Markadonatos v. Vill. of Woodridge

• Decision Date: 21 July 2014
• Docket Number: No. 12–2619.,12–2619.
• Citation: 760 F.3d 545
• Parties: Jerry G. MARKADONATOS, individually and on behalf of all others similarly situated, Plaintiff–Appellant, v. VILLAGE OF WOODRIDGE, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

760 F.3d 545

Jerry G. MARKADONATOS, individually and on behalf of all others similarly situated, Plaintiff–Appellant,

v.VILLAGE OF WOODRIDGE, Defendant–Appellee.

No. 12–2619.

United States Court of Appeals,Seventh Circuit.

Argued May 30, 2013.

Reargued En Banc June 3, 2014.

Decided July 21, 2014.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11 C 7006–James F. Holderman, Judge.

James Burnham, Meghan Sweeney, Jones Day, Chicago, IL, Bryan Leitch, Jones Day, Washington, DC, Peter S. Lubin, Ditommaso Lubin, P.C., Oakbrook Terrace, IL, James Shedden, Deer Park, IL, for Plaintiff–Appellant.

Christopher Keleher, Keleher Appellate Law Group, Brandon K. Lemley, Paul A. Rettberg, Querrey & Harrow, Chicago, IL, for Defendant–Appellee.

Before WOOD, Chief Judge, and POSNER, FLAUM, EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, TINDER, and HAMILTON, Circuit Judges.

PER CURIAM.

The court is divided. Five judges in two groups (Judges Posner, Flaum, and Kanne in one; Judges Easterbrook and Tinder in the other) vote to affirm the judgment of the district court. Judge Sykes votes to remand with instructions to dismiss the case for want of standing to sue. The remaining four judges (Chief Judge Wood and Judges Rovner, Williams, and Hamilton) vote to reverse. Because no position commands a majority, the judgment of the district court is affirmed by our divided court. Durant v. Essex Co., 74 U.S. (7 Wall.) 107, 112, 19 L.Ed. 154 (1868).

POSNER, Circuit Judge, joined by Circuit Judges FLAUM and KANNE concurring in the judgment.

The plaintiff was arrested in the Village of Woodridge, Illinois, for shoplifting, an Illinois Class A misdemeanor. 720 ILCS 5/16–25. Upon arriving at the police station he was told that an administrative fee of $30.00 is required upon completion of any custodial arrest/booking procedure. He paid the $30 on the spot, posted bond, and was forthwith released, without being jailed. He later pleaded guilty to the shoplifting charge and was ordered to undergo 12 months of court supervision and to pay fees and fines totaling $785 (on top of the $30 fee that he had paid at the police station). He claims to have completed his period of supervision successfully, and that as a result the shoplifting charge was dismissed, “without adjudication of guilt,” pursuant to 730 ILCS 5/5–6–3.1(f). The defendant (the Village of Woodridge) denies that the plaintiff obtained such a dismissal, but since the complaint was dismissed on the pleadings, with no findings based on evidence, we'll assume that the plaintiff's allegation is correct. Nothing turns on whether it is or is not correct, however, as we'll see.

The suit (a class action suit, but dismissed by the district judge before he decided whether to certify a class) challenges the constitutionality of subsection 5–1–12(A) of section 5–1–12 (captioned “Administrative Fees”) of the Woodridge Village Code. The subsection imposes a “booking fee” of $30 “when posting bail or bond on any legal process, civil or criminal, or any custodial arrest including warrant.” Presumably, “when posting” means “on a person who posts.” The subsection is poorly drafted; its poor drafting will figure in our analysis. Although the ordinance has been repealed and the repeal moots the plaintiff's request for declaratory and injunctive relief, it occurred after he paid his $30 and so does not nullify his claim for damages.

The plaintiff appealed and a panel of this court affirmed the dismissal of the suit by a split vote. 739 F.3d 984 (7th Cir.2014). Judge Stadtmueller of the Eastern District of Wisconsin, sitting by designation, wrote the majority opinion. Judge Sykes wrote a concurring opinion and Judge Hamilton a dissenting opinion. The plaintiff petitioned for rehearing en banc, and his petition was granted.

Judge Hamilton's dissent assumed that the ordinance requires imposition of the $30 charge on anyone who's arrested, whether or not he's released from custody immediately either because he posts bail (that is, pays money out of his own pocket to be released) or posts a bond (borrows the required bail money). There are false arrests, how frequently or infrequently in Woodridge we have no idea, and to be forced to pay even a small amount of money for being falsely arrested may present serious constitutional issues. But the court doesn't have to decide any of those issues—indeed, it should not reach them.

