Woodridge, Illinois, outside of Chicago, has a curious way of meting out justice. You may have a presumption of innocence under the Constitution, but if police arrest you, you still have to pay for the pleasure of the arrest. Starting this year, anyone arrested in a Chicago suburb must pay a $30 booking fee . . . even if they are found innocent.
The village of Woodridge imposes the charge on anyone booked by their small police department. A class action was filed to challenge the booking charge and the United States Court of Appeals for the Seventh Circuit affirmed the dismissal of the case. The challenge was brought by Jerry Markadonatos who was arrested and charged with retail theft on January 8, 2011, and taken to jail. He was charged for the booking but never given hearing at which he could challenge the booking fee. Later, a court ordered that Mr. Markadonatos undergo a period of supervision and Markadonatos successfully completed that period of supervised release. As a result, he received an adjudication of “not guilty” on his record.
U.S. District Judge J.P. Stadtmueller, sitting by designation, said that there was simply no fundamental right implicated and that the “$30 fee is extremely modest, and of an amount that does not rise to the level of a fundamental right.” Spoken like someone with a guaranteed salary. For many, $30 is not a small amount and then there is the notion that a citizen pays a penalty for an arrest later found to be invalid or unsupported.
Stadtmueller however insisted that, subject to the rational basis test, the charge is rationally related to the desire “to offset the cost of booking arrestees, or at the very least to collect revenue.” That is an interesting rationale since any charge could be defended as just a simple desire to “collect revenue.”
In concurrence, Judge Sykes emphasized that it all came down to a lack of standing: “the important point for our purposes is that because Markadonatos concedes that he was arrested on 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.” I have long been a critic of standing rules that have been steadily narrowed to bar review of cases. Indeed, as I have discussed in both columns and testimony, standing limits have barred review of flagrantly unconstitutional acts by the government.
In dissent, Judge Hamilton gives a powerful reply to his colleagues:
This should be a simple case. The village’s “booking fee” ordinance is unconstitutional 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.
Hamilton dismisses the size of the penalty as irrelevant:
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 acquittal, so that as many as 30 percent and perhaps nearly 50 percent of arrestees may pay the fee without any criminal conviction.
The dismissal of this action is highly troubling both in the dismissive attitude of the majority opinion and the standing barrier emphasizes in the concurrence. There seems precious little concern by the two judges over the implications of their ruling in allowing such charges to be imposed by the government.
What do you think?
Kudos: Michael Blott