminent. Second, the injury mus t have been caus ed by the conduc t he complains of. And, thi rd, i t mus t be li kely, as opposed to merely specu lative, that a deci si on in the plainti ff’s favor wi ll redr ess hi s injury

. Luj an v. Defen ders of Wildlife, 504 U.S. at560–61. Here, our standing concerns stem prim ar ily fr om the p l a intiff’s asserted injury in fact. Mr

. Mar kadonat os co m p l a in s 1 that he was deprived of $30 as a result of Woo dridge’s collection of the book ing fee. And, indeed, Woodr i dge’s collecti on of $30 i s conc ret e, part i culari zed, and actually di d occur. However , we sti l l qu e s ti on wh e ther Woodr i dge’s collecti on of the book ing fee was an invasi on of Mr

. Mar kadonat os’ legal rights, particu larly wi th reg ard to hi s sub stanti ve due process
c l ai m. On hi s procedural due process clai m, Mr

. Mar kadonat os has pled that he was deprived of $30 wi thout a legally adequate oppor tuni ty to challenge that deprivati on. And, to the ext ent that he i s corr ect, he has standin g t o assert that clai m, although thi s analysi s requires us to delve more deep l y into

To the extent tha t w e find an injury in fact, there can b e no questio n tha t 1 such in ju ry is fairl y traceab l e to Woo dri dge’s actio n and woul d b e redr essed b y a deci sio n in M r. M arka do nat os’ f av or
.6 No. 12-2619
the sub stanti ve aspects of Mr

. Mar kadonat os’ procedural due process clai m. Hi s sub stanti ve due process clai m, on the other hand, gives
us pause. Whereas Mr

. Mar kadonat os’ procedural due process clai m clearly ide nti fi es Wo odridge’s alleged invasi on of legal rights by its ver y nature—depr i vat i on of proper ty wi thout legally adequate process— Mr

. Ma rk a d on a to s ’ sub stanti ve due process clai m presents a much vag uer alleged inv a sio n. He atte mpts to arg ue that collecti on of the $30 fee from indi vidu als li ke hi m who have been adjudi cated “not guilty” violates sub stanti ve due process. Mr

. Mar kadonat o s’ si tuation, however , i s much narro wer than that. In fact, he was arr ested for
cause and was adjudi cated not gui lty only after co mp l e tin g a ter m of supervis i on as a result of admi tting the factual basi s for the charges again st hi m. See 730 ILCS 5/5 -6 -1(c ), 5/5-6-3.1( e), 5/5-6-3.1( f). I n the narro west sens e, the event ual not gui lty adjudi cat io n is lar gely i rr elevant, as Wo odridge collected the book ing fee on the basi s of the arr est. Thus, the fact of a forcaus e arr est i s much more probat i ve of the questi on of whether collecti on of the book ing fee from a cus todial arr estee who was
arr ested for caus e violates sub stanti ve due process. It i s certainly a relev ant aspect of Woodr i dge’s collecti on of the book ing fee from Mr

. Mar kadonat os, and cannot be i gnor ed as part of the factual backgro und behind the i mposi tion of the fee. As such, insofar as Mr

. Mar kadonat os wishes to challen ge W o odridge’s book ing fee on the basi s of sub stanti ve due process, he may do so only to t he ext ent that Woodr i dge’s

or dinance actually appli ed to hi m, as a for-cause arr estee whoNo. 12-2619 7

was later adjudi cated not gui lty. Therefore , in addressing Mr

. 2 Mar kadonat os ’ sub stanti ve due process clai m, the Court wi ll confine i ts analysi s to addressing the subs tantive due process i mpli cati ons of i mposing the book ing fee upon for-cause

arr estees taken into cus tody

. B. Procedural Du e Process H a vin g foun d th a t Mr

. Ma rk a d on atos has standing to assert hi s procedural due process clai m to the ext ent he has alleged

an invasi on of hi s legally-pro tected intere sts, we mus t perfor m the Ma th e ws v. Eldridge balanc ing test to deter mine whether Mr

. Mar kadonat os stated a clai m for a procedural due process violati on. Under that test, we mus t balanc e (1 ) Mr

. Mar kadona t o s’ private intere st in hi s $30; (2) the ris k of

err oneous deprivati on under Woodr i dge’s o r d inanc e and probable value of any addi tional saf e g uards; and (3) the Gover nment’s intere st, “inclu ding the funct ion involv ed and the fi scal and admini strat i ve burde ns that the addi tional or sub sti tu te p ro c e d u ra l re qu i re m e nt w ou l d e nta i l

. ” Mathews , 424, at 334–35. Applyin g thi s balanc ing test, we mus t conclu de that the d i s tri ct court was corr ect in holding that Mr

. Mar kadonat os cannot state a procedural due process v io lation based upon Woodr i dge’s b ook ing fee ordinance. We ther efore affi rm that aspect of the di stric t court ’s deci si on.

In other word s, M r
. M ar k ad onatos l acks stan di ng to mak e a b ro ader 2 chall enge a gainst appli catio n ofthe fee to a l l a rrestee s who a re ev entuall y adjudi cated not guil ty. In particul ar, he l acks stan di ng to ass ert a cl aim tha t appli catio n of the fee to those arrested witho ut cause v i ol ates substantive due p ro cess.8 No. 12-2619
1. Mr. Ma rkado natos’ Privat e Interest Wi thout a doubt, Mr

. M a r k adonato s has an intere st in ret ainin g his $30. That amount i s small, and Woodr i dge i s certainly corr ect to point out that such small cash amounts are gener ally given li ttle wei ght under the Mathews balanc ing test. (Appellee’s Br. at 8–9 (c it ing Van Harken v. Chicago , 103 F.3d 1346, 1353 (7th Ci r. 1997); Sic kles v. Campbell Cty. , 501 F.3d 726, 729–30 (6th Ci r. 2007); Slade v. Hampton R oads , 407 F.3d 243, 247, 251–53 (4th Ci r. 2005); Broussard v. Parish of Orleans , 3 18 F.3d 644, 647–48, 657 (5th Ci r. 2003)). Nonetheless, we mus t conclu de that the $30 fee i s entitled to at least some wei ght in the balancing schem e. 2. Risk of Erroneous Depri vatio n The ris k of an err oneous deprivati on, here, i s practic ally non-exi stent. Furt hermor e, to the ext ent that any deprivati on does exis t, addi tional safeguards would not in any way reduce the risk thereo f. On the fi rst of those poin ts—the fact that ris k of err oneous deprivati on i s practic ally non-exi stent—one need only look to the Woodr i dge sch eme. Under the sch eme, ever y person who i s arr ested i s charged the book ing fee, r e g ardless of whether they were arr ested wi thout p rob able caus e. Thus, a Woodr i dge employee deter mining whether to charge the bo o kin g fee i s presented wi th a binary choi ce: “yes” the book ing fee mus t be charged to a person who has been arr ested and i s being book ed by the Vi llage; or “no” the book ing fee mus t not be charged to
a person who has not been arr ested and i s not being book ed by the Vi llage. Thi s deter minati on i s made all the easi er by the fact that the book ing fee i s collected only upon an indi vidu a l ’ sNo. 12-2619 9

