Jerry Markadonatos v. Village of Woodridge

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-2619

JERRY G. MARKADONATOS,

Plaintiff-Appellant,

v.

VILLAGE OF WOODRIDGE,

Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 11-CV-7006 — James F. Holderman, Judge.

ARGUED MAY 30, 2013 — DECIDED JANUARY 8, 2014

Before SYKES and HAMILTON, Circuit Judges, and

STADTMUELLER, District Judge.*

STADTMUELLER, District Judge. Under Title 5 of its Village

Code, the Village of Woodridge charges every arrestee in its

custody a $30 booking fee. Indeed, after Woodridge police

arrested the plaintiff-appellant for retail theft on January 8,

*

The Honorable J.P. Stadtmueller of the Eastern District of Wisconsin,

sitting by designation.

2 No. 12-2619

2011, the Village collected its $30 booking fee from him,

without any opportunity to contest that collection either before

or after the fee was taken. Mr. Markadonatos is not

alone—Woodridge has taken the same $30 fee from each of the

large number of people arrested and booked in its vicinity.

Thus, Mr. Markadonatos filed the putative class action suit at

hand, under 42 U.S.C. § 1983, asserting that Woodridge’s

booking fee violates both the procedural and substantive due

process rights of the class members. The district judge dis-

missed Mr. Markadonatos’ initial and amended complaints,

finding that Mr. Markadonatos had not stated a claim for relief.

We agree. Mr. Markadonatos’ procedural due process argu-

ment necessarily fails, and he lacks standing to seek relief

under a substantive due process claim. We therefore affirm the

decision of the district court.

I. Background

Woodridge enacted Municipal Code 5-1-12(A), which

imposes a $30.00 booking fee on any person subject to a

custodial arrest. (Am. Compl. ¶ 12). Woodridge collects this fee

without any hearing, and does not offer arrestees any opportu-

nity to challenge the deprivation or seek reimbursement. (Am.

Compl. ¶¶ 16–17).

Mr. Markadonatos was arrested and charged with retail

theft on January 8, 2011, and taken to jail. (Am. Compl.

¶¶ 18–19). He was booked, and at that time, Woodridge

collected its $30.00 booking fee from him. (Am. Compl. ¶ 20).

Woodridge provided Mr. Markadonatos with a booking fee

receipt, but did not ever provide him with a hearing at which

he could challenge the booking fee. (Am. Compl. ¶ 20).

No. 12-2619 3

Thereafter, a court ordered that Mr. Markadonatos undergo

a period of supervision, pursuant to Illinois law. (Am. Compl.

¶ 21). Mr. Markadonatos successfully completed that period of

supervised release, and therefore received an adjudication of

“not guilty” on his record. (Am. Compl. ¶ 22). Despite that

favorable adjudication, Mr. Markadonatos never had an

opportunity to seek the return of his booking fee, and he has

never received a refund of the money that Woodridge seized

from him. (Am. Compl. ¶¶ 23, 24).

Accordingly, he filed suit on behalf of himself and all of the

arrestees who have been charged the booking fee, pursuant to

42 U.S.C. § 1983, arguing that the lack of a procedure to

challenge the booking fee, as applied to each of arrestee

individually, violates the arrestees’ procedural and substantive

due process rights. (Am. Compl. ¶¶ 1, 27–28, 35–44).

After allowing Mr. Markadonatos to file an amended

complaint, the district court dismissed the case for failure to

state a claim upon which relief could be granted, without

ruling on the plaintiff’s motion to certify a class. (Order,

7/10/12, at 7, 9).

Mr. Markadonatos appealed that decision to this Court,

arguing that the district court erred in dismissing his amended

complaint. We disagree and affirm.

II. Discussion

The parties’ briefs and arguments have focused upon

substantive issues relating to procedural and substantive due

process, but before we reach those substantive arguments, we

must first address the issue of standing. We, of course, lack

4 No. 12-2619

jurisdiction over this matter, as did the district judge, to the

extent that we determine that the plaintiff’s allegations do not

establish a “case or controversy.” See, e.g., Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992).

After we make the standing determination, we may then

turn to the substantive legal issues. In doing so, first, we must

determine whether the district court erred in concluding that

Woodridge’s booking fee does not violate the procedural due

process rights of Mr. Markadonatos. Second, we must decide

whether the district court erred in dismissing Mr.

Markadonatos’ substantive due process challenge to the

Woodridge booking fee.

It is important to distinguish between Mr. Markadonatos’

procedural and substantive due process claims, for the two

concepts are distinct from one another. Procedural due process

rights guarantee that the state not deprive an individual of his

or her property without providing adequate procedural

safeguards against the erroneous deprivation thereof. See, e.g.,

Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976). To determine

whether an individual’s procedural due process rights have

been violated, courts generally perform a three-part balancing

test, first outlined by the Supreme Court in Mathews. The right

to substantive due process, on the other hand, is more nebu-

lous, and typically employed by courts to protect against

arbitrary state action that shocks the conscience. County of

Sacramento v. Lewis, 523 U.S. 833, 846 (1998); Montgomery v.

Stefaniak, 410 F.3d 933, 939 (7th Cir. 2005).

Regardless of the differences between the concepts, Mr.

Markadonatos’ arguments on both procedural and substantive

No. 12-2619 5

due process present primarily legal issues, which we review de

novo. Ray v. City of Chicago, 629 F.3d 660, 662 (7th Cir. 2011).

A. Standing

There are essentially three elements for standing. First, the

plaintiff must have suffered an “injury in fact,” requiring an

invasion of the plaintiff’s legally protected interest that is both

concrete and particularized and actual or imminent. Second,

the injury must have been caused by the conduct he complains

of. And, third, it must be likely, as opposed to merely specula-

tive, that a decision in the plaintiff’s favor will redress his

injury. Lujan v. Defenders of Wildlife, 504 U.S. at 560–61.

Here, our standing concerns stem primarily from the

plaintiff’s asserted injury in fact.1 Mr. Markadonatos complains

that he was deprived of $30 as a result of Woodridge’s collec-

tion of the booking fee. And, indeed, Woodridge’s collection of

$30 is concrete, particularized, and actually did occur.