There is a critical difference between a fee for posting bail and a fee (if that's the right word for it) for being arrested. To be released on bail, whether having been arrested falsely or not, is a benefit that the Village of Woodridge confers on the people whom its police officers arrest. Most people who are arrested do not want to spend any time in jail, and this is true whether or not there are solid grounds for the arrest, as there were in the case of our plaintiff. He preferred to pay the cost of a bail bond ($150, which was 10 percent of the amount of bail required for him to be released, because his arrest had been for a Class A misdemeanor; see 720 ILCS 5/16–25(a)(1), (f)(1); Ill. Sup.Ct. R. 528(c)).

The cost of the bond was borne by the court and so ultimately by the county or the state. (Illinois does not permit use of commercial bondsmen.) But the Village doubtless bore some expense as well, in making sure that the bond was proper and therefore that the plaintiff could and should be released pending trial. County sheriffs are authorized to charge a fee for bond services, see 55 ILCS 5/4–5001, and in fact DuPage County (in which Woodridge is located) after a cost study set its bond fee at $30. DuPage County Code § 20–130.

The County's cost study found that the cost, per person arrested, to the Sheriff's Department of providing bond was $44.59. DuPage County Sheriff Cost of Service Analysis 1–2 (Aug. 9, 2002). On the basis of the study the County raised its fee for the service, which had been $25, to $30. It's thus no surprise that Woodridge, when an arrest is made by its officers rather than by the County Sheriff's police, charges the same fee. There is no contention that for the same service provided by the Village a fee of $30 is excessive; the County study suggests if anything that the fee doesn't cover the Village's costs. Anyway the constitutionality of a fee for a government service does not depend on proof of an exact equality between the cost of the service and the size of the fee. Massachusetts v. United States, 435 U.S. 444, 464–67, 98 S.Ct. 1153, 55 L.Ed.2d 403 (1978); Mueller v. Raemisch, 740 F.3d 1128, 1134 (7th Cir.2014); Oneida Tribe of Indians of Wisconsin v. Village of Hobart, 732 F.3d 837, 841–42 (7th Cir.2013); Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 651 F.3d 722, 728–29 (7th Cir.2011) (en banc); Broussard v. Parish of Orleans, 318 F.3d 644, 660 (5th Cir.2003) (“even though the connection between the bail fees charged and the administration of the bail-bond system may be somewhat tenuous, ... arrestees have failed to present evidence sufficient to show that the fees imposed are arbitrary”); compare State v. Gorman, 40 Minn. 232, 41 N.W. 948, 949 (1889).

If, then, Woodridge's ordinance imposes the $30 charge only when the person arrested “post[s] bail or bond,” the charge is a lawful fee for a government service and the plaintiff's case collapses. Schilb v. Kuebel, 404 U.S. 357, 370–71, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971), states that “ § 110–7 [of Article 110 of the Illinois Code of Criminal Procedure of 1963] authorizes retention of the 1% as ‘bail bond costs.’ This is what that description implies, namely, an administrative cost imposed upon all those, guilty and innocent alike, who seek the benefit of § 110–7. This conclusion is supported by the presence of the long-established Illinois rule against the imposition of costs of prosecution upon an acquitted or discharged criminal defendant, and by the Illinois court's own determination that the charge under § 110–7(f) is an administrative fee and not a cost of prosecution imposed under [Illinois law] only upon the convicted defendant” (citations omitted). And in Payton v. County of Carroll, 473 F.3d 845, 852 (7th Cir.2007), we read that “the sheriffs have a legitimate interest in recouping some of the costs of administering the bail system. If they had to offer another separate set of hearings devoted only to these small administrative fees, they might opt out of the bail bond process altogether—a step that Illinois would permit them to take. Every detainee would then need to wait for the office hours of the county clerk, rather than the subset of detainees who now elect that option. We conclude that plaintiffs have not stated a claim for a deprivation of due process.”

The Supreme Court held many years ago, in Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958), that the right to travel abroad is a “liberty” protected by the Constitution's due process clauses. Nevertheless you must pay for a passport to be allowed to travel abroad. Similarly, you have a right not to be arrested if there is no probable cause to arrest you; but if you have the misfortune to be wrongfully arrested (though the arrest of the plaintiff in this case was not wrongful), you still must post bail if you want to avoid being jailed pending a judicial determination whether there was probable cause to arrest you. The right to bail, like the right to travel abroad, is a valuable right for which the person seeking it, whether guilty or innocent, must pay. That is what Schilb and Payton hold. The $30 fee is a part of that cost—a small part.

The plaintiff's counsel tells us that the $30 “booking fee” provision is unique among the provisions of the ordinance because it alone imposes a fee for what may be innocent conduct mistakenly believed by police to be illegal. He instances the $15 fee for “release of [an] impounded dog or cat.” But of...