arr est and bo oking. Thus, the Court cannot envis i on any si tuation in wh ich one who has not been arr ested i s charged the book ing fee. That i s, i t i s only when one i s arr ested and book ed that the collecti on of the fee occurs, thus making the potent i al for er ro neous depri vat i on practic ally non-exis tent. There i s practic ally no ris k of an err one o us deprivati on, 3 and, there fore, the need fo r a hearin g—part i cularly a formal hearin g—is ext remely low. Barbia n v. Panagis , 694 F.2d 476, 488 (7th Ci r. 1 9 8 2 ) (ci tin g, among many other cases, Logan v. Zim m e rman Brush Co. , 455 U.S. 422 (1982); Codd v. Velger, 429 U.S. 624 (1977))

. Here, Mr

. Mar kadonat os was arr est e d and later appeared before a judge. Thus, i f he beli eved that he was not or should not have actually bee n arr ested, he had the oppor tuni ty to alert both the arr esting offi cer and t he judge hearin g hi s case of that fact. Whi le nei ther of these oppor tuni

ties i s formally prov i ded for in the statute, they are more than suffi ci ent to safeguard ag a ins t an err oneous deprivati on that wi ll practi cally never o ccu r. Mor eov er, even if

there were somepotent i al for er ro neous deprivati on, we ca nn o t envis i on any set of addi tional procedures t hat would reduce that risk. A hearing, either before o r after the tim e of book ing, to deter mine whether any indi vidu al

We must note, here, tha t Mr. Markadonatos se e ms t o fundamenta l l y 3 misunderst an d this por tio n of the ana l ysis. He appears to argue tha t any col l ecti on of fee s fro m a perso n who i s ulti mat el y adjudged “no t guil ty” i s
an e r r o neous depr i v atio n. But tha t goes outsi de of the pro cedur al d u e pro cess ana l ysis and i nto the sub stantive due pro cess realm, b y i gnori ng the text of the statu te, which i mposes the bo o k i ng f ee on any perso n who i s arrested and b oo ked, and del v i ng i nto a prescri pti v e argumen t on wha t the statu te should be.10 No. 12-2619
i s subject to the book ing fee would be large ly meaningless—the hearin g would establi sh t hat the arr estee was
arr ested and book ed. And that fact, alone, subjects the arr estee to the fee. Thus, there would be practic ally no value in requiring any addi tional procedure. 3. Woo dridge’s Governm ental Interest Woodr i dge has an intere st in the speci fi c $30 i t too k from Mr

. Mar kadonat os, as that amount should o ff se t at least a port i on of the admini strat i ve costs associ ated wi th processing Mr

. Mar kadonat os’ arr est. Beyond that sp eci fi c intere st, Woodr i dge also possesse s a more gener al intere st in the func tion involv e d in collecting $30 from indi vidu al arr estees li ke Mr

. Mar kadonat os, insofar as i t wi shes to offset the myriad of costs a ss o ciated wi th tempor arily detain ing all of Woodridge’s arrestee s. Fin ally, we mus t also note that W o o d ridge also has an intere st in avo i ding an addi tional hearin g before or after taking the $30 book ing fee. Such an addi tional admini strat i ve procedure would li kely entail sub stanti al costs, such as the salary costs of the person desi gnated to presi de ov er the hearin g and

arr esting offi cers requi red t o att end and testi fy. 4. Balancing of the Mathews Factors Balancing each of the above-described Mathews factors, we conclu de that the di stric t court was corr ect to hold that Woodridge’s book ing fee or dinance does not violate Mr

. Mar kadonat os’ pro cedural due process rights. Sim ply put, Woodr i dge’s gener al int e r est in cover ing book ing costs of the arr estees in i ts cus tody, and speci fi cally inNo. 12-2619 11
offsettin g the costs of holding Mr

. Mar kadonat os tempor arily, outwei ghs Mr

. Mar kadonat os’ own int erest in hi s money, especi ally when balanc ed wi th the exceedingly low li kelih ood that the fee would be i mposed o n him or other arr estees
err oneously. There is some mini mal amount o f prot ecti on for

or dinary ci tizens, insofar as they may arg ue to an arr esting offi cer or later to a judge that the fee should not be charged again st them or should be returned. That prot ectio n i s more th an suffi ci ent to safeguard again st the exceedingly low ris k that a person who i s no t arr ested wi ll have the book ing fee take n from hi m. Thi s i s fully consi stent wi th the opini ons of other ci rcui ts, whi ch have deter mined that ro utine accountin g
a nd deducti on of fees from detain ees i s not consti tutionally problematic, due to the low amount of di screti on and mini mal ris k of err or
. See, e.g. , Sic kles v. Campbell Cty. , 501 F.3d 726, 730 (6th Ci r. 2007); Slade v. Hampton Roads Reg’l Jail, 407 F.3d 243, 253–54 (4th Ci r. 2005); Tillman v. Lebanon Cty. Corr. Facili ty, 221 F.3d 410, 422 (3d Ci r. 2000). Fin ally, though thi s goe s to the heart of Mr

. Mar kadonat os’ sub stanti ve due process chal l e ng e, we mus t also note that,

even i f we were to deter mine that there was some potent i al for

err oneous deprivati on, due, for instance, to the ris k of a false

arr est, t he r e are state remedies availab le to address such a wrong, und er whi ch arrestees would be entitled to the ret urn of their book ing fee. And, so long as there i s such a meaningful post-deprivati on remedy availab le , t he re i s no violati on of

arr estees’ procedural due process rights. See, e
. g. , Hudson v. Palmer, 468 U.S. 517, 533 (1984); Doherty v. Ci ty of Chicago , 75 F.3d 318, 323 (7th Cir. 1996).12 No. 12-2619
C. Substantive Du e Process As we menti oned above when d isc uss ing standing, Mr

. M a r k adonato s may challen ge Woodr i dge’s book ing fee on sub stanti ve due process gr ounds only to the ext ent i t actually appli ed to hi m, as a for-cause cus todial arr estee who was later adjudi cated not g ui lty. Thi s i s a steep hi ll to cli mb. Co ur t s g e nerally employ sub stanti ve due process to prot e ct plainti ffs “only again st arbi tr ary gov ernment acti on that ‘shocks the consc i en ce.’” Montgo mery, 410 F.3d at 939 (quoting Tun v. Whitticker , 398 F.3d 8 9 9 , 902 (7th Ci r. 2005)). In fact, “[s] ubs tantive due proces s depends on the exis tence o f a fund amental liberty intere st.” Idris v. Chicago , 552 F.3d 564, 566 (7th Ci r. 2009) (ci tin g Washington v. Glucksberg, 521 U.S. 702, 719–22 (1997))