However, we still question whether Woodridge’s collection

of the booking fee was an invasion of Mr. Markadonatos’ legal

rights, particularly with regard to his substantive due process

claim. On his procedural due process claim, Mr. Markadonatos

has pled that he was deprived of $30 without a legally ade-

quate opportunity to challenge that deprivation. And, to the

extent that he is correct, he has standing to assert that claim,

although this analysis requires us to delve more deeply into

1

To the extent that we find an injury in fact, there can be no question that

such injury is fairly traceable to Woodridge’s action and would be redressed

by a decision in Mr. Markadonatos’ favor.

6 No. 12-2619

the substantive aspects of Mr. Markadonatos’ procedural due

process claim.

His substantive due process claim, on the other hand, gives

us pause. Whereas Mr. Markadonatos’ procedural due process

claim clearly identifies Woodridge’s alleged invasion of legal

rights by its very nature—deprivation of property without

legally adequate process—Mr. Markadonatos’ substantive due

process claim presents a much vaguer alleged invasion. He

attempts to argue that collection of the $30 fee from individuals

like him who have been adjudicated “not guilty” violates

substantive due process. Mr. Markadonatos’ situation, how-

ever, is much narrower than that. In fact, he was arrested for

cause and was adjudicated not guilty only after completing a

term of supervision as a result of admitting the factual basis for

the charges against him. See 730 ILCS 5/5-6-1(c), 5/5-6-3.1(e),

5/5-6-3.1(f). In the narrowest sense, the eventual not guilty

adjudication is largely irrelevant, as Woodridge collected the

booking fee on the basis of the arrest. Thus, the fact of a for-

cause arrest is much more probative of the question of whether

collection of the booking fee from a custodial arrestee who was

arrested for cause violates substantive due process. It is

certainly a relevant aspect of Woodridge’s collection of the

booking fee from Mr. Markadonatos, and cannot be ignored as

part of the factual background behind the imposition of the fee.

As such, insofar as Mr. Markadonatos wishes to challenge

Woodridge’s booking fee on the basis of substantive due

process, he may do so only to the extent that Woodridge’s

ordinance actually applied to him, as a for-cause arrestee who

No. 12-2619 7

was later adjudicated not guilty.2 Therefore, in addressing Mr.

Markadonatos’ substantive due process claim, the Court will

confine its analysis to addressing the substantive due process

implications of imposing the booking fee upon for-cause

arrestees taken into custody.

B. Procedural Due Process

Having found that Mr. Markadonatos has standing to assert

his procedural due process claim to the extent he has alleged

an invasion of his legally-protected interests, we must perform

the Mathews v. Eldridge balancing test to determine whether

Mr. Markadonatos stated a claim for a procedural due process

violation. Under that test, we must balance (1) Mr.

Markadonatos’ private interest in his $30; (2) the risk of

erroneous deprivation under Woodridge’s ordinance and

probable value of any additional safeguards; and (3) the

Government’s interest, “including the function involved and

the fiscal and administrative burdens that the additional or

substitute procedural requirement would entail.” Mathews, 424,

at 334–35. Applying this balancing test, we must conclude that

the district court was correct in holding that Mr. Markadonatos

cannot state a procedural due process violation based upon

Woodridge’s booking fee ordinance. We therefore affirm that

aspect of the district court’s decision.

2

In other words, Mr. Markadonatos lacks standing to make a broader

challenge against application of the fee to all arrestees who are eventually

adjudicated not guilty. In particular, he lacks standing to assert a claim that

application of the fee to those arrested without cause violates substantive

due process.

8 No. 12-2619

1. Mr. Markadonatos’ Private Interest

Without a doubt, Mr. Markadonatos has an interest in

retaining his $30. That amount is small, and Woodridge is

certainly correct to point out that such small cash amounts are

generally given little weight under the Mathews balancing test.

(Appellee’s Br. at 8–9 (citing Van Harken v. Chicago, 103 F.3d

1346, 1353 (7th Cir. 1997); Sickles v. Campbell Cty., 501 F.3d 726,

729–30 (6th Cir. 2007); Slade v. Hampton Roads, 407 F.3d 243,

247, 251–53 (4th Cir. 2005); Broussard v. Parish of Orleans, 318

F.3d 644, 647–48, 657 (5th Cir. 2003)). Nonetheless, we must

conclude that the $30 fee is entitled to at least some weight in

the balancing scheme.

2. Risk of Erroneous Deprivation

The risk of an erroneous deprivation, here, is practically

non-existent. Furthermore, to the extent that any deprivation

does exist, additional safeguards would not in any way reduce

the risk thereof.

On the first of those points—the fact that risk of erroneous

deprivation is practically non-existent—one need only look to

the Woodridge scheme. Under the scheme, every person who

is arrested is charged the booking fee, regardless of whether

they were arrested without probable cause. Thus, a Woodridge

employee determining whether to charge the booking fee is

presented with a binary choice: “yes” the booking fee must be

charged to a person who has been arrested and is being booked

by the Village; or “no” the booking fee must not be charged to

a person who has not been arrested and is not being booked by

the Village. This determination is made all the easier by the fact

that the booking fee is collected only upon an individual’s

No. 12-2619 9

arrest and booking. Thus, the Court cannot envision any

situation in which one who has not been arrested is charged

the booking fee. That is, it is only when one is arrested and

booked that the collection of the fee occurs, thus making the

potential for erroneous deprivation practically non-existent.

There is practically no risk of an erroneous deprivation,3

and, therefore, the need for a hearing—particularly a formal

hearing—is extremely low. Barbian v. Panagis, 694 F.2d 476, 488

(7th Cir. 1982) (citing, among many other cases, Logan v.

Zimmerman Brush Co., 455 U.S. 422 (1982); Codd v. Velger, 429

U.S. 624 (1977)). Here, Mr. Markadonatos was arrested and

later appeared before a judge. Thus, if he believed that he was

not or should not have actually been arrested, he had the

opportunity to alert both the arresting officer and the judge

hearing his case of that fact. While neither of these opportuni-

ties is formally provided for in the statute, they are more than

sufficient to safeguard against an erroneous deprivation that

will practically never occur.

