Wednesday, July 30th, 2014

Seventh Circuit Divided on Municipal Booking and Bail Fees

We have previously reported on administrative tow fees which police departments are entitled to charge by statute.  Municipal police departments are also able to obtain restitution for responding to emergencies caused by drunk drivers.  In a similar attempt to recoup money for its police department, the Village of Woodridge recently imposed a $30 “booking fee” to be charged to any arrestee “when posting bail or bond on any legal process, civil or criminal, or any custodial arrest including warrant.”

Jerry Markadonatos was charged with shoplifting in Woodridge and was charged the booking fee.  He was bailed out of the village jail the same day and subsequently pleaded guilty to shoplifting.  He challenged the booking fee in federal court, contending that it was unconstitutional to charge a $30 booking fee to everyone arrested by the Village. The trial court found that the fee was valid as to Markadonatos because “it is rational to share the costs of incarceration with those who through their actions necessitate that those costs be incurred.”  The court further found that Markadonatos could not challenge the constitutionality of the booking fee as to persons never convicted or arrested without probable cause because he pled guilty.

A three judge panel of the Seventh Circuit filed three separate opinions but affirmed the trial court’s decision in Markadonatos v. Village of Woodridge.  The plaintiff requested a hearing before the full Circuit, and the Village quietly repealed the booking fee ordinance. The opinions expressed by the full Seventh Circuit are somewhat disjointed and do not provide clear guidance.  Five judges voted to affirm the trial court’s decision (albeit for different reasons), one wanted to require dismissal outright, and four wanted to reverse the trial court resulting in a 5-5 split and the trial court’s holding remaining intact. While each group of the judges took a different position on the fees, there were some common threads that will likely govern future resolution of these cases.  Most of the judges who voted to uphold the “booking fee” did so on the basis that it could be interpreted as a “bail fee.”  A majority of all the judges expressed doubt that a non-refundable fee charged upon arrest would be valid.  However, a majority also suggested that a refundable booking fee may be valid.  All judges seemed to agree that a fee for posting bail, in an amount reasonably related to the costs of processing bail, would be constitutional.

Thus, there are a few valuable takeaways from Woodridge:

  • Non-refundable booking fees charged to all arrestees are almost certainly unconstitutional, since the arrestee is deprived of property without any process to later challenge the fee.
  • Refundable booking fees charged to all arrestees may be valid.  At minimum, the arrestee would need to have a fair opportunity to challenge the arrest (and therefore the fee), similar to an administrative hearing to challenge impound fees.
  • Fees are almost certainly valid if they are charged only to those arrestees who choose to post bail, so long as the fee is reasonably related to the cost of processing bail.  A study referenced in the Woodridge cases found that the cost in DuPage County for processing bond was about $45 per occurrence, and the Village charged $30.

Finally, any booking or bail fee must be clearly drafted with constitutional safeguards in mind.  Now that the Woodridge case has given guidance to civil rights attorneys on how to properly develop their case, municipalities should expect that incorrectly applied or drafted booking or bail fee ordinances could be met with litigation and possibly class action suits.


Gregory J. Barry Author: Gregory J. Barry