. In the absenc e of

a fund amental right, we may only rev i ew the law to deter mine whether i t i s arbi tr ary , such that it wo uld flunk the rat i onalbasi s test t ha t a ppli es to all legis lation. Idris , 552 F.3d at 566 (ci tin g National Paint & Coatings Ass’n v. Chicago , 45 F.3d 1124 (7t h Ci r. 1995); Saukstelis v. Chicago , 932 F.2d 1171 (7th C ir

. 1991)). Mr

. Mar kadonat os’ c omplaint does not i mpli cate a fund amental right. Th e $ 3 0 fee i s ext remely modest, and of an amount that does not ris e to the level of a fu ndamental r i ght. Id. (“The intere st at stake i s a $90 fine for a tr affi c infracti on, and the Supreme Court has never held that a proper ty intere st
so modest i s a fu ndamental right.”). Accordingly, we do not beli eve that any fund amental rig ht i s i mpli cated, here, and there fore we need only ensure that Wood ridge’s book ing fee i s rational and n ot arbi tr ary
.No. 12-2619 13
Woodr i dg e ’s book ing fee clearly pass es the rat i onal basi s test. In i mposing the fee, Woodr i dge hopes to offset the cost of book ing arr estees, or at the ver y least to collect rev enue, ei ther of whi ch i s a legiti mate goal. Id. The collecti on of $30 from each for-cause arr estee i s clea r l y rat i onally relat ed to that goal, seeing as i t take s money to co ver the admini strat i ve costs of book ing from the indi vidu als whose acti ons caus ed the cost to begin wi th. Cert ainly, there are some ineffi ci encie s in the sy s te m
. But, an i mpreci se match between process and objective i s permi ssi

ble, even if g r e ater preci si on i s possi ble. See, e.g. , Vance v. Bradley, 440 U

. S

. 93, 108–09 (1979); Heller v. Doe, 509 U.S. 312, 320–21 (1993); Pro-Ec o, In c
. v. Bd. of Comm’rs of Jay Cty. , 57 F.3d 505, 514 (7t h C ir

. 1995). Therefore , we mus t
co nc lude t hat Woodr i dge’s book ing fee i s r ational, and i s not in any way arbi tr ary
. 4
For these reasons, we must conclu de that Woodr i dge’s book ing fee does not violate Mr

. Mar kadonat os’ right to sub stanti ve due process. The di stric t court was co rr ect to di smi ss that port i on of hi s clai m, and we affi rm in that reg ard. III. Conclusi on For these reasons, we are obli ge d to conclu de that Woodridge’s book ing fee does not violate Mr

. Mar kadonat os’ rights to procedural or sub stanti ve due process. The di st r ict court

To the extent that M r. Markadonatos may ma ke an argum ent under the 4 Equal P r o t e c t i o n Cl ause ( and then onl y to the extent that the argumen t i s not waived, which i s highl y deba tab l e), such an argumen t woul d nonethel ess fail under the sam e rati onal b asis ana l ysis.14 No. 12-2619

corr ectly di smi ssed thi s case, and accordingly we A F F I R M that deci si on.No. 12-2619 15
S YKE S , Circ uit Judge, concu rr ing. I jo in Judge St adtmueller’s opini on for the court. I wr it e to hi ghli ght a key conceptual di stincti on that separates my view of thi s case from Judge Hami lton’s. Mar kadonat os arg ues that the Vi l l a g e of Woodr i dge or dinance i mposing a $30 jail book ing fee violates hi s right to procedural an d sub stanti ve due pro cess . The crux of hi s procedural due-process c lai m is that t he fee i s collec ted automatic ally, at the tim e of cus todial arr est and bo o k ing, wi thout any formal process at all. The crux of hi s substanti ve due-process clai m is that the fee i s collected from ever yone who i s arr ested and book ed into the jail reg ardless of whether the arr est was lawfu l, a cri minal charg e i s fi led, or t he person i s found gui lty. As Judge St adtmueller explain s, Mar kadonat o s lacks standing to challen ge the Vi llage’s book ing fee on sub stanti ve due-process gr ounds. Mar kadonat os doe s not allege that he

was arr ested wi thout probable caus e; nor does he allege th a t he

was never charged wi th a cri me, that the charge again st hi m was di smi ssed, or that he was acqui tte d. To the contrar y, i t i s undi sputed that Mar kadonat os was lawfu lly arr ested and charged wi th ret ai l the ft, enter ed a gui lty plea, and was sente nced to a 12-month ter m of supervis i on and or dered to pay var i ous court costs and cri minal-j us t ice fees. He alleges that “[a]t the conclu si on of the supervis i on[,] the charge on hi s
recor d wi ll be li sted as ‘not gui lty’ .” Hi s bri ef ci tes 730 I L L

. C OMP

. S TAT

. 5/5-6-1( c) a s the statuto ry authority for thi s condi tional di sposi tion, but t he court’s sentencing or der doesn’t r efer to that stat ute. Regar dless, the i mport ant poin t for our purpo ses i s that becau se Mar kadonat os concedes that he was arr ested on16 No. 12-2619 probable caus e, was charged wi th ret ai l t heft, and pleaded gui lty as charged, he has no standing to clai m that the book ing fee i s sub stanti vely unc onsti tutional becau se i t appli es to all

arr ested persons whether or not the arr est was lawfu l, a charge i s fi le d, or a suc cess ful prosecuti on ensues
. See Sic kles v. Campbell County, Ky. , 501 F.3d 726, 732 (6th Ci r. 2007) (holding that plainti ffs who pleaded gui lty lack st anding to challen ge county’s collecti on of jail costs as appli ed to those who are “arr ested, bo o k e d and i mmedi ately released becau se of mi stake”). Acco r dingly, the di stric t court proper ly di smi ssed the subs tantive due-process c lai m. That leaves the procedural due-process clai m, whi ch fai ls for t he reasons Judge Stadt mueller has explained.
In hi s di ssen t Judge Hami lton maintains that the bo oking fee i s in sub stance a cri minal fine and mus t “awai t the outcome of a cri minal prosecuti on.” Di ssent at 20. That’ s a cl ai m about the content of the book ing-fee or dinance—a sub stanti ve challeng e t o the Vi llage’s poli cy deci si on to apply the fee to
e ve ry arr ested person rat her than just to those who are char ge d wi th and found gui lty o f a crime. It may be a goo d clai m, but Mar kadonat os has no standing to make i t becau se he was
arr ested on probable caus e, charged wi th a cri me, and pleaded gui lty as charged. To say that the book ing fee i s unc onsti tutional becau se i t i s collected from all arr e st e d persons—even those who are
arr e st e d wi thout probable caus e, never charged, win a di smi ssal, or are acqui tte d—i s to say that the fee or dinance i s
unc onsti tutional in substance