Moreover, even if there were some potential for erroneous

deprivation, we cannot envision any set of additional proce-

dures that would reduce that risk. A hearing, either before or

after the time of booking, to determine whether any individual

3

We must note, here, that Mr. Markadonatos seems to fundamentally

misunderstand this portion of the analysis. He appears to argue that any

collection of fees from a person who is ultimately adjudged “not guilty” is

an erroneous deprivation. But that goes outside of the procedural due

process analysis and into the substantive due process realm, by ignoring the

text of the statute, which imposes the booking fee on any person who is

arrested and booked, and delving into a prescriptive argument on what the

statute should be.

10 No. 12-2619

is subject to the booking fee would be largely meaning-

less—the hearing would establish that the arrestee was

arrested and booked. And that fact, alone, subjects the arrestee

to the fee. Thus, there would be practically no value in requir-

ing any additional procedure.

3. Woodridge’s Governmental Interest

Woodridge has an interest in the specific $30 it took from

Mr. Markadonatos, as that amount should offset at least a

portion of the administrative costs associated with processing

Mr. Markadonatos’ arrest. Beyond that specific interest,

Woodridge also possesses a more general interest in the

function involved in collecting $30 from individual arrestees

like Mr. Markadonatos, insofar as it wishes to offset the myriad

of costs associated with temporarily detaining all of Wood-

ridge’s arrestees.

Finally, we must also note that Woodridge also has an

interest in avoiding an additional hearing before or after taking

the $30 booking fee. Such an additional administrative proce-

dure would likely entail substantial costs, such as the salary

costs of the person designated to preside over the hearing and

arresting officers required to attend and testify.

4. Balancing of the Mathews Factors

Balancing each of the above-described Mathews factors, we

conclude that the district court was correct to hold that Wood-

ridge’s booking fee ordinance does not violate Mr.

Markadonatos’ procedural due process rights.

Simply put, Woodridge’s general interest in covering

booking costs of the arrestees in its custody, and specifically in

No. 12-2619 11

offsetting the costs of holding Mr. Markadonatos temporarily,

outweighs Mr. Markadonatos’ own interest in his money,

especially when balanced with the exceedingly low likelihood

that the fee would be imposed on him or other arrestees

erroneously. There is some minimal amount of protection for

ordinary citizens, insofar as they may argue to an arresting

officer or later to a judge that the fee should not be charged

against them or should be returned. That protection is more

than sufficient to safeguard against the exceedingly low risk

that a person who is not arrested will have the booking fee

taken from him. This is fully consistent with the opinions of

other circuits, which have determined that routine accounting

and deduction of fees from detainees is not constitutionally

problematic, due to the low amount of discretion and minimal

risk of error. See, e.g., Sickles v. Campbell Cty., 501 F.3d 726, 730

(6th Cir. 2007); Slade v. Hampton Roads Reg’l Jail, 407 F.3d 243,

253–54 (4th Cir. 2005); Tillman v. Lebanon Cty. Corr. Facility, 221

F.3d 410, 422 (3d Cir. 2000).

Finally, though this goes to the heart of Mr. Markadonatos’

substantive due process challenge, we must also note that,

even if we were to determine that there was some potential for

erroneous deprivation, due, for instance, to the risk of a false

arrest, there are state remedies available to address such a

wrong, under which arrestees would be entitled to the return

of their booking fee. And, so long as there is such a meaningful

post-deprivation remedy available, there is no violation of

arrestees’ procedural due process rights. See, e.g., Hudson v.

Palmer, 468 U.S. 517, 533 (1984); Doherty v. City of Chicago, 75

F.3d 318, 323 (7th Cir. 1996).

12 No. 12-2619

C. Substantive Due Process

As we mentioned above when discussing standing, Mr.

Markadonatos may challenge Woodridge’s booking fee on

substantive due process grounds only to the extent it actually

applied to him, as a for-cause custodial arrestee who was later

adjudicated not guilty.

This is a steep hill to climb. Courts generally employ

substantive due process to protect plaintiffs “only against

arbitrary government action that ‘shocks the conscience.’”

Montgomery, 410 F.3d at 939 (quoting Tun v. Whitticker, 398 F.3d

899, 902 (7th Cir. 2005)). In fact, “[s]ubstantive due process

depends on the existence of a fundamental liberty interest.”

Idris v. Chicago, 552 F.3d 564, 566 (7th Cir. 2009) (citing Washing-

ton v. Glucksberg, 521 U.S. 702, 719–22 (1997)). In the absence of

a fundamental right, we may only review the law to determine

whether it is arbitrary, such that it would flunk the rational-

basis test that applies to all legislation. Idris, 552 F.3d at 566

(citing National Paint & Coatings Ass’n v. Chicago, 45 F.3d 1124

(7th Cir. 1995); Saukstelis v. Chicago, 932 F.2d 1171 (7th Cir.

1991)).

Mr. Markadonatos’ complaint does not implicate a funda-

mental right. The $30 fee is extremely modest, and of an

amount that does not rise to the level of a fundamental right.

Id. (“The interest at stake is a $90 fine for a traffic infraction,

and the Supreme Court has never held that a property interest

so modest is a fundamental right.”). Accordingly, we do not

believe that any fundamental right is implicated, here, and

therefore we need only ensure that Woodridge’s booking fee

is rational and not arbitrary.

No. 12-2619 13

Woodridge’s booking fee clearly passes the rational basis

test. In imposing the fee, Woodridge hopes to offset the cost of

booking arrestees, or at the very least to collect revenue, either

of which is a legitimate goal. Id. The collection of $30 from each

for-cause arrestee is clearly rationally related to that goal,

seeing as it takes money to cover the administrative costs of

booking from the individuals whose actions caused the cost to

begin with. Certainly, there are some inefficiencies in the

system. But, an imprecise match between process and objective

is permissible, even if greater precision is possible. See, e.g.,

Vance v. Bradley, 440 U.S. 93, 108–09 (1979); Heller v. Doe, 509

U.S. 312, 320–21 (1993); Pro-Eco, Inc. v. Bd. of Comm’rs of Jay

Cty., 57 F.3d 505, 514 (7th Cir. 1995). Therefore, we must

conclude that Woodridge’s booking fee is rational, and is not

in any way arbitrary.4

For these reasons, we must conclude that Woodridge’s

booking fee does not violate Mr. Markadonatos’ right to

substantive due process. The district court was correct to

dismiss that portion of his claim, and we affirm in that regard.

