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July 22, 2014

What do you get when you mix a challenge to a local $30 "booking fee" with a lot of very smart federal judges?

The answer to the seemingly silly question in the title of this post is provided by the 50+ pages of very interesting and dense discussions coming from a number of Seventh Circuit judges in its en banc ruling yesterday in Markadonatos v. Village of Woodridge.  Will Baude at The Volokh Conspiracy provides here a relatively simple account of what transpired on appeal after Jeff Markadonatos challenged the constitutionality of being subject to a $30 administrative fee under a local ordinance following his custodial arrest and booking procedure.  And Judge Sykes' opinion starts with this account of the fascinating en banc hash that the case became:

The ground has shifted under this case since we granted rehearing en banc.

• Three members of the court now propose to affirm by invoking the doctrine of constitutional avoidance, an option not raised by the parties.  See ante, at 7–15 (Posner, J., concurring in the judgment).

• Four members of the court would reverse and remand on the merits, though on a different analysis than originally argued by the plaintiff or adopted by the panel dissent. Compare post, at 45–49 (Hamilton, J., dissenting), with Markadonatos v. Village of Woodridge, 739 F.3d 984, 994–1000 (7th Cir. 2014) (Hamilton, J., dissenting), and Appellant’s Br. at 9–28, 33–40, ECF No. 22 (panel brief).

• For my part, en banc review has reinforced my earlier doubts about the plaintiff’s standing. I would vacate and remand with instructions to dismiss for lack of jurisdiction.

• Judges Easterbrook and Tinder substantially agree with me that the plaintiff lacks standing, although they conclude that a narrow aspect of the case is justiciable.  See ante, at 17 (Easterbrook, J., concurring in the judgment).  But they also disagree with Judge Posner’s use of the constitutional-avoidance doctrine and instead would hold that the justiciable remainder is not viable as a due-process claim, as the plaintiff has argued it, but only as an equal-protection claim, which fails on the merits.  See id. at 18–22.

In short, the en banc court cannot agree on what questions the case raises, whether the plaintiff is the right person to raise them, whether they have been properly preserved, or what doctrinal framework applies.  Our fractured nondecision suggests that this case was a poor vehicle for resolving the constitutionality of a jail booking fee.

July 22, 2014 at 05:54 PM | Permalink


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A jail booking fee is akin to kidnapping someone and charging money to let them loose. What is the difference?

Posted by: Liberty1st | Jul 22, 2014 10:01:12 PM

The difference is that this fee applied even when they weren't let loose.

Posted by: hmm | Jul 22, 2014 10:24:29 PM

This is why people hate lawyers. To real people, the question comes down to this: is it fair for the government to arrest you and then charge you a fee for the privilege of being arrested, even if you are not guilty of a crime?

Virtually every single person in the world would say "no." The Seventh Circuit can't figure it out.

The Seventh Circuit also asks, "Should you be able to get your $30 bucks back?" Virtually every single person in the world would say "yes." But a bunch of judges can waste endless pages of text arguing about it and not reach the same conclusion that almost everyone in the world agrees is the right one.

Meh, it's late at night. Maybe there's something I'm missing. I admit I haven't read the opinions, because I don't want to. I want Mr. Markadonatos to get his $30 back. Seems like it should be a simple matter. But sometimes I think that lawyers are still paid by the word.

Posted by: C.E. | Jul 23, 2014 2:18:56 AM

I realize it's convoluted, but a reader of the opinions sees some of the complications.

For instance, the guy here actually pled guilty and paid fees and fines. He says charges were later dismissed but only after successfully undergoing supervision, a form of probation to an uneducated eye. So, yeah, he very well might not be the best one to have standing.

Not that I want to figure out exactly what happened here given the lateness of the hour. If the person was not convicted, it would be an easier case. OTOH, as one of the judges noted, there was probable cause. This allows the state in various cases to detain a person, if only for a short period of time in various cases. Seems worse than a booking fee, doesn't it? Maybe, it should just come out of the person's taxes.

