7th Circuit Can't Decide If Jail 'Booking Fee' Is Constitutional
In Woodridge, Illinois, it used to be that everyone who was arrested and then bailed out of jail had to pay a $30 fee. Jerry Markadonatos was arrested for misdemeanor shoplifting, arrested, booked, paid bail, and was released. Later, he pleaded guilty, served 12 months of probation, and then had the charges dismissed.
This misdemeanor and the $30 booking fee, however, led to a big split on an en banc panel of the Seventh Circuit Court of Appeals. They disagreed on what the problem was, how it applied to Markadonatos, and whether he even had standing in the first place.
Here's a rundown of the Seventh Circuit panel's four separate opinions in Markadonatos v. Village of Woodridge:
Dodging the Issue
Markadonatos urged the court to see the booking fee as a charge levied just for being arrested. If he were truly innocent, then charging him an "arrest fee" without a chance to contest it could be a violation of due process.
But Judge Richard Posner, joined by two others, found the ordinance authorizing the fee (which has since been repealed) was poorly drafted and could also be interpreted as a fee for the service of being bonded out. Judge Posner invoked the doctrine of constitutional avoidance in order to sidestep the due process issue, concluding that the $30 fee was for the service of being released on bail, which Markadonatos was. Case closed... right?
$30 Isn't a Due Process Violation
No, wait: Case still open! Judge Frank Easterbrook, joined by Judge John Tinder, would have gone whole-hog into deciding whether the ordinance was constitutional. And Easterbrook would have decided that it was.
Thirty bucks, Easterbrook asserted, was a minimal intrusion compared to the other intrusions that come with being arrested on probable cause, like spending time in jail. If spending time in jail, only to be acquitted later, isn't a due process violation, then $30 definitely isn't enough to rise to the level of a due process violation.
No Standing for You!
Separately, Judge Diane Sykes concluded that Markadonatos didn't have standing to pursue his case, as he didn't challenge the validity of his arrest and the court found him guilty. "As such, he has suffered no harm that is fairly traceable to the alleged deprivation of process about which he complains," Judge Sykes wrote.
The 2nd Dissent
Four other judges, in an opinion by Judge David Hamilton, flatly disagreed with Posner's use of constitutional avoidance to interpret the fee as merely incidental to bail and not arrest: "His opinion chooses instead to decide a different case, one shaped by rewriting the ordinance and overlooking the plaintiff's allegations." Judge Hamilton would have found that the fee was for the "service" of being arrested, and without a way to recoup the fee, would have held the ordinance unconstitutional.
The punchline is that, after 55 pages and four opinions, there was no majority in favor of either affirming or denying, meaning the District Court's decision to dismiss the case was automatically affirmed. In the end, Markadonatos wasn't the right plaintiff (he wasn't innocent, so the fee would apply to him anyway) and didn't make the best arguments. As Judge Sykes observed, "Our fractured nondecision suggests that this case was a poor vehicle for resolving the constitutionality of a jail booking fee."
Related Resources:
- Completely Fractured En Banc 7th Circuit Opinion on Due Process (The Volokh Conspiracy)
- On Top of Jail Time, Prisoners Now Face Fees and Surcharges (AlterNet)
- Judge Posner Benchslaps Student Over Lawful Marijuana Search (FindLaw's U.S. Seventh Circuit Blog)
- 5 Tips: How to Avoid Getting Benchslapped in the 7th Cir. (FindLaw's U.S. Seventh Circuit Blog)