III. Conclusion

For these reasons, we are obliged to conclude that Wood-

ridge’s booking fee does not violate Mr. Markadonatos’ rights

to procedural or substantive due process. The district court

4

To the extent that Mr. Markadonatos may make an argument under the

Equal Protection Clause (and then only to the extent that the argument is

not waived, which is highly debatable), such an argument would nonethe-

less fail under the same rational basis analysis.

14 No. 12-2619

correctly dismissed this case, and accordingly we AFFIRM that

decision.

No. 12-2619 15

SYKES, Circuit Judge, concurring. I join Judge Stadtmueller’s

opinion for the court. I write to highlight a key conceptual

distinction that separates my view of this case from Judge

Hamilton’s. Markadonatos argues that the Village of

Woodridge ordinance imposing a $30 jail booking fee violates

his right to procedural and substantive due process. The crux

of his procedural due-process claim is that the fee is collected

automatically, at the time of custodial arrest and booking,

without any formal process at all. The crux of his substantive

due-process claim is that the fee is collected from everyone

who is arrested and booked into the jail regardless of whether

the arrest was lawful, a criminal charge is filed, or the person

is found guilty.

As Judge Stadtmueller explains, Markadonatos lacks

standing to challenge the Village’s booking fee on substantive

due-process grounds. Markadonatos does not allege that he

was arrested without probable cause; nor does he allege that he

was never charged with a crime, that the charge against him

was dismissed, or that he was acquitted. To the contrary, it is

undisputed that Markadonatos was lawfully arrested and

charged with retail theft, entered a guilty plea, and was

sentenced to a 12-month term of supervision and ordered to

pay various court costs and criminal-justice fees. He alleges

that “[a]t the conclusion of the supervision[,] the charge on his

record will be listed as ‘not guilty’.” His brief cites 730 ILL.

COMP. STAT. 5/5-6-1(c) as the statutory authority for this

conditional disposition, but the court’s sentencing order

doesn’t refer to that statute.

Regardless, the important point for our purposes is that

because Markadonatos concedes that he was arrested on

16 No. 12-2619

probable cause, was charged with retail theft, and pleaded

guilty as charged, he has no standing to claim that the booking

fee is substantively unconstitutional because it applies to all

arrested persons whether or not the arrest was lawful, a charge

is filed, or a successful prosecution ensues. See Sickles v.

Campbell County, Ky., 501 F.3d 726, 732 (6th Cir. 2007) (holding

that plaintiffs who pleaded guilty lack standing to challenge

county’s collection of jail costs as applied to those who are

“arrested, booked and immediately released because of

mistake”). Accordingly, the district court properly dismissed

the substantive due-process claim.

That leaves the procedural due-process claim, which fails

for the reasons Judge Stadtmueller has explained.

In his dissent Judge Hamilton maintains that the booking

fee is in substance a criminal fine and must “await the outcome

of a criminal prosecution.” Dissent at 20. That’s a claim about

the content of the booking-fee ordinance—a substantive

challenge to the Village’s policy decision to apply the fee to

every arrested person rather than just to those who are charged

with and found guilty of a crime. It may be a good claim, but

Markadonatos has no standing to make it because he was

arrested on probable cause, charged with a crime, and pleaded

guilty as charged.

To say that the booking fee is unconstitutional because it is

collected from all arrested persons—even those who are

arrested without probable cause, never charged, win a dis-

missal, or are acquitted—is to say that the fee ordinance is

unconstitutional in substance. It is to say, as Judge Hamilton

does in his dissent, that the booking fee is substantively

No. 12-2619 17

justifiable only as a fine—that is, only as part of the substantive

punishment for a crime. He may be right about that. But we

cannot entertain that substantive claim here because

Markadonatos lacks standing to make it.

18 No. 12-2619

HAMILTON, Circuit Judge, dissenting: This should be a

simple case. The village’s “booking fee” ordinance is unconsti-

tutional on its face. It takes property from all arrestees—the

guilty and the innocent alike—without due process of law. The

deprivation occurs at the time of arrest, immediately and

finally. It occurs based on only the say-so and perhaps even the

whim of one arresting officer. By no stretch of the imagination

can that be due process of law. The fee is in substance a

criminal fine, modest but a fine nonetheless, and it is imposed

regardless of the validity of the arrest and regardless of

whether there is any criminal prosecution or what its outcome

might be.

The case has become unduly complicated, however. First,

the majority fails to come to grips with the obvious procedural

due process challenge by mistakenly splitting plaintiff’s

procedural claim into separate “procedural” and “substantive”

due process claims and then analyzing each separately. Then,

after confusing standing with the merits, the majority holds

that plaintiff lacks standing to assert the “substantive” claim.

The majority also seems to accept the village’s effort to justify

the fee as a “user fee” to pay for the “service” of being arrested.

That turns the concept of a user fee upside down.

The obvious constitutional flaw here is 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. That is not a

“substantive” due process theory, as my colleagues seem to

think, but a simple correction to a facially unconstitutional law.

We should reverse the district court’s dismissal and remand

No. 12-2619 19

the case for further proceedings. I therefore respectfully

dissent.

I. The Procedural Due Process Violation

Before addressing the nuances of the doctrine and case law,

I’ll draw the broad outlines of the problem. We start with one

of the most fundamental rights protected by the Constitution:

the right to property. The government—federal, state, or

local—may not deprive a person of property without due

process of law. U.S. Const. Amdt. V and XIV. And this case is

not about the more abstract forms of property under due

process jurisprudence, such as government benefits, licenses,

or expectations in keeping a job. This is about cash.