. It is to say, as Judge Hami lton does in hi s di ssen t, that the book ing fee i s sub stanti velyNo. 12-2619 17 justifi able only as a fine—that i s, only as part of the sub stanti ve p un ish ment for a cri me. He may be right about that. But we cannot enter tain that sub stanti ve clai m here becau se Mar kadonat os lacks s tanding to make i t.18 No. 12-2619
H AMI L TON

, Circ uit Judge, di ssen tin g: Thi s should be a si mple case. The village’s “book ing fee” or dinance i s unc onsti

tution a l o n i ts face. It take s proper ty from all arr estees—the gui lty and the innocent ali ke—wi thout due process of law. The deprivati on occurs at the tim e of arr est, i mmedi atel y and finally. It occurs based on only the say-so and perhaps even the whi m of one arr esting offi cer. By no stret ch of the i maginati on
ca n t ha t be due process of law. The fee i s in sub stance a cri minal fine, modest but a fine nonetheless, and i t i s i mposed reg ardless of the validi ty of t he arr est and reg ardless of whether there i s any cri minal prosecuti on or what i ts outcome mi ght be. The case has become undu ly compli cated, however

. First, the major i ty fai ls to come to gr i ps wi th the obvious procedural due process challe nge by mi stakenly spli tting plainti ff’s procedural cla i m into s e p a ra te “ p ro c e d u ral” and “sub stanti ve” due process clai ms and then analyzing each separately

. Then, after confus ing standing wi th the merits, the major i ty hold s that plainti ff lacks standing to assert the “sub stanti ve” cl a im. The major i ty also seems to acc ept the village’s effort to justif y the fee as a “user fee” to pay for the “service” of being arr ested. That turns the concept of a user fee ups i de down. The obvious consti tutional flaw here i s easy to corr ect: make the fee payable upon convic tion of a cri me, as part of the court costs authorized by l a w after the full procedural prot ecti ons of the cri minal justic e system. That i s not a “sub stanti ve” due process the o r y , as my colleagues seem to think, but a si mple corr ecti on to a faci ally unc onsti tutional law. We should rev e rse the di stric t court’s di smi ssal and remandNo. 12-2619 19
the case for further proceedings. I there fore respectfully di ssen t. I. The Procedural Due ProcessViolation Before addressing the nuanc es of the doctrine and case law, I’ll draw the broad outlin es of the problem. We start wi th one of the most fund amental rights prot ected by the Constituti on: the right to proper ty. The g o ver nment—federal, state, or local—may not depr iv e a person of proper ty wi thout due process of law. U.S. Const. Amdt. V and XIV. And thi s case i s
no t about the more abstract forms of proper ty under d ue proce ss jurisprudenc e, such as gov ernment benefi ts, li cens es,
or expectat i ons in keepin g a j ob. Thi s i s about cas h. Under the village’s book ing fee or dinance, the deprivati on of that proper ty becomes inevitable the moment a village poli ce offi cer deci des to make an arr est. The book ing fee will be

asses sed. It wi ll be asses sed reg ardless of whether the arr estee i s ever pr osecuted, regar dless of the outcome of any pro secu tion, and even reg ardless of the validi t y o f the arr est. The book ing fee or dinance thus infli cts a final deprivati on of proper ty based on the deci si on of a single poli ce offi cer. The

or dinance allows no further ro om for di spute or rev i ew of any kin d. The effect i s that the book ing fe e or dinance i mposes a cri minal fine pr e mat urely, before charges are even fi led, let alone adjudic ated. That fund amental due process violati on, whi ch i s inherent in the village’s or dinance giving one poli ce offi cer the power to infli ct the proper ty deprivati on, cannot be e xplain e d away by using the Mathews v. Eldridge balanc ing test. See 424 U.S. 319 (1976). The major i ty appli es the Mathews v. Eldridge test wi th20 No. 12-2619
ci rcular logic: becau se the fee i s i mposed on all arr estees, there i s no need for procedure becau se there i s essenti ally no ris k of

err or
. Maj or i ty at 7–11. That analysi s err s becau se the major i ty fai ls to appreci ate that the b ook ing fee i s in essenc e a cri minal fine. C o r r e ctly understood, the Mathews v. Eldridge framework requires that any book ing fee awai t the outcome of a cri minal prosecuti on. First, a person’s private intere st in hi s cash , hi s proper ty, i s prot ected by the Constituti on whether the amount i s large or small

. Second, the ris k of err oneous deprivati on i s in fact ver y sub stanti al

. The pi vo tal deci si on that i mposes the deprivati on i s a lone polic e offi cer’s deci si on to arr est. A lone poli ce offi cer’s deci si on i s subject to judi ci al rev i ew even when she wri tes a mere speeding tic ket, let alone i mposes a cri minal fine. Many people who are arr ested are not even charged wi th cri mes, and many charges result in ei ther dism i ssalor acqui ttal, so that as many as 30 percent and perhaps nearly 50 percent of arr estees ma y pay the fee wi thout any cri minal convic tion. 1

Si nce the di stric t cour t di smissed the case at the pl eadi ng stag e, we do not 1 hav e a factual reco rd with rel i ab l e data fro m Woo dri dge. The approximate range of 30 % to nearly 50 % i s suppor ted b y av ail ab l e data fro m other juri sdi cti ons
. For exa mple , i n 20 12 i n Cali fo rnia, there were more than 29 5,0 00 fel ony arrests, yet nearly 20 perce nt were not even pro secuted, and another 12 perce nt prevail ed i n cour t. Cal. Dep’t of Justi ce, Cri me i n Cali fo r ni a 2 0 12 at 50 (Tab l e 38 A, Dispo siti ons of Adul t Fel ony Arr ests 2 0 0 7

– 2 0 1 2 ) , a v a i l a b l e a t h t t p : / / o a g
. c a
. g o v / s i t e s / a l l / f i l e s / pdfs/ cjsc/ publi cati o ns /candd/c d12 /cd 12 .pdf ? (l ast v i site d Jan. 3, 20 14 ). In DuPa ge Co unty, Il l i noi s, where Woo dri dge i s l ocated, the readi l y av ail ab l e statistic s d o not pro v i de preci se guid ance. Yet i n 20 09 there were 46 21 (co ntinued. ..)No. 12-2619 21
Thi rd, t he g o v ernmental intere st in collecting such a fee gener ally may be si gni fi cant, but if we a sk whether the gov ernment has a legiti mate intere st in chargin g a fe e t o the many arr estees who will notbe convicted of a crime, that intere st j ust evapo rat es. Fin ally, there i s no marginal cost for the gov ernment i f it mu st wai t for the outcome of the cri minal charges. For anyone who mi ght legiti mately be required to pay the fee, those procedures wi ll be used whether an arr est fee i s i mposed or not

