                                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.