Under the village’s booking fee ordinance, the deprivation

of that property becomes inevitable the moment a village

police officer decides to make an arrest. The booking fee will be

assessed. It will be assessed regardless of whether the arrestee

is ever prosecuted, regardless of the outcome of any prosecu-

tion, and even regardless of the validity of the arrest. The

booking fee ordinance thus inflicts a final deprivation of

property based on the decision of a single police officer. The

ordinance allows no further room for dispute or review of any

kind. The effect is that the booking fee ordinance imposes a

criminal fine prematurely, before charges are even filed, let

alone adjudicated.

That fundamental due process violation, which is inherent

in the village’s ordinance giving one police officer the power

to inflict the property deprivation, cannot be explained away

by using the Mathews v. Eldridge balancing test. See 424 U.S. 319

(1976). The majority applies the Mathews v. Eldridge test with

20 No. 12-2619

circular logic: because the fee is imposed on all arrestees, there

is no need for procedure because there is essentially no risk of

error. Majority at 7–11. That analysis errs because the majority

fails to appreciate that the booking fee is in essence a criminal

fine.

Correctly understood, the Mathews v. Eldridge framework

requires that any booking fee await the outcome of a criminal

prosecution. First, a person’s private interest in his cash, his

property, is protected by the Constitution whether the amount

is large or small. Second, the risk of erroneous deprivation is in

fact very substantial. The pivotal decision that imposes the

deprivation is a lone police officer’s decision to arrest. A lone

police officer’s decision is subject to judicial review even when

she writes a mere speeding ticket, let alone imposes a criminal

fine. Many people who are arrested are not even charged with

crimes, and many charges result in either dismissal or acquit-

tal, so that as many as 30 percent and perhaps nearly 50

percent of arrestees may pay the fee without any criminal

conviction.1

1

Since the district court dismissed the case at the pleading stage, we do not

have a factual record with reliable data from Woodridge. The approximate

range of 30% to nearly 50% is supported by available data from other

jurisdictions. For example, in 2012 in California, there were more than

295,000 felony arrests, yet nearly 20 percent were not even prosecuted, and

another 12 percent prevailed in court. Cal. Dep’t of Justice, Crime in

California 2012 at 50 (Table 38A, Dispositions of Adult Felony Arrests

2 0 0 7 – 2 0 1 2 ) , a va i l a bl e a t h t t p : / / o a g . c a . g o v/ si tes/ al l / fi l es/

pdfs/cjsc/publications/candd/cd12/cd12.pdf? (last visited Jan. 3, 2014). In

DuPage County, Illinois, where Woodridge is located, the readily available

statistics do not provide precise guidance. Yet in 2009 there were 4621

(continued...)

No. 12-2619 21

Third, the governmental interest in collecting such a fee

generally may be significant, but if we ask whether the

government has a legitimate interest in charging a fee to the

many arrestees who will not be convicted of a crime, that interest

just evaporates. Finally, there is no marginal cost for the

government if it must wait for the outcome of the criminal

charges. For anyone who might legitimately be required to pay

the fee, those procedures will be used whether an arrest fee is

imposed or not.

II. The Defense Arguments

Perhaps the most difficult question about this case is

whether the defense of this booking fee law is more similar to

1

(...continued)

arrests for violent and property crimes, but only 3026 felony cases of any

type were filed. See Illinois Criminal Justice Information Authority,

D e t a i l e d D a t a T a bl e s : Du P a g e C o u n t y , a v a i l a b l e a t

www.icjia.org/public/sac/instantatlas/MainHTML/report_Counties_22.html

(last visited Jan. 3,2014). These figures suggest a significant drop-off from

arrest to prosecution. The drop-off from being prosecuted to being

convicted is also large. In 2006 in the nation’s 75 most populous counties,

nearly a quarter of persons charged with felonies (24%) were not convicted.

U.S. Department of Justice, Bureau of Justice Statistics Bulletin, Felony

Defendants in Large Urban Counties, 2006, page 11 (May 2010). The

conviction rate for misdemeanor arrests (and Markadonatos was charged

with a Class A misdemeanor) may well be substantially lower. New York

State data for 2012 show, for example, that about 56% of misdemeanor

arrests result in convictions, as compared to about 69% of felony arrests.

New York State Division of Criminal Justice Services, Adult Arrests

Disposed, available at www.criminaljustice.ny.gov/crimnet/ojsa/

dispos/nys.pdf (last visited Jan. 3, 2014). The California data cited above

indicate that approximately one-third of those arrested on suspicion of a

felony are not convicted of any crime.

22 No. 12-2619

the fiction of Lewis Carroll or of George Orwell. First, let’s

consider Lewis Carroll, who gave us the Queen of Hearts’

philosophy of “sentence first, verdict afterwards.” That

describes the booking fee once we recognize it is in fact a fine

for (suspected) criminal conduct. With that understanding, the

due process problem should be self-evident.

A. The “Substantive Due Process” Detour

The majority seeks to avoid this conclusion by framing the

problem of imposing the fee on all arrestees as one of “sub-

stantive due process” and finding that plaintiff Markadonatos

has no standing to raise such a claim. The majority thus fails to

see that the deprivation occurs at the moment the fee is

imposed upon booking, regardless of the later outcome of any

later criminal prosecution. The government is not entitled to

seize property summarily and then to justify the seizure by the

result of a later trial. But see Concurrence at 16. That is a

procedural due process violation as basic as “sentence first,

verdict afterwards.”

The majority’s detour into substantive due process is

mistaken as to both the nature of a substantive due process

claim and the relationship between standing and the merits of

a claim. (Unfortunately, plaintiff’s counsel abetted these

mistakes by even mentioning substantive due process.) As the

Supreme Court has explained, its line of substantive due

process cases interprets the Fifth and Fourteenth Amendments’

Due Process Clauses “to include a substantive component,

which forbids the government to infringe certain ‘fundamental’

liberty interests at all, no matter what process is provided,

unless the infringement is narrowly tailored to serve a compel-

No. 12-2619 23

ling state interest.” Reno v. Flores, 507 U.S. 292, 301–02 (1993).

When substantive due process is understood properly, it

obviously does not prevent the government from imposing a

fine or fee as part of the punishment for a crime.