. II. The Defense Arguments Perhaps the most di ffi cult ques t io n about thi s case i s whether the defense of thi s book ing fee law i s more si mi lar to

( ...c onti nued) 1
arrests fo r v i ol ent and pro perty cri mes, b ut onl y 30 26 fel ony cases of any type we r e fi l ed. See Il l i noi s Cri minal Justi ce Infor mati on Author i ty, D e t a i l e d D a t a T a b l e s : D u P a g e C o u n t y , a v a i l a b l e a t
www .i c jia .o rg /p u b l i c /s a c /ins t a nt atla s/M a inH T ML/r ep or t _C ountie s_2 2. htm l (l ast v i site d J an. 3,2 01 4) . These fi gures suggest a si gnifi cant drop -o ff fro m arrest to pro secuti on. The dro p-o ff fro m b ei ng pro secuted to b ei ng convicted i s also l arge. In 20 06 i n the nati on’s 75 most po pul ous c ounti es, nearly a qua rter of perso ns charged with fel oni es (2 4%) were not convicted

. U.S

. Department of Justi ce, Bureau of Justi ce Statisti cs Bul l eti n, F e l o ny Defendants i n Large Urban Co unties, 20 06 , page 11 (M ay 20 10 ). T he convicti on rate fo r mi sdemeanor arrests (and Markadonatos was charged with a Cl assA misde mean or ) may well be sub stantial l y l ower . New Yo rk St ate data fo r 20 12 show, fo r exa mple , tha t ab out 56 % of misde mean or arrests resul t i n convicti ons , as compared to ab out 69 % of fel ony arrests. New York State Divisi on of Cri minal Justi ce Ser v i ces, Adul t Arr ests D i s p o s e d , a v a i l a b l e a t w w w
. c r i m i n a l j u s t i c e
. n y
. g o v / c r i m n e t / o j s a / di spos/nys.pdf (l ast v i site d Jan. 3, 20 14 ). The Cali fo r nia data ci ted ab ove i ndic ate tha t approximatel y one- third of tho se ar r e sted on suspici on of a fel ony are no t co nv i cted ofany crime.22 No. 12-2619
the fi cti on of Lewi s Carr oll or of Georg e Or well

. F i rst, let’s consi der Lewi s Carr oll, who gav e us the Q ueen of Hearts’ phi loso p hy of “sentence fi rst, ver di ct afterwards.” That describes the booking fee once we recog ni ze i t i s in fac t a fine for (su spected) cri minal conduc t. Wi th that understanding, the due process problem sh ould be self-evid ent. A. The “Substantive Du e Process” Detour The major i ty seeks to avo i d thi s conclu si on by framing the problem of i mposing the fee on all arr estee s a s o ne of “sub

stanti ve due process” and finding that plainti ff Mar kadonat os has no standing to rais e such a clai m. The major i ty thus fai ls to
see that the deprivati on o cc ur s at the moment the fee i s i mposed upon book ing, reg ardless of the later outcome of any later cri minal prosecuti on. The gov ernme nt is not entitled to sei ze proper ty sum mari ly and then to justif y the sei zure by the

res ult of a later tr i al. But see Concurrence at 16. That i s a procedural due p r o ce ss violati on as basi c as “sentence fi rst,
ver di ct afterwards.” The major i ty’ s detour into sub stanti ve due process i s mi staken as to both the nature of a su bs tantive due process clai m and the relat i onshi p between standing and the merits of

a clai m. (Unfortunately , plainti ff’s couns el abe t t ed these mi stakes by even menti oning sub stanti ve due process.) As the Sup r e me Court has explain ed, i ts line of sub stanti ve due p ro c e s s cases interpr ets the Fifth and Fo u rte e nth Am e n d m e nts ’ Due Process Clauses “to inclu de a sub stanti ve co mponent, whi ch forbid s the gov ernm e nt to in frin ge c e rt a in ‘f un d a m e ntal’ liberty intere st s at all , no matter what process i s prov i ded, unles s the infringement i s narro wly tailored to serve a compel-No. 12-2619 23
ling state intere st.” Reno v. Flores , 507 U.S. 292, 301–02 (1993). When sub stanti ve due process i s unde rsto od proper ly, i t obviousl y does not prev ent the go ver nment from i mposing a fine or fee as partof the puni shm ent for a cri me. The problem here i s thus not the sub sta nt iv e result of i mposing a cr i minal fine. When i mposed thro ugh the procedures of the cri minal justic e syst e m, t ha t result poses no due process i ssu e. The problem here i s the procedures used, or not used. Judge Sy kes’ concu rr ing opini on states corr ectly that my objection i s to “the content” of the b ook ing fee ordinance, but the objection i s to the “content” that deprives all arr estees of t hei r proper ty wi thout any procedural prot ecti on after th e deci si on to arr est. That objection to “content” cannot be

avo i ded by calling i t a subs tantive due process argument. It ’s the lack of pro cedures that i s the i ssu e. The major i ty’ s tr eatment of thi s supp osed sub stanti ve due process theor y is further confus ed by i ts odd blurrin g of the boundary between standing and the mer i ts. See Maj or i ty at 5 (in co nsi dering standing: “we sti ll questi on whether Woodridge’s collecti o n o f t he book ing fee was an invasi on of Mr

. Mar kadonat os’ legal rights, particu larly wi th reg ard to hi s sub stanti ve due process clai m”). As mi staken as the major i ty’ s tr eatment of thi s theor y i s, though, i t does have the redeemin g virtu e of leaving the door open for a consti tutional challen ge by perso ns in a better posi tion than Mr

. Mar kadonat os to do

so. B. The “User F ee” Rationale The village offers an alter nate vi ew of the book ing fee as a sort of “user fee” for the privi lege of being arr e st e d a nd24 No. 12-2619
book ed. Thi s i s the Or welli an ver si on, where language i s used to mean the o p p o sit e of reality. (“War i s peace. Fr eedom i s slavery

. Igno rance i s strengt h.”) I am no t aware of, and the village and the major i ty have not ci ted, any “user fee” i mposed where the “user” has n ot acte d voluntarily to use go ver nment services or faci li ties (a toll ro ad, a state park, a hunting li cens e, etc.). See gener ally National Cable Televisio n Ass’n v. United States , 415 U.S. 336, 340 (1974) (“A fee, however , i s inci dent to

a vo lun t ary act

... .”); Massa chuse tts v. United States , 435 U.S. 444, 461–63 (1978) (holding that federal gov ernment could charge state a fee for use of state-owned ai rcraft in return for benefi ts of federal aviati on prog rams); Empress Casino Joliet Corp. v. Balmoral Racing Clu b, Inc. , 651 F.3d 722, 728–29 (7th Ci r. 2011) (en banc ) (di stingui shing between user fees and taxe s for purposes of Tax Injuncti on Act). Du r ing or al arg ument, t he village t ried to justif y thi s user fee theor y by explaining that a p e r so n arr ested by mi stake would sti ll p r o perly owe the fee becau se he would have benefitted from t he “ services ” of being photo gr aphed and fingerpr inted. That arg ument su rely quali fi es as Orwelli an. 2