One difference btw from kidnapping is that there was PROBABLE CAUSE, which is LEGAL and meets a certain standard. Kidnapping is ILLEGAL and does not. If inability to pay requires staying in jail, I see a valid equal protection claim. Still wouldn't be kidnapping. I think one need not be a lawyer to see this.

Posted by: Joe | Jul 23, 2014 3:09:46 AM

This is a huge question by the number of people it affects, and by the money amounts involved. The Rules of the Road are rarely covered in law school. They should be of interest to this blog. They are run by the Rules of Criminal Procedure.They affect millions of people, involve $billions.

I get a ticket for running a stop sign. The fine is $25. I want to plead guilty and accept my punishment.

The ticket does not read, send $25. It reads, send $115. How? Fees for EMT, for medical malpractice subsidies, and fees to computerize the courts. What the ...? What do they have to do with my infraction, and why should I have to pay them? In a nearby county, they added other fees for non-residents, such as leasing of the police car for the duration of the traffic stop, the salary of the police, and of the staff running the computers he used to look things up, court clerks time, amounting up to $2000, not $115. That was struck down, but only because of selective charging to non-residents.

Those fees seem unjustified. A class action, constitutional tort claim should retrieve all of them back to the victims of this scam.

Posted by: Supremacy Claus | Jul 23, 2014 5:38:38 AM

The inability of the En Banc Court to come to a majority opinion might mean that the U.S. Supreme Court will grant Certiorari in this case. I have also had a problem with the legality and Constitutionality of jails sending former inmates a per diem bill ($40 per day) for the time they spent in jail, even if the defendants were ultimately acquitted of the charges or the case was dismissed by the prosecution.

Posted by: Jim Gormley | Jul 23, 2014 11:47:46 AM

There is a bigger picture here that people are not talking about. It is all the fad these days to charge what are in essence criminal justice user fees. Need a public defender? The state will charge you! A sex offender needs an ankle monitor? The state will charge you! Get arrested even if innocent? The state will charge you! So where does one draw the line? Why is one user fee acceptable and another unacceptable? After an arrest? After a criminal charge? After a guilty verdict? In my view these types are user fee charges are /never/ acceptable and rank as a gross abuse of power. However, it is my observation that such a categorical rejection never gets any traction. So I invite others to invent reasons for one fee and not another...have at it.

Posted by: Daniel | Jul 23, 2014 1:16:11 PM

Court costs, e.g, are repeatedly charged in various cases and accepted so don't know what in all cases it is a "gross abuse of power" to charge someone who is guilty.

The term "gross abuse of power" is a serious one. I think it's an abuse of the term to apply it to all user fees. There are lines. There is a big difference between charging what is in effect a criminal fine to a convicted criminal than a user fee to someone found innocent. If you need a public defender, it means you are financially unable to pay for your own defense. If you are somehow able to pay for one, it is a conclusion you aren't quite too poor, a sort of "pay as you are able" fee.

As a matter of public policy, various fees might be a bad idea. This is different from a "gross abuse of power." But, my use of language at times clashes with others.

Posted by: Joe | Jul 23, 2014 4:46:29 PM

Sure Joe there are lines. That's not the question. The question is are there principled lines? I don't think so, in this case. I don't agree with your construction that, for example, the cost of an ankle monitor is best characterized as a "criminal fine". It is a cost that the criminal bears, to be sure, but that doesn't make it a criminal fine as that term of legal art has been historically understood. The whole issue of what is or is not a fine is a question beyond the scope of what I have time to discuss right now so I'll stick with my point. What is the principled basis for distinguishing one cost from another? A guilty verdict, a criminal charge, an arrest? What is the principle that cabins the arbitrary use of power by the sovereign?

Posted by: Daniel | Jul 23, 2014 11:04:40 PM

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