The problem here is thus not the substantive result of

imposing a criminal fine. When imposed through the proce-

dures of the criminal justice system, that result poses no due

process issue. The problem here is the procedures used, or not

used. Judge Sykes’ concurring opinion states correctly that my

objection is to “the content” of the booking fee ordinance, but

the objection is to the “content” that deprives all arrestees of

their property without any procedural protection after the

decision to arrest. That objection to “content” cannot be

avoided by calling it a substantive due process argument. It’s

the lack of procedures that is the issue.

The majority’s treatment of this supposed substantive due

process theory is further confused by its odd blurring of the

boundary between standing and the merits. See Majority at 5

(in considering standing: “we still question whether Wood-

ridge’s collection of the booking fee was an invasion of Mr.

Markadonatos’ legal rights, particularly with regard to his

substantive due process claim”). As mistaken as the majority’s

treatment of this theory is, though, it does have the redeeming

virtue of leaving the door open for a constitutional challenge

by persons in a better position than Mr. Markadonatos to do

so.

B. The “User Fee” Rationale

The village offers an alternate view of the booking fee as a

sort of “user fee” for the privilege of being arrested and

24 No. 12-2619

booked. This is the Orwellian version, where language is used

to mean the opposite of reality. (“War is peace. Freedom is

slavery. Ignorance is strength.”) I am not aware of, and the

village and the majority have not cited, any “user fee” imposed

where the “user” has not acted voluntarily to use government

services or facilities (a toll road, a state park, a hunting license,

etc.). See generally National Cable Television Ass’n v. United

States, 415 U.S. 336, 340 (1974) (“A fee, however, is incident to

a voluntary act … .”); Massachusetts v. United States, 435 U.S.

444, 461–63 (1978) (holding that federal government could

charge state a fee for use of state-owned aircraft in return for

benefits of federal aviation programs); Empress Casino Joliet

Corp. v. Balmoral Racing Club, Inc., 651 F.3d 722, 728–29 (7th Cir.

2011) (en banc) (distinguishing between user fees and taxes for

purposes of Tax Injunction Act).

During oral argument, the village tried to justify this user

fee theory by explaining that a person arrested by mistake

would still properly owe the fee because he would have

benefitted from the “services” of being photographed and

fingerprinted. That argument surely qualifies as Orwellian.2

III. More on the Merits

A more detailed analysis of the relevant doctrine and case

law must begin with a basic principle of due process. A person

may not be punished for a crime until a neutral fact-finder

2

“The Ministry of Peace concerns itself with war, the Ministry of Truth

with lies, the Ministry of Love with torture and the Ministry of Plenty with

starvation. These contradictions are not accidental, nor do they result from

ordinary hypocrisy: they are deliberate exercises in doublethink.” George

Orwell, 1984.

No. 12-2619 25

determines that the elements of the crime have been proven

beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361

(1970); Sullivan v. Louisiana, 508 U.S. 275, 278 (1993). That proof

happens through the processes of our criminal justice system

in the courts. It does not happen when a police officer makes

an arrest. Even a suspect’s confession to an officer on the spot

is only evidence. It does not entitle the officer to impose

judgment and punishment.

Yet punishment is exactly what happens when the village

collects its booking fee. This is evident in the district court’s

reasoning. The district court wrote: “it is rational to share the

costs of incarceration with those who through their actions

necessitate that those costs be incurred.” Markadonatos v. Village

of Woodridge, 2012 WL 2128386, at *5 (N.D. Ill. June 11, 2012)

(emphasis added). The majority endorses this logic as part of

its substantive due process analysis, finding it rational that the

village “takes money to cover the administrative costs of

booking from the individuals whose actions caused the cost to

begin with.” Majority at 13 (emphasis added). By blaming the

arrestee for the cost, the district court and the majority beg the

question to be decided in the criminal justice process itself: is

the arrestee guilty of a crime?

Mr. Markadonatos is not a particularly sympathetic

plaintiff, of course. He does not claim that his arrest resulted

from any mistake or was made without probable cause. He

was arrested for shoplifting and admitted his guilt, though he

wound up in a diversion program in which the ultimate

adjudication was a finding of “not guilty.” The majority

defends its decision by asserting that his arrest was made with

probable cause. I assume that’s true, but it’s not relevant to the

26 No. 12-2619

validity of the booking fee ordinance, and the majority does

not explain why it is. The plaintiff’s individual circumstances

do not matter for his constitutional challenge to the ordinance

because his individual circumstances do not matter at all under

the ordinance. The booking fee is collected at the moment of

booking and is based on the say-so of just one police officer.

The arrestee is deprived of his property at that moment, with

no provision in the law for further process or even post-

deprivation remedy. In other words, every arrestee’s right not

to be deprived of property without due process of law is

violated at the moment of booking, regardless of whether the

arrest was with or without probable cause, regardless of

whether the arrestee is actually prosecuted, and regardless of

the outcome of any prosecution. To justify the fee based on a

later plea or conviction is to endorse the Queen of Hearts’

justice, albeit on a modest scale.

At the risk of belaboring the obvious, probable cause for an

arrest is of course a complete defense to a federal constitutional

claim for wrongful seizure of the person and a state law claim

for false arrest. E.g., Mustafa v. City of Chicago, 442 F.3d 544, 547

(7th Cir. 2006). To my knowledge, though, American courts

have never before even suggested that mere probable cause is

a sufficient basis for imposing a criminal fine—even a modest

one—without the further procedural protections of our

criminal justice system. Yet that is the effect of the majority’s

decision.

Consider, for example, the problem posed by a person

arrested as a result of mistaken identity. Suppose a police

officer conducts a routine traffic stop, checks the driver’s

identification, and learns there is an outstanding arrest warrant

No. 12-2619 27

for a person of the same name and a similar description. The

officer may have probable cause to arrest the driver on the

basis of the warrant, but surely all would agree that the driver

is entitled to be released promptly once the mistaken identity

is shown. If the officer makes the arrest in Woodridge, though,

the driver must pay the booking fee and is, according to the

village and the majority, not entitled to return of the money.

Why on earth is that justifiable? The village’s only response is

its Orwellian claim that the arrested driver would have

“benefitted” from the “services” of being photographed and

fingerprinted. Please. And the majority endorses that result but

provides no better explanation.