III. More o n the Merit s A m or e detailed analysi s of the relev ant d octr ine and case law mus t begin wi th a basi c prin ci ple of due process. A person may not be puni shed for a cri me unti l a neut r a l fa ct -finder

“ T he M i ni str y of Peace conce rns i tsel f with war, the Mi nistry of Truth 2 with l i es, the Mi nistry of Lo v e with tor ture and the Mi nistry of Ple nty with starv atio n. These contradi cti ons are not accid ental, nor do they resul t fro m
or di nary hy poc ri sy: they are de l i b erate ex erci ses i n do ub l ethink.” Geo rge Orwel l , 19 84

.No. 12-2619 25
deter mines that the elements of the cri me ha v e been prov en beyond a reasonable doubt. In re Winship , 397 U.S. 358, 361 (1970); Sul livan v. Louisi ana, 508 U.S. 275, 278 (1993). That proo f happens thro ugh the processes of our cri minal j usti ce system in the courts. It does not happen when a poli ce offi cer makes

an arr est. Even a sus pect’s confess i on to an offi cer on the spot i s only evidenc e. It does not entitle the offi cer to i mpose judgment and puni shm ent. Yet puni shm ent is exactly what happens when the vi llage collect s it s bo oking fee. Thi s i s evident in the di stric t court’s reasonin g. The dis tr i ct court wrot e: “i t i s r ational to share the costs of incarceration wi th those who through th eir actions
necess i tate that tho s e c os ts b e incu rr ed.” Markadonatos v. Village of Woo dridge, 2012 WL 2128386, at *5 (N.D. I l l

. Ju ne 11, 2012) (em p ha sis added). The major i ty endorses thi s lo gic as par t of i ts sub stanti ve due process analysi s, finding i t rat i onal that the village “take s money to cover the admini strat i ve costs of book ing from the indi vidu als whose acti ons caused the cost to begin with .” M aj o r it y at 13 (emphas i s added). By blaming the

arr estee for the cost, the di stric t court and the major i ty beg the questi on to be deci ded in the cri minal justic e process i tself: i s the arr estee guilty of a cri me? Mr

. Mar kadonat os i s not a particu larly sympathetic plainti ff, of course. He does not clai m that hi s arr est resulted from any mi stake or was made wi thout probable caus e. He
was arr ested for shopli fting and admi tte d hi s gui lt, though he wound up in a di ver si on prog ram in wh ich the ulti mate adjudi cati on was a finding of “not gui lty

. ” Th e major i ty defends i ts deci si on by asserting that hi s arr est was made wi th probable caus e. I assu me that’s tr ue, but i t’s not relev ant to the26 No. 12-2619
validi ty of t he book ing fee or dinance, and the major i ty does not explain why it i s. The plainti ff’s indi vidu al ci rcums tances do not matter for hi s consti tutional challen ge to the or dinance becau se hi s individu al ci rcum s tanc es do not matter at all under the or d ina nce. The book ing fee i s collected at the moment of book ing and i s based on the say-so o f just one poli ce offi cer. The arrestee i s depri ved o f hi s proper ty atthat moment, with

no p r ov i si on in the law for further process or even pos t

deprivati on remedy. In other words, every arr estee’s right not to be deprived of proper ty wi thout due process of l a w i s violated at t he moment of book ing, regardless of whether the

arr est was wi th or wi thout probable ca us e, reg ardless of whether the ar restee i s actually prosecuted, an d reg ardless of t he outcome of any prosecuti on. To justif y the fee based on a later plea or convic tion i s to endorse the Q ue en of Hearts’ justic e, albei t on a modest scale. At the ris k of belaborin g the obvious, probable caus e for an
arr est i s of course a complete defense to a federal consti tutional clai m for wrongful sei zure of the person and a state law clai m for false arr est. E.g. , Mustafa v. City of Chicago , 442 F.3d 544, 547 (7th Ci r. 2006). To my knowledge, though, Americ an courts have never before even suggested that mere probable caus e i s
a suffi ci ent basi s for i mposing a crimi nal fine —even a modest one—wit ho ut the further procedural prot ecti ons of our
cr i minal justic e system. Yet that i s the effect of the major i ty’ s deci si on. Consi der, for example, the problem posed by a person
a rr ested as a result of mi staken i denti ty. Suppose a pol ice offi cer conduc ts a ro ut ine t r affi c stop, chec ks the driver’s i denti fi c a ti on

, an d learns there i s an outstanding arr est warrantNo. 12-2619 27
for a perso n o f t he same name and a si mi lar descri ption. The offi cer may have probable caus e to arr est the driver on the basi s of the warrant, but surely all would agr ee that the driver i s enti tled to be released pro mptly once the mi staken id entity i s shown. If the offi cer makes the arr est in Woodr i dge, though, the driver mus t pay t he bo o k ing fee and i s, according to the village and the major i ty, not entitled to ret ur n o f the money. Why on eart h i s that justifi able? The village’s only response i s i ts Or welli an clai m that the arr ested driver would have “benefi tte d” from the “service s” of being photo gr aphed and fingerpr inted. Please. An d the m a jo rity e n dorses that result but prov i des no better explanation. The village and the major i ty also defend the book ing fee by suggesting that some sort of post-deprivatio n r emedy i s availab le and thus cures any due process problem. See Maj or i ty at 11, ci tin g Hudson v. Palmer, 468 U.S. 517, 533 (1984). That arg ument fai ls on both legal and factual gr ounds. The legal problems begin with the fac t thatthe deprivation of proper ty here i s not random o r unauthorized, as i t was in both Hudson and the case i t followed, Parrat t v. Taylor , 45 1 U.S. 527 (1981), where a post-deprivati on remedy was the only practic al remedy for unauthorized wrongs. Hudson had to di stingui sh Logan v. Zimm erman Brush Co. , 455 U.S. 422 (1982), whi ch held that a post-deprivati on remedy di d not sat i sfy due process wh e r e the proper ty deprivati on was effected pursuant to an establi shed gov ernm e nt procedure. Hudson , 468 U.S. at 534. That’s why the Hudson holding was framed thi s way: “We hold that an unauthorized intentional dep r i vat i on of proper ty by a
s ta te e mployee does not consti tute a violati on of the p ro c e d u ra l requirements of the Due Process Clause of the Four teenth28 No. 12-2619
Amendment i f a meaningful postdeprivation remedy for the loss i s avai lable.” Id. at 533 (emphasi s added)

. The major i ty’ s analysi s si mply ov erlo oks the word “unauthor i zed” in Hudson , and the deprivat i on here was of course the intended and authorized result of the village’s or dinance. Under well establi shed law, the possi bi li ty of a later laws ui t as
a remedy there fore does no t cure the consti tutional problem. See gener ally, e.g ., Schepe rs v. Commissi oner, 691 F.3d 9 0 9 , 916 (7th Ci r. 2012) (making thi s poin t based on Parrat t and Logan ). 3 The second legal problem i s that the ter ms of the or dinance leave no ro om for a remedy. O nce an offi cer deci des t o arr est
a person, there i s nothin g more to deci de. The major i ty poin ts out cor rectly that the chanc es of an err or in collecting the fee are, under the ter ms of the or dinance, min us cule. But that i s only evidenc e of the consti tutional p r o blem—puni shm ent before ver di ct—not a consti tutional defense. See Johnson v. City of Evansto n , 250 F.3d 560, 562 (7th Ci r. 2001) (ci ty’ s contenti on that pla int iff had no remedy for deprivati on of use of hi s car “just [made] J ohnson’s cons tituti onal poin t”).