The village and the majority also defend the booking fee by

suggesting that some sort of post-deprivation remedy is

available and thus cures any due process problem. See Major-

ity at 11, citing Hudson v. Palmer, 468 U.S. 517, 533 (1984). That

argument fails on both legal and factual grounds. The legal

problems begin with the fact that the deprivation of property

here is not random or unauthorized, as it was in both Hudson

and the case it followed, Parratt v. Taylor, 451 U.S. 527 (1981),

where a post-deprivation remedy was the only practical

remedy for unauthorized wrongs. Hudson had to distinguish

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982), which held

that a post-deprivation remedy did not satisfy due process

where the property deprivation was effected pursuant to an

established government procedure. Hudson, 468 U.S. at 534.

That’s why the Hudson holding was framed this way: “We hold

that an unauthorized intentional deprivation of property by a

state employee does not constitute a violation of the procedural

requirements of the Due Process Clause of the Fourteenth

28 No. 12-2619

Amendment if a meaningful postdeprivation remedy for the

loss is available.”Id. at 533 (emphasis added).

The majority’s analysis simply overlooks the word “unau-

thorized” in Hudson, and the deprivation here was of course

the intended and authorized result of the village’s ordinance.

Under well established law, the possibility of a later lawsuit as

a remedy therefore does not cure the constitutional problem.

See generally, e.g., Schepers v. Commissioner, 691 F.3d 909, 916

(7th Cir. 2012) (making this point based on Parratt and Logan).3

The second legal problem is that the terms of the ordinance

leave no room for a remedy. Once an officer decides to arrest

a person, there is nothing more to decide. The majority points

out correctly that the chances of an error in collecting the fee

are, under the terms of the ordinance, minuscule. But that is

only evidence of the constitutional problem—punishment

before verdict—not a constitutional defense. See Johnson v. City

of Evanston, 250 F.3d 560, 562 (7th Cir. 2001) (city’s contention

that plaintiff had no remedy for deprivation of use of his car

“just [made] Johnson’s constitutional point”).

3

Because the deprivation here is not a random or unauthorized violation,

the village could not cure the constitutional defects by merely creating a

procedure for some arrestees—such as those not convicted—to ask for a

refund of the property taken from them. As the case law interpreting Parratt

and Logan shows, if the government takes a person’s property without due

process, deliberately and pursuant to clear policy, the existence of a post-

deprivation remedy is not a constitutional vaccine. That’s evident from

Hudson’s discussion of Logan and from Doherty v. City of Chicago, 75 F.3d

318, 323 (7th Cir. 1996), also cited by the majority, which recognized exactly

the same distinction between authorized and unauthorized deprivations of

property.

No. 12-2619 29

The factual problems with the supposed later remedies are

laid bare when the village and the majority point out that some

arrestees might have a civil claim for false arrest. That is true,

but as noted above, a civil claim for false arrest is available

only to people arrested without probable cause, not to many

others never convicted of a crime. Second, even if the arrest

was without probable cause and the damages for false arrest

might include the booking fee, the amount of property taken

is too modest for the remedy to be meaningful without the

help of a class action. As we have said in related contexts,

“only a lunatic or a fanatic sues for $30.” Carnegie v. Household

Int’l, Inc., 376 F.3d 656, 661 (7th Cir. 2004). For a modest civil

claim in the DuPage County courts, the filing fee alone is $150.4

So this booking fee ordinance imposes either punishment

before verdict, like the Queen of Hearts’ justice in Alice in

Wonderland, or an Orwellian “user fee” on the unwilling

arrestee who may well have done nothing wrong. Either way,

it’s an unconstitutional deprivation of property without due

process of law.

4

In two other odd passages, the majority suggests that an arrestee or at

least an “ordinary citizen” who believes he should not have been arrested

could complain to either the arresting officer or a judge in his criminal case,

which should guard against an erroneous deprivation. Majority at 9 and 11.

Yet as the majority acknowledges, the ordinance itself provides no such

opportunity. It requires the fee to be imposed on all arrestees, without room

for discretion. That’s why the majority finds so little risk of error in its

Mathews v. Eldridge balancing, so it’s difficult to see how the possibility of

an improvised and informal appeal for (unauthorized) mercy would help

solve the constitutional problem here.

30 No. 12-2619

IV. The Case Law

The majority defends its decision by citing several cases

allowing jails and prisons to charge inmates for the cost of

room and board. See Majority at 11. In the first of the cited

cases, Tillman v. Lebanon County Correctional Facility, 221 F.3d

410 (3d Cir. 2000), the Third Circuit found no due process

violation when a jail assessed a daily housing fee against an

inmate in custody for state parole violations. Tillman does not

support the majority’s decision here because the plaintiff there

had been convicted of a crime; he had already had ample

procedural protections. See 221 F.3d at 414 (money confiscated

when plaintiff was returned to prison). The majority finds a

little more support from Slade v. Hampton Roads Regional Jail,

407 F.3d 243, 253–54 (4th Cir. 2005), which upheld a fee of one

dollar per day for pretrial detainees. While I disagree with

much of the reasoning in Slade, which did not recognize the

“sentence first, verdict afterwards” problem, the Fourth Circuit

at least took care to point out that a detainee who was acquit-

ted of charges was entitled to a refund, id. at 247, 254 n.9, and

the court also assumed a grievance procedure offered a

remedy. Neither is true under the village’s ordinance here.

The majority finds its strongest support in Sickles v. Camp-

bell County, 501 F.3d 726 (6th Cir. 2007), which rejected a due

process challenge to a county jail’s policy of withholding cash

from inmates to cover some costs of incarceration. The Sixth

Circuit recognized that it would be a constitutional problem to

deprive an inmate of his property if he were not convicted of

a crime, but the court avoided those problems by finding that

the two inmate plaintiffs could not raise those claims. One had

been convicted and ordered to “pay the costs of proceeding

No. 12-2619 31

herein,” and the other’s claim would not be ripe unless and

until he were acquitted and the county refused a claim for

refund. See 501 F.3d at 732–33. While I disagree with the Sixth

Circuit’s reasoning in Sickles because it also failed to recognize

the “sentence first, verdict afterwards” problem, the majority

here seems to reach beyond even Sickles by finding that anyone

arrested with mere probable cause can be charged a non-

refundable booking fee.

While we are considering applicable case law, I commend

the sound reasoning in Roehl v. City of Naperville, 857 F. Supp.

2d 707 (N.D. Ill. 2012), and Allen v. Leis, 213 F. Supp. 2d 819

(S.D. Ohio 2002). In Roehl, Magistrate Judge Schenkier correctly

denied a motion to dismiss a due process challenge to a very

similar fifty dollar booking fee that applied to all arrestees and

provided no post-deprivation remedy. His careful opinion

addressed and rejected all the arguments made by the village

in this case. In Allen, Judge Spiegel correctly granted summary

judgment, holding that a very similar thirty dollar booking fee

violated due process even where there was a process for

seeking a later refund, after acquittal or dismissal of criminal

charges.

In a variation on the user fee theory, the village (but not the

majority) also tries to justify its booking fee as merely an

“administrative fee” that should be permitted under the

reasoning of Schilb v. Kuebel, 404 U.S. 357 (1971), and Payton v.

County of Carroll, 473 F.3d 845 (7th Cir. 2007), even for arrestees

who are never convicted of a crime. A closer look at the more

precise reasoning of those decisions shows, though, that the

booking fee here denies due process of law. In Schilb, the

Supreme Court upheld an Illinois law that allowed a county to

32 No. 12-2619

charge an administrative fee of one percent of the total bail

amount for pretrial defendants using the court-administered

bail-bond system. That fee applied to defendants who were

ultimately acquitted. Payton upheld a similar administrative

fee imposed on people posting bond.

There are two key differences between those cases and this

one. First, the use of the reformed bail bond system in Illinois

was voluntary in both cases. As the opinion in Payton made

clear, there were other avenues for obtaining liberty before trial

without using a bail bond (posting the full amount of security

or release on personal recognizance), see 473 F.3d at 851, and

the same was true in Schilb. See 404 U.S. at 367–68. There is

nothing remotely voluntary about the village’s booking fee.

Second, as we also explained in Payton, the administrative fees

for bail bonds in both Schilb and Payton were imposed in a

court system with “a number of safeguards against detention

of people who cannot afford this fee,” and the opportunity to

ask a court to reduce bail was an important procedural

protection. 473 F.3d at 851–52. There are no similar protections

in this case. The village cannot save this booking fee by

labeling it an “administrative fee.”

More closely on point is the Supreme Court’s decision in

Giaccio v. Pennsylvania, 382 U.S. 399 (1966), discussed in Schilb.

In Giaccio, the Court struck down an old Pennsylvania statute

that allowed a jury in a criminal case to assess court costs

against a defendant whom it acquitted. The Court majority

limited its holding to the narrow ground that the statute gave

the jury no standards so that the imposition of costs on any

acquitted defendant would be arbitrary. 382 U.S. at 403.

Justices Stewart and Fortas both concurred separately on the

No. 12-2619 33

more fundamental ground that it violates the Due Process

Clause to impose a penalty or costs on an acquitted defendant.

Id. at 405. That’s exactly right, and it’s the problem with the

village’s booking fee here.

V. Conclusion

Perhaps a reader might wonder whether this case deserves

a dissent. It involves, after all, only thirty dollars and one small

municipality in northern Illinois. While thirty dollars may not

seem like much to the governing class in our society, including

lawyers and judges, it is for too many people a vital amount of

cash. Thirty dollars is roughly the average allotment under the

federal Food Stamp program (now known as the Supplemental

Nutrition Assistance Program) to help feed an adult for a

week. It’s also the federal minimum wage for more than half

a day of work. The amount at stake may affect the timing and

extent of process that is due, such as whether a pre-deprivation

hearing is needed. But property is property, and the govern-

ment cannot take even one dollar without due process of law.

This ordinance offers none.

The issue here also reaches far beyond the Village of

Woodridge. In this circuit alone, district courts have addressed

due process challenges to similar local booking fees in Roehl v.

City of Naperville, 857 F. Supp. 2d 707 (N.D. Ill. 2012) (denying

motion to dismiss due process challenge); Bailiff v. Village of

Downers Grove, 2011 WL 6318953 (N.D. Ill. Dec. 16, 2011)

(granting motion to certify plaintiff class); Silvas v. Dominguez,

2006 WL 1128233 (N.D. Ind. Apr. 24, 2006) (granting judgment

for defense after trial); and Sanchez v. Becher, 2003 WL 1563941

(S.D. Ind. Jan. 31, 2003) (granting motion to certify plaintiff

34 No. 12-2619

class). The governments in Roehl, Bailiff, and Sanchez settled

and modified their practices, but the majority’s decision will,

if it stands, invite local governments throughout the circuit and

perhaps elsewhere to impose such booking fees. For govern-

ments under fiscal pressure, the temptation may be strong to

raise money with such fees on a group unlikely to have

political clout.

I hope, though, that the Village of Woodridge and other

local governments considering such fees see the clear warning

signs from even the majority. Both the majority and concurring

opinions seem to leave the door open to suits on behalf of at

least the many arrestees who are not convicted of a crime or

those who are arrested without probable cause. See Majority

at 7 & n.2; Concurrence at 16–17. Neither opinion attempts to

justify imposing arrest fees on such people.

Properly understood, the village’s booking fee violates the

due process rights of all arrestees, but the violation is most

obvious for people who are never convicted or even prose-

cuted. As noted above, that is a sizable proportion of all

arrestees. Depending on the geographic jurisdiction and the

charge, it may range from perhaps 30 percent up to nearly 50

percent of arrestees. That is a very high error rate for purposes

of Mathews v. Eldridge and it’s a lot of unjustified criminal fines

imposed without due process of law. Future suits on behalf of

such persons, with attorney fee awards under 42 U.S.C. § 1988,

could quickly become much more expensive for local govern-

ments than any short-term financial gain the fees might

provide.

No. 12-2619 35

For all these reasons, I would reverse the judgment of the

district court and remand the case for further proceedings.