Because the depr i v atio n here i s not a random or una uthori zed v i ol atio n, 3 the v i l l age coul d not cure the c o nsti tutio nal def ects b y merel y creati ng a pro cedur e fo r some arrestees—such as t ho se not convicted —to ask fo r a refund of the pro perty taken fro m them. As the case l aw i nterpreti ng Parratt and Logan shows, i f the government takes a perso n’s pro perty witho ut due pro cess, del i b eratel y and p ursuan t to cl ear pol i cy, the existence of a p ostdepr i v atio n remedy i s not a consti tutio nal v accine. That’s evident fro m Hudson ’s di scussio n of Logan and fro m Doh erty v. City of Chicag o , 75 F.3d 31 8, 32 3 (7 th Ci r. 19 96 ), also ci ted b y the majori ty, which reco gnized exa ctl y the sam e di stincti on b etween auth or i zed and una uthori zed depr i v atio ns of pro perty.No. 12-2619 29
The factual problems wi th the supp osed later remedies are lai d bare when the village and the major i ty poin t out that some
arr estees mi ght hav e a ci vil clai m for false arr est. That i s true, but as noted above, a ci vil cl a im for false arr est i s availab le

o nl y to people arr ested wi thout probable caus e, not to many other s never convic ted of a cr ime. Second, even i f the arr est
was wi thout probable caus e and th e damages for false arr est mi ght inclu de the book ing fee, the amount of prop e rt y take n i s too modest for t he remedy to be meaningful wi thout the help of a clas s a ct io n. As we have sai d in relat ed context s, “only a lunati c or a fanati c sues for $30.” Carnegie v. Household Int’l, Inc. , 376 F.3d 656, 661 (7t h Ci r. 2004). For a modest civil clai m in the DuP age County courts, the fi ling fee alone i s $150. 4
So thi s book ing fee or dinance i mposes ei ther puni shm ent bef o re ver di ct, li ke the Queen of Hearts’ justic e in Alice in Wonderland, or an Or welli an “user fee ” on the unw i lling
arr estee who may well have done nothin g wrong. Ei ther way, it ’s an unc onsti tutional deprivati on of proper ty wi thout due process of law.

In two other od d passa ges, t he majo ri ty suggests tha t an arrestee or at 4 l east an “o rdi nary ci tizen” who b el i eves he s houl d not hav e been arrested coul d compl ain to ei ther the arresting of fi cer or a judge i n his cri minal case, which shoul d guard aga i nst an erro neous depr i v atio n. Majo ri ty at 9 and 11

. Yet as the majori ty acknowled ges, the or di nan ce i tsel f pro v i de s no suc h opp or tunity. It requir es the fee to b e i mposed on all arrestees, witho ut ro om fo r di scret i o n. That’s why the majori ty fi nds so l i ttle ri sk of erro r i n i ts Mathews v . Eld ridge b alancing, so i t’s di ffi cul t to see ho w the po ssibil i ty of

an i mprovised and inf or mal appeal fo r (unauthori zed) mercy woul d help sol v e the co nstituti onal pro b l em here.30 No. 12-2619
IV. The Case Law The major i ty defends it s d eci si on by ci tin g several cases allowing jails and pris ons to ch a r ge inmates for the cost of

ro om and board. See Maj or i ty at 11. In the fi rst of th e ci ted

cases, Tillman v. Lebanon County Corre c ti onal Facili ty, 221 F.3d 410 (3d C ir. 2000), the Thi rd Ci rcui t found no due process violati on when a jail asses sed a d a ily housing fee again st an inmate in cus tody for state parole violati ons. Tillman does not supp or t the major i ty’ s deci si on here becau se the plainti ff there had been convic ted of a cri me; he had already had ample procedural prot ecti ons. See 221 F.3d at 414 (money confi scated when plainti ff was ret urned to pris o n)

. Th e major i ty finds a li ttle more supp or t from Slade v. Hampton Roads Regional Jail, 407 F.3d 243, 253–54 (4th Ci r. 2005), whi ch upheld a fee of one dollar per day for pret rial detain ees. Whi le I di sagree wi th

much of the reasonin g in Slade, whi ch di d not recog niz e t he

“ s e nte nce fi rst, ver di ct afterwards” problem, the Fo u rth C i rcu i t at leas t took care to poin t out that a detainee who was acqui tted of charge s wasentitled to a refund, id

. at 247, 254 n.9, and the court a l so assu med a gr i evance procedure offered a remedy. Neither istr ue under the village’s ordin ance here. The major i ty finds i ts stro ngest s upport in Sic kles v. Campbell County, 501 F.3d 726 (6th C ir

. 2007), whi ch rej ected a due process challen ge to a county jail’s poli cy of wi thholding cash from inmates to cover some co st s of incarceration. The Sixth Ci rcui t recog ni zed that i t would be a consti tutional problem to deprive an inma t e of hi s pr oper ty i f he were not convic ted of

a cri me, but the c ourt avo i ded those problems by finding that the two inmate plainti ffs could not rais e those clai ms. One had been convic ted and or dered t o “ p a y the costs of proceedingNo. 12-2619 31 herein,” and the other ’s clai m would not be ripe unles s a nd unt i l he were acqui tte d and the county refused a clai m for refund. See 501 F.3d at 732–33. Whi le I di sagree wi th the Sixth Ci rcui t’s reasonin g in Sic kles becau se i t also fai led to recog ni ze the “sentence first, ver di ct afterwards” pro blem, the major i ty here seems to reach beyond even Sic kles by finding that anyone
arr ested wi th mere probable caus e can be char g e d a nonrefundable b ook ing fee. Whi le we are consi dering appli cable c ase law, I c ommend the sound reasonin g in Roehl v. City of Naperville, 857 F. S upp. 2d 707 (N.D. Ill. 2012), and Allen v. Leis , 213 F. Supp. 2d 819 (S.D. Ohi o 2002 )

. In Ro e h l, Magistrate Judge Schenki er corr ectly deni ed a motion to di smi ss a due process challen g e t o a ver y si mi lar fi fty dollar book ing fee that appli ed to all arr estees and prov i ded no post-deprivati on remedy. Hi s careful opini on addressed and rej ected all the arguments made by the vi llage in thi s case. In Allen , Judge Spiegel corr ectly gr anted sum mary judgment, holding that a ver y si mi lar thi rt y dollar book ing fee

v io l a t ed due process even where there was a process fo r seeking a later refund, after acqui ttal or di smi ssal of cri minal charges.
In a var i ation on the user fee theor y, the village (bu t not the

maj o r it y) also tr i es to justif y i ts book ing fee as merely a n “ad mini strat i ve fee” that should be permi tte d under the reasonin g of Schi lb v. Kuebel , 404 U.S. 357 (1971), and Payto n v. County of Carroll , 473 F.3d 845 (7th Ci r. 2007), even for arr estees who are never conv i cted of a cri me. A c loser look at the m or e preci se r e a so ning of those deci si ons shows, though, that the book ing fe e he r e deni es due process of law. In Schi lb , the Supreme Court upheld an Illinoi s law that allowed a county to32 No. 12-2619 charge an admini strat i ve fee o f one percent of the tot al bai l amount for p ret rial defendants using the court-admini stered bai l-bond system. That fee appli ed to defendants who were ulti mately acqui tte d. Payto n upheld a si mi lar admini st rat i ve fee i mposed on people postin g bond. There are two key di fferences between those cases and thi s one. First, the use of the refo rmed b ai l bond system in Illinoi s
was vo luntary in both cases
. As the opini on in P ayton made clear, there w e re othe r avenues for obtaining liberty before tr i al wi thout using a bai l bond (posting the full amount of secu rity
or release on personal recog ni zance), see 473 F.3d at 851, and the same was tr ue in Schi lb

. S e e 4 04 U.S. at 367–68. There i s
no t hin g remot ely vo luntary about the village’s book ing fee. Second, as we also explained in Payto n , the admini strat i ve fees for bai l bonds in both Schi lb and Payto n were i mposed in a court system wi th “a numb er o f safeguards against detention of people who cannot afford thi s fee,” and the oppor tuni ty t o ask a court to reduce bai l was an i mport ant procedural prot ecti on. 473 F.3d at 851–52. There are no si mi lar prot ecti ons in thi s case. The village cannot save thi s book ing fee by labeling i t an “admini strat i ve fee.” Mor e cl o sely on poin t i s the Supreme Court ’s deci si on in Giaccio v. Penns ylvania , 382 U.S. 399 (1966), di scu ssed in Schi lb

. In Giaccio , the Court struck down an old P ennsylvani a statute that allowed a jury in a cr iminal case to asses s court costs ag a inst a defendant whom i t acqui tte d. The Court major i ty li mi ted i ts holding to the narro w gr ound that the statute gav e the jury no standards so that the i mposi tion of costs on any acqui tte d defendant would be arbi tr ary
. 382 U.S. at 403. Jus tic es St ewart and For tas both concu rr ed separately on theNo. 12-2619 33

more fund amental gr o und that i t violates the Due Process Clause to i mpose a penalty or costs on an acqui tte d defendant. Id. at 405. That’s ex a ct ly right, and i t’s the problem wi th the village’s bookin g fee here. V. Conclus ion Perhaps a reader mi ght wonder whether thi s case deserves

a di ssen t. It involv es, after all, only thi rty dollars and one small muni ci pali ty in nort hern Illinoi s. Whi le thi rt y dollars may not
seem li ke much to the gov ernin g clas s in our soci ety , inclu ding lawyers and judges, i t i s for too many people a vital amount of cash

. Thi rt y dollars i s ro ughly the aver age allotment under the federal Fo od St a m p p ro gr a m (now known as the Supplemental Nutriti on Assi stance Prog ram ) t o he lp feed an adult for a week. It’ s a l so the federal mini mum wage for more than half

a day of work

. The amount at s take may affec t the tim ing and ext ent of process that i s due, such as whether a pre-deprivation hearin g i s needed. But proper ty i s p r o pert y, and the gov ernment cannot take even one dollar wi thout due process of law. Thi s ordin ance offers none. The i ssu e here also reaches far beyond the Vi llage of Woodr i dge. In thi s ci rcui t alone, di stric t courts have addressed due process challen ges to si mi lar local book ing fees in Roehl v. City o f Naperville, 857 F. Supp. 2d 707 (N.D. Ill. 2012) (denying motion to di smi ss due pro ce ss challen ge); Bailiff v. Village of Downers Grove, 2011 WL 6318953 (N.D. Ill. Dec. 16, 2011) (granting motion to certify plainti ff clas s); Silvas v. Domingu ez, 2006 WL 1128233 (N.D. Ind. Apr. 24, 2006) (granting judgment for defense after tr i al); and Sanchez v. Becher, 2003 WL 1563941 (S .D. Ind. Jan. 31, 2003) (granting motion to certify plainti ff34 No. 12-2619
clas s). The gov ernments in Roehl , Bailiff , and S an chez settled and modi fi ed t he i r practic es, but the major i ty’ s deci si on wi ll, i f i t stands, invite local gov ernments thro ughout the ci rcu i t and perhaps elsewh ere to i mpose such book ing fees. For gov ernments u nd e r fi scal pressure, the temptat i on may be str ong to rais e money wi th such fees on a gr oup unli kely to have poli tic al clout.
I hope, though, that the Vi llage of Woodr i dge and o t he r local gov ernments consi dering such fees see the clear warning si gns from even the major i ty. Both the major i ty and concu rr ing opini ons seem t o leave the door open to sui ts on behalf of at least the many arr estees who are no t co nv icted of a cri me or th o se who are arr ested wi thout probable caus e. See Maj or i ty at 7 & n.2; C oncurrence at 16–17. Neither opini on att empts to justif y im posing arr est fees on su ch people. Proper ly understood, the village’s book ing fee violates the due process rights of all arr estees, but the violati on i s mo st obvious for p e o p l e who are never convic ted or even prosecu t e d

. A s noted above, that i s a si zable propo rt i on of all

arr estees. Depending on the geo gr aphi c jurisdi ct i on and the charge, it may range fro m perhaps 30 percent up t o nearly 50 percent of arr estees. That i s a ver y hi gh err or rat e for purposes of Mathews v. Eldridge and i t’s a lot of unjusti fi ed cri minal fines i mposed wi thout due process of law. Future sui ts on behalf of

such persons, wi th atto rney fee awards under 42 U.S.C. § 1988, could qui ckly become much more expensi ve for local gov ernments than any short -t e r m financi al gain the fees mi ght prov i de.No. 12-2619 35
For all t hese r ea so ns, I would r ever se t he judgment of the di stric t courtand remand the case for further pr oceedings.